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CASE NO.: Appeal (crl.)  526 of 2001

PETITIONER: Prakash Kumar @ Prakash Bhutto

RESPONDENT: State of Gujarat

DATE OF JUDGMENT: 12/01/2005

BENCH: R.C.LAHOTI CJI & B.N.AGRAWAL & HOTOI KHETOHO SEMA & G.P.MATHUR & P.K.BALASUBRAMANYAN  

JUDGMENT: JUDGMENT

WITH CRIMINAL APPEAL NO. 545 OF 2001

Abdulwahab Abdulmajid Shaikh & Ors.                     \005 Appellants Versus State of Gujarat                                        \005 Respondent

       and

CRIMINAL APPEAL NO. 665 OF 2001

Musa Khan @ Baba Khan                                   \005 Appellant Versus State of Gujarat                                        \005 Respondent

DELIVERED BY: HOTOI KHETOHO SEMA, J.

H.K.SEMA,J.

               All these appeals are directed against the judgment and  order dated 19th March, 2001 passed by the Designated Court No.3  at Ahmedabad in Terrorist Case No.2 of 1997, Terrorist Case No. 33  of 1994 and Terrorist Case No. 16 of 1995.    The two-Judge bench  before whom these appeals were posted for hearing referred the  matters to a three-Judge Bench by an order dated 24.9.2002.  The  said Order reads as under:-

"The issue involved concerns the admissibility of a  confession in terms of Section 15 of the Terrorist and  Disruptive Activities (Prevention) Act, 1987 ( in short  "TADA ACT").  Consequently, therefore, the other  provisions as contained in Sections 12 and 18 have to be  read in order to assess the legislative intent therein.

This Court in State   v.  Nalini, 1999 (5) SCC 253, in  paragraphs 80 and 81 stated the law to be as below:-

       "80. Section 12 of TADA enables the  Designated Court to jointly try, at the same  trial, any offence under TADA together with

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any other offence "with which the accused  may be charged" as per the Code of Criminal  Procedure.  Sub-section (2) thereof empowers  the Designated Court to convict the accused,  in such a trial, of any offence "under any other  law" if it is found by such Designated Court in  such trial that the accused is found guilty of  such offence.  If the accused is acquitted of  the offences under TADA in such a trial, but  convicted of the offence under any other law,  it does not mean that there was only a trial for  such other offence under any other law.

       81.Section 15 of TADA enables the  confessional statement of an accused made  to a police officer specified therein to become  admissible "in the trial of such a person".  It  means, if there was a trial of any offence  under TADA together with any other offence  under any other law, the admissibility of the  confessional statement would continue to hold  good even if the accused is acquitted under  TADA offences."

       The view expressed above stands in unison with  view   expressed in paragraphs 408 and 674 and same is  noticed as below:-          "408.As to whether any offence under Section 3 or  Section 4 of  TADA is made out in the present case, we  will consider at subsequent stage of the judgment.  In  view of the decision of this Court in Bilal Ahmed Kaloo  Case contention of Mr.Natarajan is rather correct.   However, it appears to us that while holding the  confession to be inadmissible in a trial when the accused  is acquitted of offences under Section 3 or Section 4 of  TADA, provisions of Section 12 of TADA were not taken  into consideration by this Court in the said judgment.   Section 12 reads as under:

       "12.Power of Designated Courts with  respect to other offences. \026 (1) When trying  any offence, a  Designated Court may also try  any other offence with which the accused  may, under the Code, be charged at the same  trial if the offence is connected with such other  offence.  

       (2) If, in the course of any trial under this  Act of any offence, it is found that the accused  person has committed any other offence  under this Act or any rule made thereunder or  under any other law, the Designated Court  may convict such person of such other  offence and pass any sentence authorised by  this Act or such rule or, as the case may be,  such other law, for the punishment thereof."    

"674. Having regard to the provisions of Section 12 of the  TADA Act, the confession recorded under Section 15 will  be admissible in the trial of a person, co-accused, abettor  or conspirator for an offence under the TADA Act or the  rules made thereunder and such other offence with which  such a person may be charged at the same trial under the  provisions of the Criminal Procedure Code provided the

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offence under the TADA Act or the rules made thereunder  is connected with such other offence."

       We are, however, constrained to record our doubt  as regards the state of the law as declared by the 3- Judge Bench of this Court in Nalini (supra).

       The issue, therefore, is whether the confessional  statement would continue to hold good even if the  accused is acquitted under TADA offences and there is a  clear finding that TADA Act has been wrongly taken  recourse to or the confession loses its legal efficacy under  the Act and thus rendering itself to an ordinary  confessional statement before the Police under the  general law of the land.  Nalini (supra) , however,  answers this as noticed above, in positive terms but we  have some doubts pertaining thereto since the entire  justice delivery system is dependent upon the concept of  fairness:  It is the interest of justice which has a pre- dominant role in the criminal jurisprudence of the country  \026 The hall-mark of justice is the requirement of the day  and the need of the hour.  Once the Court comes to a  definite finding that invocation of TADA Act is wholly  unjustified or there is utter frivolity to implicate under  TADA, would it be justified that Section 15 would be made  applicable with equal force as in TADA cases to book the  offenders even under the general law of the land.  There  is thus doubt as noticed above!          On the wake of the aforesaid and having regard to  the decision of the Constitution Bench of this Court in  Pradip Chandra Parija  v.  Pramod Chandra Patnaik,  (2002) 1 SCC 1, we do feel it expedient to direct the  Registry for placing this matter before Hon’ble the Chief  Justice of India for constituting a 3-Judge Bench for the  purpose.  It is ordered accordingly."

In turn, the three-Judge Bench by an order dated 9.3.2004 has  referred the matters to a five-Judge Bench. The order  reads:-

"This matter has been referred to a 3-Judge Bench  doubting the correctness of the decision in State  Vs.   Nalini, 1999 (5) SCC 253 as to admissibility of a  confession in terms of Section 15 of the Terrorist and  Disruptive Activities (Prevention) Act, 1987.    It is stated  that there are similar provisions available even under  Prevention of Terrorist Activities Act (POTA).  If really the  question as posed by the 2-Judge Bench is to be  answered, it could only be done by a Bench of 5 Judges  as Nalini’s case (supra) has been decided by a bench of  three learned Judges.  Therefore, this matter is referred to  5-Judge Bench.  The Registry is directed to place the  papers before Hon’ble the Chief Justice of India for  appropriate orders."  

        This is how the matters have been placed before this Bench.          The Terrorist and Disruptive Activities (Prevention) Act, 1987  (hereinafter referred to as the Act) is a piece of Legislation containing  30 Sections.  Though miniature legislation, the Act tends to be very  harsh and drastic containing the stringent provisions to combat the  menace of terrorism which has taken an endemic form indulging in  wanton killings, arson, looting of properties and other heinous crimes  affecting human rights and individual liberty.  The constitutionality of  the Act has been concluded by the Constitution Bench of this Court in  Kartar Singh  Vs.  State of Punjab, (1994) 3 SCC 569.   The validity

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of Section 15 of the Act which would be relevant for the present  purpose has been held to be intra-virus the Constitution.  In  paragraphs 217, 218, 220, 222, 236 and 243 it is said:

"217. If the procedural law is oppressive and violates the  principle of just and fair trial offending Article 21 of the  Constitution and is discriminatory violating the equal  protection of laws offending Article 14 of the Constitution,  then Section 15 of TADA Act is to be struck down.   Therefore, it has become inevitably essential to examine  the classification of ’offenders’ and ’offences’ so as to  enable us in deciding whether Section 15 is violative of  Articles 14 and 21 of the Constitution.      

218.  The principle of legislative classification is an  accepted principle whereunder persons may be classified  into groups and such groups may differently be treated if  there is a reasonable basis for such difference or  distinction.  The rule of differentiation is that in enacting  laws differentiating between different persons or things in  different circumstances which govern one set of persons  or objects such laws may not necessarily be the same as  those governing another set of persons or objects so that  the question of unequal treatment does not really arise  between persons governed by different conditions and  different set of circumstances.  

220.  Coming to the distinction made in TADA Act  grouping the terrorists and disruptionists as a separate  class of offenders from ordinary criminals under the  normal laws and the classification of the offences under  TADA Act as aggravated form of crimes distinguishable  from the ordinary crimes have to be tested and  determined as to whether this distinction and  classification are reasonable and valid within the term of  Article 14 of the Constitution.  In order to consider the  question as to the reasonableness of the distinction and  classification, it is necessary to take into account the  objective for such distinction and classification which of  course need not be made with mathematical precision.   Suffice, if there is little or no difference between the  persons and the things which have been grouped  together and those left out of the groups, the classification  cannot be said to be a reasonable one.  In making the  classification, various factors have to be taken into  consideration and examined as to whether such a  distinction or classification justifies the different treatment  and whether they subserve the object sought to be  achieved.    

222.  As pointed out supra, the persons who are to be  tried for offences specified under the provisions of TADA  Act are a distinct class of persons and the procedure  prescribed for trying them for the aggravated and  incensed nature of offences are under different  classification distinguishable from the ordinary criminals  and procedure.  This distinction and classification of  grouping of the accused and the offences to be tried  under  TADA are to achieve the meaningful purpose and  object of the Act as reflected from the preamble as well as  the ’Statement of Objects and Reasons’ about which we  have elaborately dealt with in the preceding part of this  judgment.  

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236. Keeping the above proposition, we have to decide  whether the provisions of Section 15 of the 1987 Act  (TADA) contravene Article 14.  True, if the classification is  shown to be arbitrary and unreasonable and without any  substantial basis, the law would be contrary to the equal  protection of laws by Article 14.  

243.  The above decision, in our view, cannot be availed  of for striking down Section 15 of TADA Act because the  classification of ’offenders’ and ’offences’ to be tried by  the Designated Court under the TADA Act or by the  Special Courts under the Act of 1984, are not left to the  arbitrary and uncontrolled discretion of the Central  Government but the Act itself has made a delineated  classification of the offenders as terrorists and  disruptionists in the TADA Act and the terrorists under the  Special Courts Act, 1984 as well as the classification of  offences under both the Acts.       

       This Court also pointed out in paragraph 259 the procedural  safeguards to be followed by the police officer with regard to the  mode of recording the confession.  It is then held in paragraph 260  (SCC p.681) as under:-

"260.For the foregoing discussion, we hold that Section  15 is not liable to be struck down since that section does  not offend either Article 14 or Article 21 of the  Constitution."  

                  This Court, however, as a matter of abundant caution laid down  certain guidelines, so as to ensure that the confession obtained is not  tainted with any vice  and then said in paragraph 263  (SCC p.682) as  under:-

"263.However, we would like to lay down following  guidelines so as to ensure that the confession obtained in  the pre-indictment interrogation by a police officer not  lower in rank than a Superintendent of Police is not  tainted with any vice but is in strict conformity with the  well-recognised and accepted aesthetic principles and  fundamental fairness:  

(1) The confession should be recorded in a free  atmosphere in the same language in which the  person is examined and as narrated by him;

(2) The person from whom a confession has been  recorded under Section 15(1) of the Act, should be  produced before the Chief Metropolitan Magistrate  or the Chief Judicial Magistrate to whom the  confession is required to be sent under Rule 15(5)  along with the original statement of confession,  written or recorded on mechanical device without  unreasonable delay;

(3) The Chief Metropolitan Magistrate or the Chief  Judicial Magistrate should scrupulously record the  statement, if any, made by the accused so  produced and get his signature and in case of any  complaint of torture, the person should be directed  to be produced for medical examination before a  Medical Officer not lower in rank than of an

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Assistant Civil Surgeon;    (4) Notwithstanding anything contained in the Code  of Criminal Procedure, 1973, no police officer below  the rank of an Assistant Commissioner of Police in  the Metropolitan cities and elsewhere of a Deputy  Superintendent of Police or a police officer of  equivalent rank, should investigate any offence  punishable under this Act of 1987.

       This is necessary in view of the drastic  provisions of this Act. More so when the Prevention  of Corruption Act, 1988 under Section 17 and the  Immoral Traffic Prevention Act, 1956 under Section  13, authorise only a police officer of a specified rank  to investigate the offences under those specified  Acts.

(5)  The police officer if he is seeking the custody of  any person for pre-indictment or pre-trial  interrogation from the judicial custody, must file an  affidavit sworn by him explaining the reason not  only for such custody but also for the delay, if any,  in seeking the police custody;  

(6)    In case, the person, taken for interrogation, on  receipt of the statutory warning that he is not bound  to make a confession and that if he does so, the  said statement may be used against him as  evidence, asserts his right to silence, the police  officer must respect his right of assertion without  making any compulsion to give a statement of  disclosure;  

The Central Government may take note of these  guidelines and incorporate them by appropriate  amendments in the Act and the Rules.                         The 1985 Act received the assent of the President on 23rd May  and came into force on 24th May, 1985.  The preamble of this Act  reads that the special provisions of this Act were made "for the  prevention of, and for coping with, terrorist and disruptive activities  and for matters connected therewith or incidental thereto".                                                                                (emphasis suppl ied)                The Statement of Objects and Reasons of the Act reads as  follows:-    

"Prefatory Note \026 Statement of Objects and Reasons.-  Terrorists had been indulging in wanton killings, arson,  looting of properties and other heinous crimes mostly in  Punjab and Chandigarh.  Since the 10th May, 1985, the  terrorists have expanded their activities to other parts of  the country, i.e. Delhi, Haryana, Uttar Pradesh and  Rajasthan as a result of which several innocent lives have  been lost and many suffered serious injuries.  In planting  of explosive devices in trains, buses and public places,  the object to terrorise, to create fear and panic in the  minds of citizens and to disrupt communal peace and  harmony is clearly discernible.  This is a new and overt  phase of terrorism which requires to be taken serious

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note of and dealt with effectively and expeditiously.  The  alarming increase in disruptive activities is also a matter  of serious concern. "

                  As the Act of 1985 was due to expire on 23rd May 1987, the  President promulgated the Terrorist and Disruptive Activities  (Prevention) Ordinance, 1987 (2 of 1987) which came into force from  24th May 1987.  The Ordinance was repealed by the enactment of  1987 (No.28 of 1987) which received the assent of the President on  3rd September 1987.  However, the scheme of the special provisions  in the Act of 1985 and the Act of 1987 remains the same.  The  scheme of the Act being, for the prevention of, and for coping with,  terrorist and disruptive activities and for matters connected therewith  or incidental thereto.           

            The 1987 Act was further amended by an Amending Act 43  of 1993.  The Statement of Objects and Reasons to Amending Act  are as follows:-   

"The Terrorist and Disruptive Activities (Prevention) Act,  1985 was enacted on 23rd May, 1985 in the background  of escalating terrorist activities in many parts of the  country.  The Act came into force with effect from 24th  May, 1985 with the stipulation that it would remain valid  for a period of two years with effect from the date of its  commencement as it was hoped at that time that it would  be possible to control, the menace of terrorism in a period  of two years.  Unfortunately, terrorist violence has  continued unabated, necessitating the Government to  periodically extend the Act on the due dates in 1987,  1989 and 1991.  The life of the Act is now due to expire  on the 23rd May, 1993.  The views of the State  Governments were obtained while processing these  extensions and most of them had recommended  extension of the Act.

2.      Terrorism which was initially confined to the States of  Punjab, Jammu and Kashmir and North East has spread  its tentacles to the States of Uttar Pradesh, Madhya  Pradesh, Himachal Pradesh, Maharashtra, Haryana,  Delhi, Gujarat and West Bengal. Apart from this, the  sophisticated weapons, remote control devices, rocket  launchers, professional training and international  involvement have added a new and disturbing  dimension to the problem.   

3.      The menace of terrorism has also been a matter of  international concern. Recently, we have entered into an  agreement with the United Kingdom for mutual  assistance in the investigation and prosecution of  terrorist crime and the tracing, restraint and confiscation  of the proceeds and instruments of crime and terrorist  funds.  This agreement is particularly useful in dealing  with terrorism inspired from abroad.

4.      Keeping in view the above considerations, it is proposed  to amplify some of the existing provisions so as to also  concretize the agreement signed recently with the  United Kingdom for mutual assistance in investigation  and prosecution of terrorists crime and the tracing,  restraint and confiscation of the proceeds and  instruments of crime and terrorist funds and to extend  the Act for a further period of two years up to 23rd May,  1995.

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5.      The present Bill seeks to achieve the above mentioned  objects."

           Thus, this type of extra ordinary laws are made to contain the  extraordinary situation by providing harsh, drastic and stringent  provisions, prescribing special procedure, departing from the  procedure prescribed under the ordinary procedural law for the  reasons that the prevalent ordinary procedural law was found to be  inadequate and not sufficiently effective to deal with the offenders  indulging in terrorist and disruptive activities.   The preambles and  statements of objects and reasons as referred to above are  manifestly evident that such extra-ordinary Act was made to deal with  extra-ordinary situation for the prevention of, and for coping with,  terrorist and disruptive activities and for matters connected therewith  or incidental thereto.                        The term ’terrorism’ has not been defined under the Act.  This  Court in  Hitendra Vishnu Thakur    Vs.  State of Maharashtra  (1994) 4 SCC 602 held in paragraph 7 (SCC p. 618) as under:-

"7."Terrorism’ is one of the manifestations of increased  lawlessness and cult of violence.  Violence and crime  constitute a threat to an established order and are a revolt  against a civilised society.  ’Terrorism’ has not been  defined under TADA nor is it possible to give a precise  definition of ’terrorism’ or lay down what constitutes  ’terrorism’.  It may be possible to describe it as use of  violence when its most important result is not merely the  physical and mental damage of the victim but the  prolonged psychological effect it produces or has the  potential of producing on the society as a whole.  There  may be death, injury, or destruction of property or even  deprivation of individual liberty in the process but the  extent and reach of the intended terrorist activity travels  beyond the effect of an ordinary crime capable of being  punished under the ordinary penal law of the land and its  main objective is to overawe the Government or disturb  harmony of the society or "terrorise" people and the  society and not only those directly assaulted, with a view  to disturb even tempo, peace and tranquility of the society  and create a sense of fear and insecurity. A ’terrorist’  activity does not merely arise by causing disturbance of  law and order or of public order.  The fall out of the  intended activity must be such that it travels beyond the  capacity of the ordinary law enforcement agencies to  tackle it under the ordinary penal law. Experience has  shown us that ’terrorism’ is generally an attempt to  acquire or maintain power or control by intimidation and  causing fear and helplessness in the minds of the people  at large or any section thereof and is a totally abnormal  phenomenon.  What distinguishes ’terrorism’ from other  forms of violence, therefore, appears to be the deliberate  and systematic use of coercive intimidation. More often  than not, a hardened criminal today takes advantage of  the situation and by wearing the cloak of ’terrorism’, aims  to achieve for himself acceptability and respectability in  the society because unfortunately in the States affected  by militancy, a ’terrorist’ is projected as a hero by his  group and often even by the misguided youth.  It is  therefore, essential to treat such a criminal and deal with  him differently than an ordinary criminal capable of being  tried by the ordinary courts under the penal law of the  land.  Even though the crime committed by a ’terrorist’

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and an ordinary criminal would be overlapping to an  extent but then it is not the intention of the Legislature that  every criminal should be tried under TADA, where the fall  out of his activity does not extend beyond the normal  frontiers of the ordinary criminal activity.  Every ’terrorist’  may be a criminal but every criminal cannot be given the  label of a ’terrorist’ only to set in motion the more stringent  provisions of TADA.  The criminal activity in order to  invoke TADA must be committed with the requisite  intention as contemplated  by Section 3(1) of the Act by  use of such weapons as have been enumerated in  Section 3(1) and which cause or are likely to result in the  offences as mentioned in the said section."     

                   As already noticed, the Act provides harsh and stringent  provisions aimed at to achieve the statement of objects and reasons  for the prevention of, and for coping with, terrorist and disruptive  activities and for matters connected therewith or incidental thereto.                                    The more stringent the Law, the less is the discretion of the  Court.   Stringent laws are made for the purpose to achieve its  objectives.  This being the intendment of the legislature the duty of  the court is to see that the intention of the legislature is not frustrated.  If there is any doubt or ambiguity in the statutes, the rule of purposive  construction should be taken recourse to, to achieve the objectives.   (See Swedish Match AB & Anr.    vs.   Securities & Exchange  Board, India & Anr. (2004) 7 Scale 158 para 84 at p. 176)                         Before we proceed further, we may at this stage, notice a few  decisions of this Court on the subject.  In the case of Bilal Ahmed  Kaloo  Vs.  State of A.P. (1997) 7 SCC 431 the two-Judge Bench of  this Court held in paragraph 5 ( SCC p.434 ) as under:-

"5. While dealing with the offences of which the appellant  was convicted there is no question of looking into the  confessional statement attributed to him, much less  relying on it since he was acquitted of all offences under  TADA.  Any confession made to a police officer is  inadmissible in evidence as for these offences and hence  it is fairly conceded that the said ban would not wane off  in respect of offences under the Penal Code merely  because the trial was held by the Designated Court for  offences under TADA as well. Hence the case against  him would stand or fall depending on the other evidence."             

This decision was rendered on 6th August, 1997.  On the same day  another decision by the same Bench was rendered in the case of  Rambhai Nathabhai Gadhvi   Vs.  State of Gujarat, (1997) 7 SCC  744 where it was pointed out in paragraph 18 (SCC p.751) as under:

"18.  It is obvious that power of the Designated Court to  charge the accused with any offence other than TADA  offences can be exercised only in a trial conducted for  any offence under TADA.  When trial for offence under  TADA could not have been held by the Designated Court  for want of valid sanction envisaged in Section 20-A(2)  the consequence is that no valid trial could have been  held by that court into any offence under the Arms Act  also.  It is clear that a Designated Court has no  independent power to try any other offence.  Therefore,  no conviction under Section 25 of the Arms Act is  possible on the materials collected by the Designated  Court in the present case. "   

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It will be noticed that in both the judgments provisions of Section 12  of the Act have not been noticed.   The decision rendered in Bilal  Ahmed’s case was followed in Gurprit Singh Vs. State of Punjab  (2002) 10 SCC 201.     

           The decision rendered in Bilal Ahmed’s case  was noticed by  a three-Judge Bench of this Court in State  Vs.  Nalini (1999) 5 SCC  253.    In Nalini’s case  the Bench reconsidered the decision in Bilal  Ahmed’s case and overruled the decision in Bilal Ahmed’s case.    However, the decisions in Rambhai’s case and Gurprit Singh’s  case have not been noticed in Nalini’s case.  In view of the decision  in Nalini’s case the decision rendered by a two-Judge Bench in  Rambahi’s and Gurprit Singh’s case  are per incuriam.   

          The primary question referred to this Bench for determination  is, as to whether the confessional statement duly recorded under  Section 15 of TADA would continue to remain admissible as for the  offences under any other law which were tried along with TADA  offences under Section 12 of the Act, notwithstanding the fact that the  accused was acquitted of offences under TADA in the said trial.                The questions posed before us for the termination are no  more res integra.   In our view, the same have been set at rest by  the three-Judge Bench decision rendered in Nalini (supra).  The  rigours of Sections 12 and 15 were considered in Nalini’s case and  rendered a finding in paragraphs 80, 81 and 82 (SCC p.304) as  under:- "80.Section 12 of TADA enables the  Designated Court to jointly try, at the same  trial, any offence under TADA together with  any other offence "with which the accused  may be charged" as per the Code of Criminal  Procedure.  Sub-section (2) thereof empowers  the Designated Court to convict the accused,  in such a trial, of any offence "under any other  law" if it is found by such Designated Court in  such trial that the accused is found guilty of  such offence.  If the accused is acquitted of  the offences under TADA in such a trial, but  convicted of the offence under any other law,  it does not mean that there was only a trial for  such other offence under any other law.

81.Section 15 of TADA enables the  confessional statement of an accused made  to a police officer specified therein to become  admissible "in the trial of such a person".  It  means, if there was a trial of any offence  under TADA together with any other offence  under any other law, the admissibility of the  confessional statement would continue to hold  good even if the accused is acquitted under  TADA offences."                                     (emphasis supplied)    82. The aforesaid implications of Section 12  vis-‘-vis Section 15 of TADA have not been  adverted to in Bilal Ahmed case.  Hence the  observations therein (at SCC p.434, para 5)  that  

"while dealing with the offences of  which the appellant was convicted  there is no question of looking into

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the confessional statement  attributed to him, much less  relying  on it since he was  acquitted of all offences under  TADA"

cannot be followed by us.  The correct  position is that the confessional statement  duly recorded under Section 15 of TADA  would continue to remain admissible as for the  other offences under any other law which too  were tried along with TADA offences, no  matter that the accused was acquitted of  offences under TADA in that trial."                                      (emphasis supplied)            We are in respectful agreement with the findings recorded by a three- Judge Bench in Nalini’s case.                            S.S.M.Quadri,J in his concurring judgment held in  paragraphs 674 and 675 at SCC p.571 as under:-

"674.Having regard to the provisions of Section 12 of the  TADA Act, the confession recorded under Section 15 will  be admissible in the trial of a person, co-accused, abettor  or conspirator for an offence under the TADA Act or the  rules made thereunder and such other offence with which  such a person may be charged at the same trial under the  provisions of the Criminal Procedure Code provided the  offence under the TADA Act or the rules made thereunder  is connected with such other offence.

675.  An analysis of sub-section (1) Section 15 shows that  it has two limbs. The first limb bars application of  provisions of the Code of Criminal Procedure and the  Indian Evidence Act to a confession made by a person  before a police officer not lower in rank than a  Superintendent of Police and recorded by him in any of  the modes noted in the section.  The second limb makes  such a confession admissible, dehors the provisions of  the Evidence Act in the trial of such person or co- accused, abettor or conspirator for an offence under the  TADA Act or rules made thereunder provided the co- accused, abettor or conspirator is charged and tried in the  same case together with the accused.  The import of  Section 15 (1) is that insofar as the provisions of CrPC  and the Evidence Act come in conflict with either  recording of a confession of a person by a police officer of  the rank mentioned therein, in any of the modes specified  in the section, or its admissibility at the trial, they will have  to yield to the provision of Section 15(1) of the TADA Act  as it is given overriding effect."      

It was also pointed out in paragraph 704 at SCC p.580 that a  confession of an accused under Section 15 of the TADA Act is  substantive evidence against the co-accused, abettor or conspirator  jointly tried with the accused.              Before we proceed to consider the rigours of Sections 15 and  12 we may at this stage point out that it is a trite law that the  jurisdiction of the Court to interpret a statute can be invoked only in  case of ambiguity.  The Court cannot enlarge the scope of legislation  or intention when the language of the statute is plain and  unambiguous. Narrow and pedantic construction may not always be  given effect to.  Courts should avoid a construction which would

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reduce the legislation to futility.  It is also well settled that every  statute is to be interpreted without any violence to its language.  It is  also trite that when an expression is capable of more than one  meaning, the court would attempt to resolve the ambiguity in a  manner consistent with the purpose of the provision, having regard to  the consequences of the alternative constructions.  In this connection,  we may notice few decisions of this Court.            In  Nasiruddin    Vs.    Sita Ram Agarwal, (2003) 2 SCC 577,  the three judge-Bench of this Court pointed out in paragraphs 35 and  37 ( SCC p. 588) and (SCC p. 589) as under:-

"35.In a case where the statutory provision is plain and  unambiguous, the court shall not interpret the same in a  different manner, only because of harsh consequences  arising therefrom."

"37. The Court’s jurisdiction to interpret a statue can be  invoked when the same is ambiguous. It is well known  that in a given case the court can iron out the fabric but it  cannot change the texture of the fabric.  It cannot enlarge  the scope of legislation or intention when the language of  the provision is plain and unambiguous.  It cannot add or  subtract words to a statue or read something into it which  is not there.  It cannot rewrite or recast legislation.  It is  also necessary to determine that there exists a  presumption that the legislature has not used any  superfluous words.  It is well settled that the real intention  of the legislation must be gathered from the language  used.  It may be true that use of the expression "shall or  may" is not decisive for arriving at a finding as to whether  the statue is directory or mandatory.  But the intention of  the legislature must be found out from the scheme of the  Act.  It is also equally well settled that when negative  words are used the courts will presume that the intention  of the legislature was that the provisions are mandatory in  character."     

(See also Mohan Kumar Singhania   vs.  Union of  India, 1992 Supp.(1) SCC 594 (SCC p.624) para 67)  

                   In the case of  Balram Kumawat  vs.  Union of India, 2003 (7)  SCC 628, the three-Judge Bench of this Court pointed out in  paragraph 23 at SCC p. 635 as under:-

"Furthermore, even in relation to a penal statute any  narrow and pedantic, literal and lexical construction may  not always be given effect to.  The law would have to be  interpreted having regard to the subject-matter of the  offence and the object of the law it seeks to achieve.  The  purpose of the law is not to allow the offender to sneak  out of the meshes of law.  Criminal jurisprudence does  not say so."  

and further in paragraph 30 at SCC p.638 it was pointed out as  under:- "30.  Yet again in Supdt. And Remembrancer of Legal  Affiars to Govt. of W.B.  v.  Abani Maity (1979) 4 SCC 85  the law is stated in the following terms: (SCC p.90, para  18)          "19{18}.  Exposition ex visceribus actus  is a long-recognised rule of construction.   Words in a statue often take their meaning  from the context of the statute as a whole.   They are therefore, not to be construed in

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isolation.  For instance, the use of the word  ’may’ would normally indicate that the  provision was not mandatory.  But in the  context of a particular statute, this word may  connote a legislative imperative, particularly  when its construction in a permissive sense  would relegate it to the unenviable position, as  it were, ’of an in effectual angel beating its  wings in a luminous void in vain’.  ’If the  choice is between two interpretations’, said  Viscount Simon, L.C. In Nokes   v.  Doncaster  Amalgamated Collieries, Ltd. (AC at p.1022)

’the narrower of which would fail to achieve the manifest  purpose of the legislation, we should avoid a construction  which would reduce the legislation to futility and should  rather accept the bolder construction based on the view  that Parliament would legislate only for the purpose of  bringing about an effective result’".

             In the backdrop of referred decisions and keeping in view the  legislative intendment and scheme of the Act, we may now examine  rigours of Sections 15 and 12 of the Act.                 Section 15 deals with certain confessions made to police  officers to be taken into consideration.  It reads:-                                                               (1) Notwithstanding anything in the Code or in the Indian  Evidence Act, 1872 (1 of 1872), but subject to the  provisions of this section, a confession made by a person  before a police officer not lower in rank than a  Superintendent of Police and recorded by such police  officer either in writing or on any mechanical device like  cassettes, tapes or sound tracks from out of which  sounds or images can be reproduced, shall be admissible  in the trial of such person ( or co-accused, abettor or  conspirator ) for an offence under this Act or rules made  thereunder:          Provided that co-accused, abettor or conspirator is  charged and tried in the same case together with the  accused.

(2) The police officer shall, before recording any  confession under sub-section (1), explain to the person  making it that he is not bound to make a confession and  that, if he does so, it may be used as evidence against  him and such police officer shall not record any such  confession unless upon questioning the person making it,  he has reason to believe that it is being made voluntarily.     

        Rule 15 deals with the recording of confession made to police  officers.  It reads:- (1) A confession made by a person before a police officer  and recorded by such police officer under Section 15 of  the Act shall invariably be recorded in the language in  which such confession is made and if that is not  practicable, in the language used by such police officer  for official purposes or in the language of the Designated  Court and it shall form part of the record.  

(2) the confession so recorded shall be shown, read or  played back to the person concerned and if he does not  understand the language in which it is recorded, it shall  be interpreted to him in a language which he understands  and he shall be at liberty to explain or add to his

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confession.   

(3) The confession shall, if it is in writing, be-

(a) signed by the person who makes the confession; and

(b) by the police officer who shall also certify under his  own hand that such confession was taken in his presence  and recorded by him and that the record contains a full  and true account of the confession made by the person  and such police officer shall make a memorandum at the  end of the confession to the following effect:-

      "I have explained to (name) that he is not bound to  make a confession and that, if he does so, any confession  he may make may be used as evidence against him and I  believe that this confession was voluntarily made.  It was  taken in my presence and hearing and recorded by me  and was read over to the person making it and admitted  by him to be correct, and it contains a full and true  account of the statement made by him.                                           Sd/- Police Officer.".

(4) Where the confession is recorded on any mechanical  device, the memorandum referred to in sub-rule (3) in so  far as it is applicable and a declaration made by the  person making the confession that the said confession  recorded on the mechanical device has been correctly  recorded in his presence shall also be recorded in the  mechanical device at the end of the confession.

(5) Every confession recorded under the said Section 15  shall be sent forthwith to the Chief Metropolitan  Magistrate or the Chief Judicial Magistrate having  jurisdiction over the area in which such confession has  been recorded and such Magistrate shall forward the  recorded confession so received to the Designated Court  which may take cognizance of the offence.       

                                   Section 12 deals with the power of Designated Courts  with respect to other offences.  It reads:-      

(1) When trying any offence, a Designated Court may  also try any other offence with which the accused may,  under the Code, be charged at the same trial if the  offence is connected with such other offence.                                                           (emphasis supplied)     

(2) If, in the course of any trial under this Act of any  offence, it is found that the accused person has  committed any other offence under this Act or any rule  made thereunder or under any other law, the Designated  Court may convict such person of such other offence and  pass any sentence authorised by this Act or such rule or,  as the case may be, such other laws, for the punishment  thereof.  

        On a cursory reading of both the Sections, it appears to us that  the language employed therein is plain and unambiguous.  As  pointed out by this Court in Nalini’s case (supra) Section 15 consists  of two limbs.  The first limb bars application of provisions of the Code  of Criminal Procedure and the Indian Evidence Act to a confession  made by a person before a police officer not lower in rank than a

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Superintendent of Police and recorded by him in any of the modes  noted in the Section.  The second limb makes such a confession  admissible, dehors the provisions of the Evidence Act in the trial of  such person or co-accused, abettor or conspirator for an offence  under the TADA Act or rules made thereunder provided the co- accused, abettor or conspirator is charged and tried in the same case  together with the accused as provided in Section 12 of the Act.   It  was also pointed out that in the event Cr.P.C. and the Evidence Act  come in conflict with either recording of a confession of a person by a  police officer of the rank mentioned therein, in any of the modes  specified in the Section, or its admissibility at the trial, Section 15 of  the TADA Act will have a overriding effect over the Cr.P.C. and the  Evidence Act.                 Counsel for the appellants strenuously urged that the words  "for an offence under this Act" employed in Section 15 suggest that  the confession recorded under Section 15 in the manner provided,  excludes the confession admissible in evidence if no offence under  TADA is made out.  In other words, the confession recorded under  Section 15 in the manner provided excludes the confession  admissible in evidence insofar for the other offences are concerned.   Counsel also urged that the words, "but subject to provisions of this  Section" also suggest that the said provisions are confined only to the  TADA  offences.  We are unable to accept this contention.  Section  15  of  the  TADA Act and Rules framed thereunder is a self- contained code in itself, providing procedural safeguards and the  words, "but subject to the provisions of this Section" employed therein  would mean the procedural safeguards prescribed under the Section.    As already pointed out Section 15 has overriding effect over the  Evidence Act   and Criminal Procedure Code, the only procedure to  be followed in recording confession  is the procedure prescribed  under the provisions of Section 15 and Rules framed thereunder.   This would be the only intention of the Legislation while introducing  the words, "but subject to provisions of this section" in Section 15(1).               So far the words "for an offence under this Act" is concerned,  the word ’Act’ referred to in Section 15(1) is relatable to Section 12 of  the Act.  Section 15 therefore has to be read together with Section  12.             By now it is well settled Principle of Law that no part of a  statute and no word of a statute can be construed in isolation.   Statutes have to be construed so that every word has a place and  everything is in its place.  It is also trite that the statute or rules made  thereunder should be read as a whole and one provision should be  construed with reference to the other provision to make the provision  consistent with the object sought to be achieved.

          In Reserve Bank of India v. Peerless General Finance and  Investment Co. Ltd. (1987) 1 SCC 424, this Court said: (SCC p.  450, para 33)

"33. Interpretation must depend on the text and the  context.  They are the basis of interpretation.  One may  well say if the text is the texture, context is what gives the  colour.  Neither can be ignored.  Both are important.  That  interpretation is best which makes the textual  interpretation match the contextual.  A statute is best  interpreted when we know why it was enacted.  With this  knowledge, the statute must be read, first as a whole and  then section by section, clause by clause, phrase by  phrase and word by word.  If a statute is looked at, in the  context of its enactment, with the glasses of the statute- maker, provided by such context, its scheme, the  sections, clauses, phrases and words may take colour  and appear different than when the statute is looked at  without the glasses provided by the context.  With these  glasses we must look at the Act as a whole and discover

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what each section, each clause, each phrase and each  word is meant and designed to say as to fit into the  scheme of the entire Act.  No part of a statute and no  word of a statute can be construed in isolation.  Statutes  have to be construed so that every word has a place and  everything is in its place."                                                 (emphasis supplied)

       In Anwar Hasan Khan v. Mohd. Shafi and Others (2001) 8  SCC 540, this Court held:  "8\005..It is a cardinal principle of construction of a statute  that effort should be made in construing its provisions by  avoiding a conflict and adopting a harmonious  construction.  The statute or rules made thereunder  should be read as a whole and one provision should be  construed with reference to the other provision to make  the provision consistent with the object sought to be  achieved\005.."          

        Section 12 which empowers the Designated Court to try any  other offence with which the accused may be charged under the  Code at the same trial provided the offence is connected with such  other offence.  This section has been brought to the statute book in  consonance with the preamble of the Act, which says, "for the  prevention of, and for coping with, terrorist and disruptive activities  and for matters connected therewith or incidental thereto."     Therefore, Section 12 is introduced to take care of the matters  connected with or incidental to terrorist activities.  

        A conjoint reading of two sections as a whole, it leaves no  manner of doubt that one provision is to be construed with reference  to the other provision  and vice versa so as to make the provision  consistent with the object sought to be achieved.  The scheme and  object of the Act being the admissibility of the confession recorded  under Section 15 of the Act in the trial of a person or co-accused,  abettor or conspirator is charged and tried in the same case together  with the accused, as provided under Section 12 of the Act.       

          Counsel contends that Section 12 is only enabling provision  empowering the Designated Court to try and convict for the offences  committed under any other law along with the offences under the  TADA so as to avoid multiplicity of the Trial and does not empower  the Designated Court to try and convict for other offences, even if the  offences under the TADA are not made out. Does it mean,"Thou shalt  have teeth, but not bite".  We think not.  When the Courts have power  to try, it is implicit in it that they have the power to convict also.  In the  present case sub-section 2 of Section 12 expressly empowered the  Designated Court to convict the accused person of such other  offence and pass any sentence authorised by the Act - if the offence  is connected with such other offence and - if it is found that the  accused person has committed any other offence.     

        Section 12(1) as quoted above authorises the Designated Court  to try offences under the TADA along with another offence with which  the accused may be charged under Cr.P.C. at the same trial.  The  only embargo imposed on the exercise of the power is that the  offence under the TADA is connected with any other offence being  tried together.  Further, Section 12(2) provides that the Designated  Court may convict the accused person of offence under that Act or  any rule made thereunder or under any other law and pass any  sentence authorised under that Act or the rules or under any other  law, as the case may be for the punishment thereof, if in the course of  any trial under the TADA  the accused persons are found to have  committed any offence either under that Act or any rule or under any

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other law.    

          The legislative intendment underlying Section 12(1) and (2) is  clearly discernable, to empower the Designated Court to try and  convict the accused for offences committed under any other law  along with offences committed under the Act, if  the offence is  connected with such other offence.  The language, "if the offence is  connected with such other offence" employed in Section 12(1) of the  Act has great significance.   The necessary corollary is that once the  other offence is connected with the offence under the TADA and if the  accused is charged under the Code and tried together in the same  trial, the Designated Court is empowered to convict the accused for  the offence under any other law, notwithstanding  the fact that no  offence under TADA is made out.  This could be the only intendment  of the legislature. To hold otherwise, would amount to rewrite or  recast legislation and read something into it which is not there.        

       Counsel also urged that the rigours of Section 12 is  discriminatory and attract the wrath of Articles 14 and 21 of the  Constitution as it empowers the Designated Court to try and convict  the accused for the offences committed under any other law along  with the offences committed under the TADA thereby depriving the  rights available to the accused under the ordinary law.  In our opinion,  this contention is misconceived.   It is trite law that Article 14 prohibits  discrimination, but allows reasonable classification based on  intelligible differentia, having nexus with the object sought to be  achieved.  The object sought to be achieved by introducing Section  12 is to take care of the offence connected with or incidental to  terrorist activities.  The other offence being connected and  inextricably inter-twined with the Terrorist Act.   As already pointed  out in Kartar Singh (supra) the Trial under TADA is a departure from  the ordinary law.  The persons who are tried for offences specified  under the provisions of TADA  are a distinct class of persons and the  procedure prescribed for trying them for the aggravated and incensed  nature of offences are under different classification distinguishable  from the ordinary criminals and procedure.  This distinction and  classification of grouping of the accused and the offences to be tried  under TADA are to achieve the meaningful purpose and object of the  Act as reflected from the preamble as well as the statement of objects  and reasons.                              The Act, as noticed above, is a special provision for special  purpose.  It is a departure from the ordinary procedural law.  Plea of  discriminatory treatment for want of availability of ordinary procedural  law would not be available.                For the reasons aforestated, we are of the view that the  decision in Nalini’s case has laid down correct law and we hold that  the confessional statement duly recorded under Section 15 of TADA  and Rules framed thereunder would continue to remain admissible for  the offences under any other law which were tried along with TADA  offences under Section 12 of the Act, notwithstanding that the  accused was acquitted of offences under TADA in the same trial.                                   The other leg of the submission is rigours of Section 18 of the  Act.  Section 18 deals with the power to transfer cases to regular  courts.  It reads:-

"Where, after taking cognizance of any offence, a  Designated Court is of opinion that the offence is not  triable by it, it shall, notwithstanding that it has no  jurisdiction to try such offence, transfer the case for the  trial of such offence to any court having jurisdiction under  the Code and the court to which the case is transferred  may proceed with the trial of the offence as if it had taken  cognizance of the offence."                                                                        (emphasis supplied)

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          It is contended that the words,"after taking cognizance"  employed in Section 18 of the Act would include any stage of trial  including the stage when the judgment is to be delivered.  This  submission is also misconceived.  If it ought to have been the  intention of the legislature they could have said so.  The legislature  deliberately uses the words "after taking cognizance of any offence"  to mean that Section 18 would be attracted only at the stage where  the Designated Court takes cognizance of offence i.e., after the  investigation is complete and charge-sheet is filed.  The provisions of  Section 209 Cr.P.C. to which the counsel for the appellants sought to  rely are not in pari materia with Section 18.  In Section 209 Cr.P.C.  the words "after taking cognizance" are absent conspicuously.    Section 18 is a filtered provision.  The Section is attracted only at a  stage the Designated Court takes cognizance of offence. It is at the  stage of taking cognizance, the Designated Court is expected to scan  the documents and evidence collected therewith, if the Designated  Court is of opinion that the offence is not triable by it, it shall, then  notwithstanding that it has no jurisdiction to try such offence, transfer  the case for the trial of such offence to any court having jurisdiction  under the Code and the Court to which the case is transferred may  proceed with the trial of the offence as if it had taken cognizance of  the offence.    In our view, there is no ambiguity in the language used  in Section 18.    If the submissions of the counsel for the appellant are  accepted, it would amount to reading something into the statute  which is not there.                         Having said so, we also notice the note of caution of this  Court in Kartar Singh (supra) in paragraph 352 ( SCC p.707) as  under:-    

"352.  It is true that on many occasions, we have come  across cases wherein the prosecution unjustifiably  invokes the provisions of the TADA Act with an oblique  motive of depriving the accused persons from getting bail  and in some occasions when the courts are inclined to  grant bail in cases registered under ordinary criminal law,  the investigating officers in order to circumvent the  authority of the courts invoke the provisions of the TADA  Act.  This kind of invocation of the provisions of TADA in  cases, the facts of which do not warrant, is nothing but  sheer misuse and abuse of the Act by the police.  Unless,  the public prosecutors rise to the occasion and discharge  their onerous responsibilities keeping in mind that they  are prosecutors on behalf of the public but not the police  and unless the Presiding Officers of the Designated  Courts discharge their judicial functions keeping in view  the fundamental rights particularly of the personal right  and liberty of every citizen as enshrined in the  Constitution to which they have been assigned the role of  sentinel on the qui vive, it cannot be said that the  provisions of TADA Act are enforced effectively  inconsonance with the legislative intendment."                                                    (emphasis supplied)

        In our view the above observation is eloquently sufficient to  caution police officials as well as the Presiding Officers of the  Designated Courts from misusing the Act and to enforce the Act  effectively and inconsonance with the legislative intendment which  would mean after the application of mind.  We reiterate the same.               For the reasons aforestated, the reference is answered in the  above terms.  The appeals shall now be listed before a regular Bench  for hearing.