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PETITIONER: STATE THROUGH CBI, DELHI

       Vs.

RESPONDENT: GIAN SINGH

DATE OF JUDGMENT:       14/09/1999

BENCH: K.T.Thomas, S.P.Kurdukar, G.B.Pattanaik.

JUDGMENT:

THOMAS,J.

     The  military action Operation Blue Star carried out in  the  Golden Temple complex at Amritsar had a  series  of aftermaths involving many horrendous incidents.  In one such incident  a  leader of Sikh community, Sant  Harchand  Singh Longowal,  was  shot dead from close range distance  on  the evening  of  20.8.1985.  Appellant Gian Singh and  6  others were   arraigned  before  a   Designated  Court  under   the Terrorists  and Disruptive Activities (Prevention) Act, 1985 (for  short TADA 1985) for various offences connected with the  said murder.  The Special Judge of the Designated Court convicted  the  appellant of a number of offences  including Section 3(2)(i) of the TADA 1985.  He was sentenced to death for  the  said offence as the Special Judge noticed that  no other  alternative sentence was prescribed for that  offence under TADA 1985.  However, lesser sentences were awarded for the  remaining  offences  of  which too  the  appellant  was convicted  including  Section 302 read with Section 34  IPC. This  appeal was filed by the appellant as of right since it is  so  provided  under Section 16 of the  TADA  1985.   The remaining  6  accused in the array of the  indicted  persons were found not guilty of any offence and hence they were all acquitted.   Two  others were also shown as participants  in the  same offences, one Harinder Singh alias Billa (he later died  on  account  of the bullet wounds sustained)  and  one Jurnail  Singh  (he  is  now a proclaimed  offender  as  his whereabouts are still untraced).

     As  appellant has been in jail for a period  exceeding 14  years in connection with this case, his learned  counsel seems  to  be disinterested in canvassing for an  acquittal. But he focussed all his efforts to have the sentence brought down  to  imprisonment for life for the main offence  as  he feels  that  the  maximum  term   of  fourteen  years  which appellant  has  already spent in jail would help him to  get the  benefit of a release order from jail authorities.   But the  question  of  sentence need be considered only  if  his conviction  is  liable to be upheld because we  are  dealing with  the  first  appeal which appellant, as of  right,  has preferred against his conviction passed by the trial court.

          The  facts which led to the present case can be stated in  brief:   The  State  of Punjab  was  passing  through  a tortuous  period during the first half of Nineteen Eighties. The  State  as  a whole was then a terrorist  infested  area

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where  killings of human beings with illegal firearms were a daily   occurrence.    Sant     Harcharan   Singh   Longowal (hereinafter referred to as Sant Longowal) was the President of  Siromani  Akali  Dal  which  was  a  widely  represented association  of  the  Sikh community.   Another  association consisting   of  extremists  of   the  Sikh  community   had recognised  one  Jurnail Singh Bhindaranwale as the  leader. He  was  supported by another extremist faction  called  All India Sikh Students Federation (AISSF).

     Golden  Temple  at  Amritsar has ever  been  the  most revered  place  of  worship for Sikhs all  over  the  world. Within  the  Golden Temple complex is situate a multi-  tier edifice called Akal Takht which is regarded as the seat of Almighty.   All important decisions concerning the religious affairs  of  the community are being adopted at Akal  Takht. It  has always been eliciting obeisance from the devotees of the  great temple.  But during the first half of that decade a  lot  of extremists under the leadership of Jurnail  Singh Bhindaranwale  had  perched  inside Akal  Takht  and  army action  was  resorted  to  by   the  Government  of   India, presumably,  to flush out all the illegal occupants therein. The army action so resorted to is now recorded in history as Operation  Blue  Star  which caused the  magnificent  Akal Takht  to  crumble  down  and a large  number  of  occupants therein were crushed to death.  It happened in June 1984.

     Sant  Longowal  was arrested soon after the  aforesaid army  action,  and was interned in prison where he  remained till 12.3.1985.

     In  the  meanwhile  efforts  were on  to  mollify  the wounded  feelings of Sikh community.  An accord was  arrived at  between  the then Prime Minister Rajiv Gandhi  and  Sant Longowal  on 24.7.1985 and a Pact was signed on its basis by the aforesaid two leaders.

     But  the followers of Bhindaranwale including  members of  AISSF opposed the said Pact as they considered the truce a  virtual surrender of Sikh pride to the destroyers of Akal Takht.  They publicly abused the leaders who signed the Pact without  securing  any relief for the Sikh youths lodged  in jails and without restoring the Sikh soldiers to their ranks who had impulsively deserted Defence Services on hearing the news of the destruction of Akal Takht.

     The  above  was the backdrop of the  murderous  attack launched  on  Sant Longowal.  According to  the  prosecution case  a  criminal  conspiracy  hatched by  some  persons  to eliminate  deceased  Sant Longowal and his henchmen for  the acts  of  betrayal  of  Sikh   Panth.   They  considered  it imperative  to  teach  all  such   betrayers  a  lesson  and terrorise  all those who declined to obey the edicts  issued by   the   organisations  spearheaded   by   Jurnail   Singh Bhindaranwale.

     On  30.7.1985 an attempt was made on Sant Longowal and his  comrades  when they visited Golden Temple at  Amritsar. But  the  attempt  did not succeed due  to  some  unforeseen developments.   Though  the security cover of Sant  Longowal was  beefed  up consequent on the aforesaid attempt  on  his life,  the determined conspirators were not deterred by  any such security measures.

     The  conspirators came to know that Sant Longowal  was

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scheduled  to  address  a meeting on  20.8.1985  at  Sherpur Gurudwara.   Appellant and his co-assailants were  entrusted with  the  risky  task  of shooting Sant  Longowal  and  his colleagues.   Revolvers and cartridges were supplied to  the assailants for achieving the purpose.  A motorcycle was also lent  to them for swift movement to reach the target at  the appropriate opportunity.

     The  meeting at Sherpur Gurudwara started at 3.30 P.M. But  Sant  Longowal addressed the audience around 5.30  P.M. As  he  was closing the speech, appellant and Jurnail  Singh opened  firing  towards  the stage.  Some  people  from  the audience  made a bold bid to thwart the onslaught.  But  the assailants  continued to shower bullets at the personages on the  dais.   A  number of persons  including  Sant  Longowal sustained serious firearm injuries.

     The  bodyguard of Sant Longowal, besides other  police personnel  present,  tried to catch the assailants.   Though one  of  them  (Jurnail Singh) succeeded  in  escaping,  the appellant  and Harvinder Singh @ Billa were over-powered and were caught with the illegal firearms in their possession.

     Sant  Longowal  was  taken to the  Civil  Hospital  at Sangrur   and  other  injured   were  removed  to  different hospitals.   Sant Longowal succumbed to his injuries at 8.40 P.M.  on the same night.

     The  Designated  Court  acquitted  all  the  remaining accused  who  were  tried along with the appellant,  on  the premise  that  prosecution did not succeed in  proving  that they  were  members of the criminal  conspiracy.   Regarding appellant  the  Designated  Court found that he  shared  the common  intention  to murder Sant Longowal and his  comrades and  they  fired the revolvers in pursuance thereto.   Hence the conviction and sentence.

     There  is no dispute that Sant Longowal and the  other deceased  were shot at while they were attending the meeting at  Sherpur Gurudwara on the evening of 20.8.1985.  There is also  no  dispute that appellant and Harvinder  Singh  alias Villa  were over-powered by people at the same site and they were  arrested  by  the  police.  So  the  limited  question regarding  facts  is  whether  appellant   was  one  of  the assailants  and  whether  he  did it  in  concert  with  his co-assailants.

     The  occurrence which happened at 5.30 P.M.  in  which Sant  Longowal was shot down was witnessed by a large number of  persons.  A few among them were examined as  prosecution witness.   PW-29  Surinder  Singh  was   a  member  of   the legislative  assembly during the relevant time.  He was  the nephew of Sant Longowal.  He said that he too was present in the  meeting  and  narrated  the  incident,  identified  the appellant as one of the assailants using a revolver to shoot the  persons  on  the stage.  PW-30  Rajinder  Singh,  PW-34 Karamjit  Singh, PW-35 Santosh Singh, PW-40 Joginder  Singh, PW-41  Sher  Singh  and  PW-102 Amir Singh  were  the  other eye-witnesses examined by the prosecution.

     Among  the  above  eye-witnesses PW-34  had  sustained injuries  while assailants fired revolvers.  PW-40  Joginder Singh  was  the  General  Secretary of  Akali  Dal  District Committee.   Both of them narrated that after Sant  Longowal completed  his speech, purses were presented to him by  some

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people in the audience as contributions towards the movement which  Sant Longowal spearheaded.  Thereafter Jaikara  was said  (it  is the traditional slogan of Sikh people) and  it was  then the appellant opened firing from a distance of 5-6 karms  away  from the stage.  They and PW-29 Surinder  Singh have  said that Sant Longowal was dragged backwards to  save him  from further onslaughts, and one person tried to  catch the  appellant  but  he too was shot at  by  the  appellant; thereafter appellant took to his heels and he was chased and intercepted.   When the police came, they took charge of the appellant  and they also took into custody the revolver from the  hands  of  the  appellant.  PW-41 Sher  Singh  was  the bodyguard  of  Sant Longowal.  It was PW-102 Amir Singh  who succeeded in catching the appellant after the chase.

     The  Designated  Court has considered the evidence  of the  aforesaid witnesses in detail.  Nothing has been  shown to  us  for doubting the correctness or the truth  of  their version.   Therefore  we  are  also in  agreement  with  the finding  of the Designated Court that the appellant was  one of the assailants, in concert with the other assailants, who used firearms aiming at Sant Longowal and his associates who were present at the meeting.

     We  have now to consider whether the aforesaid acts of the appellant would fall within the ambit of terrorist act in  Section 3 of the TADA Act 1985.  We extract Section 3(1) here:

     Whoever  with intent to overawe the Government as  by law  established  or to strike terror in the people  or  any section  of  the  people or to alienate any section  of  the people  or to adversely affect the harmony amongst different sections of the people does any act or thing by using bombs, dynamite  or  other  explosive   substances  or  inflammable substances  or fire-arms or other lethal weapons or  poisons or  noxious gases or other chemicals or any other substances (whether  biological or otherwise) of a hazardous nature  in such  a manner as to cause, or as is likely to cause,  death of,  or injuries to, any person or persons or damage to,  or destruction  of,  property or disruption of any supplies  or services  essential to the life of the community, commits  a terrorist act.

     The  above said sub-section is identically worded with the corresponding sub-section in the TADA Act of 1987 except the  added  limb in the subsequent Act having the  following words:   or  detains  any person and threatens to  kill  or injure  such person in order to compel the Government or any other person to do or abstains from doing any act.

     Sub-section  (2)  of Section 3 of TADA Act 1985  deals with punishment.  It reads thus:

     Whoever commits a terrorist act shall,-

     (i)  if  such  act has resulted in the  death  of  any person,  be punishable with death;  (ii) in any other  case, be  punishable with imprisonment for a term which shall  not be less than five years but which may extend to term of life and shall also be liable to fine.

     The only difference between Sub-section (2) of Section 3  quoted above and its corresponding provision in the  TADA Act  1987  is that the latter provides one more  alternative

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punishment  even for the most serious offence, i.e.   death or imprisonment for life.

     In State vs.  Nalini {1999 (5) SCC 253} a three- Judge Bench  of  this  Court has quoted the dictum  laid  down  in Hitendra  Vishnu Thakur vs.  State of Maharashtra {1994  (4) SCC  602} with approval and concluded thus:  Thus the legal position  remains  unaltered that the crucial postulate  for judging whether the offence is a terrorist act falling under TADA  or  not  is  whether it was done with  the  intent  to overawe  the  Government as by law established or to  strike terror in the people etc.

     Here,  there is overwhelming evidence to show that the main  intention  of  the  persons who  fired  the  revolvers towards  the  podium wherefrom Sant Longowal spoke,  was  to administer  a  terror or shock wave to the people  at  large that  the  fate of all those who did not fall in  line  with Bhindaranwala  and  AISSF would be the same as inflicted  on the  victims of the shoot out at Sherpur.  Sant Longowal was not  the only target of the shooters, though perhaps he  was one  of the principal targets.  We have, therefore, no doubt that  the  said act would fall within the ambit  of  Section 3(1) of the TADA Act 1985.

     It does not require much discussion to concur with the conviction  passed  on  the  appellant  for  offences  under Section  302  read with Section 34 of the IPC as  well.   As pointed  out earlier, learned counsel for the appellant  did not  address  any arguments regarding that aspect as he  has focussed  solely on the extent of sentence by pleading  that it should not go beyond imprisonment for life.

     We have extracted Section 3(2) of TADA Act 1985 above. It could be discerned therefrom that the only sentence which the  sub-section permitted for awarding is death penalty  in case  the terrorist act resulted in the death of any person. It must be pointed out that TADA 1985 remained in force only for  a period of 2 years starting from 23.5.1985.  In  other words,  TADA  1985  expired on 22.5.1987.   Instead  of  the statute  reaching the stage of expiry by efflux of time,  if it  was  repealed  by another statute,  nothing  would  have survived  from  the repealed statute unless  the  succeeding enactment  incorporates necessary provision to the contrary. This  is  pithily  amplified  in Section 6  of  the  General Clauses Act.  But the aforesaid legal implications of repeal of  a  statute cannot be applied in the case of expiry of  a statute, {vide State of Punjab v.  Mohar Singh Pratap Singh, (AIR  1955 SC 84)}.  Normally the proceedings terminate ipso facto  with the expiry of the statute.  Craies on  Statutes Law  at  page 409 of the 7th edn.  has stated thus:  As  a general  rule, and unless it contains some special provision to  the  contrary,  after a temporary Act  has  expired,  no proceedings  can be taken upon it, and it ceases to have any further  effect.   Therefore,   offences  committed  against temporary  Acts  must be prosecuted and punished before  the Act  expires, and as soon as the Act expires any proceedings which  are  being  taken against a person  will  ipso  facto terminate.

     A  Constitution Bench of this Court in S.  Krishnan  & ors.   vs.   State of Madras & anr.  (AIR 1951 SC  301)  has given  approval  to the above observation of the  celebrated author.

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     While  dealing  with the implications of  ipso  facto termination  of  temporary  statutes  another  Constitution Bench  of this Court in State of Orissa vs.  Bhupendra Kumar Bose  {1962  Supple.   (2)  SCR  380}  has  held  that  the legislature  can,  and often does, avoid such  an  anomalous consequence  by  enacting in the temporary statute a  saving provision,  the effect of which is in some respects  similar to that of Section 6 of the General Clauses Act.

     Incidentally  it  has  to be pointed out that  in  the expired  statute  i.e.  TADA 1985 there is a  saving  clause which  is  embodied  in Section 1(3) which  mandates  for  a different  outflow  even after the expiry of the  Act.   The sub-section reads thus:

     It  shall come into force on such date as the Central Government  may,  by notification in the  Official  Gazette, appoint  and shall remain in force for a period of two years from  the date of its commencement, but its expiry under the operation of this sub-section shall not affect-

     (a)  the previous operation of, or anything duly  done or  suffered under, this Act or any rule made thereunder  or any  order  made  under  any such rule, or  (b)  any  right, privilege,  obligation  or  liability acquired,  accrued  or incurred  under this Act or any rule made thereunder or  any order  made  under  any  such  rule,  or  (c)  any  penalty, forfeiture  or punishment incurred in respect of any offence under  this Act or any contravention of any rule made  under this  Act  or of any order made under any such rule, or  (d) any  investigation, legal proceeding or remedy in respect of any  such right, privilege, obligation, liability,  penalty, forfeiture or punishment as aforesaid,

     and any such investigation, legal proceeding or remedy may  be  instituted,  continued  or enforced  and  any  such penalty,  forfeiture or punishment may be imposed as if this Act had not expired.

     The  effect  of operation of the above sub-section  is that  in  spite of the expiry of TADA 1985 on 22.5.1987  all liabilities,  penalties or punishments to which a person has already  become  liable in respect of any offence under  the said  Act would continue to chase him as though the said Act remains  in  force.   Of course it is only for  the  limited purpose  of such continuity that Parliament wanted the legal fiction  to  operate  that the Act would still  continue  in force.

     If  the  outflow  of TADA 1985 had continued  as  such without  any  succeeding legislation for covering  the  same subjects  there  would not, perhaps, have been any  problem. But  some  difficulty  has  been posed when  TADA  1987  was enacted  as its provisions substantially cover the same area as  in  the former legislation prescribing  punishments  for identical offences.  In TADA 1985 (during the subsistence of which  the  offence in this case was committed) the  extreme penalty,  without any alternative, has been provided for the most  serious  offence  under  section  3(2).   But  in  the succeeding  legislation  the harshness of the  sentence  has been   diluted  for  the  same   offence  by  providing   an alternative option to the court to impose.

     If  the  position was just in the reverse  order  i.e.

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the  later Act contained harsher sentence and the former Act contained  a  lesser  sentence the prohibition  embodied  in Article  20(1) of the Constitution that no person shall  be subjected  to  a penalty greater than that which might  have been  inflicted  under  the  law in force  at  the  time  of commission  of the offence would have come to the rescue of the  offender.   But  the  offender (who  is  liable  to  be convicted  for the same offence, had it been committed after the  coming  into force of the subsequent TADA  1987)  could have been punished with a sentence of imprisonment for life, because such an alternative is provided in that enactment.

     What is the jurisprudential philosophy involved in the second limb of Clause (1) of Article 20 of the Constitution? No person shall be subjected to a penalty greater than that which  might  have been inflicted under the law in force  at the  time of commission of the offence. It is a fundamental right  of  every person that he should not be  subjected  to greater penalty than what the law prescribed, and no ex post facto legislation is permissible for escalating the severity of  the punishment.  But if any subsequent legislation would downgrade  the  harshness  of  the  sentence  for  the  same offence, it would be a salutary principle for administration of  criminal  justice to suggest that the  said  legislative benevolence  can  be  extended  to the  accused  who  awaits judicial verdict regarding sentence.

     In  the above context a reference to Section 25 of the TADA  1987  will  provide  added   strength  to  the   above proposition.  Section 25 reads thus:

     25.Over-riding effect.- The provisions of this Act or any  rule  made thereunder or any order made under any  such rule shall have effect notwithstanding anything inconsistent therewith  contained in any enactment other than this Act or in  any instrument having effect by virtue of any  enactment other than this Act.

     There is inconsistency between the sentencing scope in Section 3(2) of TADA 1985 and in the corresponding provision in  TADA 1987.  The expression in any enactment other  than this  Act would, under section 25, encompass even enactment which,  though  expired  by  efflux of  time,  continues  to operate  by  virtue of any saving clause.  Accordingly,  the exclusivity  of  the extreme sentence contained  in  Section 3(2) of TADA 1985 must stand superseded by the corresponding benevolent  provision  in  TADA 1987.  It is  a  permissible course  and  the  express prohibition contained  in  Article 20(1)  of the Constitution is not a bar for resorting to the corresponding sub-section in TADA 1987.

     The  result  of the aforesaid discussion is  that  the court gets jurisdiction to award the alternative sentence of imprisonment  for life as for the offence under Section 3(1) of  TADA  1985.  On the fact situation of this case  and  in view  of  the distance of time, particularly in view of  the long  period  of  13  years   during  which  appellant   was languishing in jail under the spell of death penalty, we are persuaded to award the lesser alternative i.e.  imprisonment for life.

     We, therefore, confirm the conviction of the appellant of  the  offences  under which he stands  convicted  by  the Designated  Court  as  per the impugned judgment.   But  the sentence  as for the offence under Section 3(2) of TADA 1985

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is  altered  to imprisonment for life.  The other  sentences will  remain undisturbed and will run concurrently with  the main sentence.