1997 Supreme(SC) 1428

1997(9) Supreme 293
Supreme Court of India
(From Delhi)
M.K. Mukherjee and K.T. Thomas, JJ.
Kalpnath Rai etc. etc. —Appellants
versus
State (through CBI) —Respondent
Criminal Appeal No. 311 of 1997
With
Criminal Appeal Nos. 438, 445, 447, 486, 418, 440, 374, 545 and 591 of 1997
Decided on 6-11-1997
Counsel for the Parties :
For the Appellant : V.R. Reddy, Additional Solicitor General, Arun Jaitley, V.C. Mahajan, V.S. Kotwal, Rajinder Singh, S.R. Chitnis, K.T.S. Tulsi, Gopal Subramanium, M.N. Sukumaran Nair, S.B. Wad, Sr. Advocates, H.R. Khan, I.U. Khan, Rajeev K. Singh, Chandra Kant Nayak, R.N. Keshwani, D.K. Garg, Alok Mahajan, P.N. Gupta C.R. Dighe, Ms. Lata Krishnamurti, Vikas Pahwa, Anil K. Gupta, Ranjit Thomas, Ms. C.K. Sucharita, K.R. Nambiar, M.T. George, M. Nizamudeen, Sunil Mehta, Arun K. Sinha, Advocates.
For the Appearing Parties : A. Mariarputham, P. Parmeswaran, Y.P. Mahajan, T.C. Sharma, Advocates.

Important Points
1.  Mens rea is an essential ingredient for the offence envis­aged in Section 3(4) of TADA.
2.  A confession made admissible under Section 15 of the TADA can be used as against a co-accused only in the same manner and sub­ject to the same conditions as stipulated in Section 30 of the Evi­dence Act.

Headnote:(i) Terrorist and Disruptive Activities (Prevention) Act, 1987—Section 20A(1)—Requirement in—Whether prior approval envisaged in Section 20A(1) of TADA should necessarily be in writing?—(No)—Oral approval by itself is not illegal and would not vitiate further proceedings—Absence of approval of District Superintendent of Police as required u/s 20A(1) of TADA—Disentitles investigating agency to investigate into offences relating to TADA—However, it has statutory right to investigate into the other offences alleged in FIR like Section 5 of Explosive Substances Act.

       Held : There is nothing in the sub-section to indicate that prior approval of the District Superintendent of Police should be in writing. What is necessary is the fact of approval which is sine qua non for recording the informa­tion about the commission of the offence under TADA. The provision is intended to operate as a check against police officials of lower ranks commencing investigation into offences under TADA because of the serious consequences which such action befalls the accused. However, the check can effectively be exercised if a superior police official of the rank of DSP first considers the need and feasibility of it. His approval can be obtained even orally if such an exigency arises in a particular situation. So oral approval by itself is not illegal and would not vitiate the further proceedings. (Para 19)

       Further held; one of the offences included in the FIR (Ex. PW10/A) is Section 5 of the Explosive Substances Act. There is no legal re­quirement to obtain prior permission from the DSP to register a case for that offence. So the FIR as such was not vitiated even otherwise. Perhaps investigation into the offences could not have been commenced until approval was obtained from the DSP. Be that as it may, as we found that oral approval was obtained from the DSP concerned, that is sufficient to legalise the further action. (Para 20)

       (ii) TADA—Sections 12(2), 20A(2) —Sanction under—Criminal Procedure Code, 1973—Section 465—Impact of irregular sanction affecting prosecution—An error or irregularity in a sanction may vitiate prose­cution only if such error or irregularity has occasioned failure of justice—Held, on facts, that sanctioning authority intended to launch prosecution for offence of illegal possession of arms is clear from statements made in the order—Section for the offence (Section 5 of TADA) not specifically mentioned therein—That is of no serious conse­quence as long as the authority specified facts and mentioned further that for the offence arising from such facts, sanction is accorded—Once cognizance of any offence under TADA is validity taken by Designated Court with a proper sanction—Court empowered to convict accused for offence proved during trial.

       Held : When Parliament enacted the present Code they advisedly incorpo­rated the words “any error or irregularity in any sanction for the prosecution” in Section 465 of the present Code as they wanted to prevent 465 of the present Code as they wanted to prevent failure of prosecution on the mere ground of any error or irregularity in the sanction for prosecutions. An erro or irregularity in a sanction may, nevertheless, vitiate the prosecution only if such error or irregular­ity has occasioned failure of justice. (Para 27)

       Sub-section (2) of Section 465 of the Code is not a carte blanche for rendering all trials vitiated on the ground of the irregularity of sanction if objection thereto was raised at the first instance itself. The sub-section only says that “the court shall have regard to the fact” that objection has been raised at the earlier stage in the proceedings. It is only one of the considerations to be weighed but it does not mean that if objection was raised at the earlier stage, for that very reason the irregularity in the sanction would spoil the prosecution and transmute the proceedings into a void trial. (Para 29)

       Further held : Once cognizance of any offence under TADA has been taken validly by the Designated Court with a proper sanction the Court is not disa­bled from convicting an accused for any other offence proved during the trial, whether or not sanction has been accorded in respect of such other offence. The raison d’etre is that it is the court of law which after a judicial scrutiny is satisfied on the materials placed before it that another offence has been made out and such satisfaction is of a higher calibre than the satisfaction of a sanctioning authori­ty. The sanction envisaged in Section 20A is, of course, a curb im­posed on the prosecution agency to approach the Designated Court with a case. But once such approach is validly made with the proper sanc­tion then the court gets a wider jurisdiction to deal with the offend­ers in respect of all offences made out in the trial. (Para 31)

       (iii) TADA—Section 3(5)—Conviction under—Sustainability of—Two postu­lates in sub-section (5) must exist together—Accused should have been a member of ‘a terrorists gang’ or ‘terrorists organisation’ after 23-5-1993—Said gang or organisa­tion should have involved in terrorist­ acts subsequent to 23-5-1993—‘Terrorists acts’—Definition—For purpose of sub-section (2) the terrorist acts are those specified in sub-section (1)—For sub-section (5) terrorist acts would embrace not only those enumerated in sub-section (1) but those other acts indicated in sub-section (3) also—Conviction of A-1 to A-6 for offence u/s 3(5) held not sustainable for paucity of materials in evidence.

       Held : Sub-section 3(5) was inserted in TADA by Act 43 of 1993 which came into force on 23.5.1993. Under Article 20(1) of the Constitution “no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an of­fence”. So it is not enough that one was member of a terrorists gang before 23.5.1993. There are two postulates in sub-section (5). First is that the accused should have been a member of “a terrorists gang” or “terror­ists organisation” after 23.5.1993. Second is that the said gang or organisation should have involved in terrorist acts subsequent to 23.5.1993. Unless both postulates exist together Section 3(5) cannot be used against any person. (Paras 34 & 35)

       For the purpose of sub-section (2) the terrorist acts are those specified in sub-section (1) whereas for the purpose of sub-section (5) the terror­ist acts would embrace not only those enumerated in sub-section (1) but those other acts closely linked to them and indicated in sub-section (3) also. (Para 41)

       When so understood, if there is any evidence to show that the gang to which A-1, A-2, A-3 or A-6 or any of them was a member, has done any such act after 23.5.1993 then the accused concerned is liable to be convicted under Section 3(5) of TADA. (Para 42)

       But the fact is, in none of the charges framed against the above accused there is any specification that any terrorist act has been committed by a gang subsequent to 23.5.1993, nor has any evidence, whatsoever, been adduced to show that any terrorists gang (of which those accused are the members or not) has committed any terrorist act after the said date. (Para 43)

       (iv) TADA—Section 3(4)—Offence under—Word ‘harbours’—Definition—Ex­pression not defined in TADA—It must be understood as defined in IPC—Meaning attached to words in IPC can have a bearing on words used in TADA, unless they are differently defined in the Code—It is rea­sonable to attribute a mental element as indispensable to make it a penal act—Mens rea is an essential ingredient for offence envisaged in Section 3(4) of TADA.

       Held : The word ‘harbours’ has not been defined in TADA. (Para 47)

       The Word “Code” in TADA must be understood as referring to the Code of Criminal Procedure, 1973, as per Section 2(1)(b) of TADA. But the word “harbour” has not been defined in the Code. (Para 48)

       Be that as it may, we would refer to the expression “harbour” as understood in IPC, for, TADA is essentially a penal statute and hence the meaning attached to the words in the IPC can have a bearing on the words used in TADA, unless they are differently defined in the Code. (Para 51)

       It is, therefore, reasonable to attribute a mental element (such as knowlege that the harboured person was involved in a terrorist act) as indispensable to make it a penal act. That apart, there is nothing in the Act, either expressly or even by implication, to indicate that mens rea has been excluded from the offence under Section 3(4) of TADA. (Para 54)

       If Section 3(4) is understood as imposing harsh punishment on a person who gives shelter to a terrorist without knowing that he was a terrorist such an understanding would lead to calamitous consequences. Many an innocent person, habituated to offer hospitality to friends and relatives or disposed to zeal of charity, giving accommodation and shelter to others without knowing that their guests were involved in terrorist acts, would then be exposed to incarceration for a long period. For all the above reasons we hold that mens rea is an essential ingre­dient for the offence envisaged in Section 3(4) of TADA. (Para 56)

       (v) TADA—Section 3(4)—Prosecution of a company for offence under—Not maintainable—No provision in TADA which makes company liable for acts of its officers—On facts, conviction of A-12 held liable to be set aside.

       Held : that there is no question of A12 - company to have had the mens rea even if any terrorist was allowed to occupy the rooms in Hotel Hans Plaza. The company is not a natural person. We are aware that in many recent penal statutes, companies or corporations are deemed to be offenders on the strength of the acts committed by per­sons responsible for the management or affairs of such company or corporations e.g. Essential Commodities Act, Prevention of Food Adul­teration Act etc. But there is no such provision in TADA which makes the company liable for the acts of its officers. Hence, there is no scope whatsoever to prosecute a company for the offence under Section 3(4) of TADA. (Para 57)

       (vi) TADA—Section 3(4)—Conviction of A7, Regional Manager of a Hotel on finding that he harboured A-6 in the Hotel—Fact that A-6 had stayed in the Hotel not established—Conviction held not sustainable.

       Held : A-7 (Sabu v. Chacko) the Regional Manager of A-12 company has been convicted of offence under Section 3(4) on the strength of a finding that he had harboured A-6 Ahmed Mansoor in Hotel Hans Plaza, New Delhi on different days during a period between February and October 1993. For proving the said offence against him prosecution should have established four facts. They are: (1) A-6 Ahmed Mansoor had stayed in the Hotel; (2) Such stay was arranged at the behest of A-7; (3) A-6 himself was a terrorist; and (4) A-7 knew that A6 was a terrorist. (Para 58)

       What remains as against A-7 is that one person by name Suhel Ahmed had stayed in Hotel Hans Plaza - nothing more and nothing else. We need not, therefore, proceed further to the other three requirements necessary to fasten him with liability under Section 3(4) of TADA. The result is, conviction of A-7 in this case cannot be upheld. (Para 63)

       (vii) TADA—Section 3(4)—Conviction of A-8 and A9 under—A8 was Additional Personal Secretary of A9, Union Minister of State—Charge against them that they sheltered two terrorists in guest house attached to National Power Transmission Corporation—Evidence that A1 had stayed in NPTC Guest House—No evidence that his stay was at the instance of A-8—A8 and A9 cannot be convicted of offence u/s 3(4) of TADA. (Paras 66, 67 & 68)

       (vii) TADA—Section 15—Confession made by a co-accused—Admissibility—A confession made admissible u/s 15 of TADA can be used as against co-accused only in same manner and subject to same conditions as stipu­lated in Section 30 of Evidence Act—Conviction of A4 that he had harboured A1, A2 and A3 based on confessional statements of those three accused—A1, A2 and A3 were not tried for offence u/s 3(4) of TADA—Their confession cannot be used against A-4, even as for corrob­orative purposes—Conviction of A4 set aside.

       Held : that under Section 25 and 26 of the Evidence Act no confession made by an accused to a police officer, or to any person while he was in police custody could be admitted in evidence, and under Section 162 of the Code no state­ment made by any person during investigation to a police officer could be used in a trial except for the purpose of contradiction. In view of the aforesaid ban imposed by the legislature Section 15 of the TADA provides an exception to the ban. But it is well to remember that other confessions which are admissible even under the Evidence Act could be used as against a co-accused only upon satisfaction of cer­tain conditions. Such conditions are stipulated in Section 30 of the Evidence Act. (Para 72)

       Even if no conditions are satisfied the use of a confession as against a co-accused is only for a very limited purpose i.e. the same can be taken into consideration as against such other person. It is now well settled that under Section 30 of the Evidence Act the confes­sion made by one accused is not substantive evidence against a co-accused. It has only a corroborative value. (Para 74)

       A confession made admissible under Section 15 of the TADA can be used as against a co-accused only in the same manner and subject to the same conditions as stipulated in Section 30 of the Evidence Act. (Para 75)

       In view of the above legal position the confession made by A-1 (Subhash Singh Thakur), A-2 (Jaynendra Thakur and A-3 (Shyam Kishore Garikapti) cannot be used against A-4 (Chanderkant Patil), even as for corroborative purposes because the former set of accused were not tried for the offence under Section 3(4) of TADA. So the first condi­tion set forth in Section 30 of the Evidence Act is non-existent. Though under Section 15 of TADA such a confession is admissible in evidence even when the confessor and the co-accused are tried in the same case (no matter that they are not tried together for the same offence) the utility of such a confession as against the co-accused gets substantially impaired for all practical purposes unless both of them are tried for the same offence. Consequently in the present trial the confessions made by the first three accused would remain at bay so far as A-4 (Chanderkant Patil) is concerned as for Section 3(4) of TADA. The further corollary is since there is no substantive evidence against A-4 regarding Section 3(4) of TADA he cannot be convicted under this Section. (Para 76)

       (viii) Arms Act—Section 25—Conviction of A-5 under—Validity—A5 was found in possession of only a knife the length of which was 9.2"—What is prohibited under the notification No. 13/203/78 Home (G) is possession of a knife having a length of 7.62 cm and a width of 7.2 cm or above—Conviction of A5 held not sustainable. (Para 78)

       (ix) Criminal Trial—Evidence of police officers—Admissibility—Non exami­nation of independent witness—Whether Court must reject prosecution version solely on ground that no independent witness examined?(No).

       Held : There can be no legal proposition that evidence of police officers, unless supported by independent witnesses, is unworthy of acceptance. Non-examination of independent witness or even presence of such witness during police raid would cast an added duty on the court to adopt greater care while scrutinising the evidence of the police officers. If the evidence of the police officer is found acceptable it would be an erroneous proposition that court must reject the prosecu­tion version solely on the ground that no independent witness was examined. (Para 88)

       (x) Criminal Trial—Evidence—Daily Diary—Non production—Whether an adverse inference can be made from non production of such diaries ?—(No).

       Held : No doubt Daily Diary is a document which is in constant use in police station. But no prosecution is expected to produce such diaries as a matter of course in every prosecution case for supporting the police version. If such diaries are to be produced by prosecution as a matter of course in every case, the function of the police station would be greatly im­paired. It is neither desirable nor feasible for the prosecution to produce such diaries in all cases. Of course it is open to the defence to move the court for getting down such diaries if the defence wants to make use of it. (Para 91)

       (xi) TADA—Section 5—Conviction of A-1 to A-4 for offence under—Finding of trial Court that prosecution version regarding rounding up of A-1 to A-5 with arms and ammunition is true—Affirmed—Conviction upheld—Award of sentence of imprisonment for 5 years—Not commensu­rate to gravity of offence—Sentence must be enhanced after hearing accused on that point.

       Held : Perhaps the trial Court would have been persuaded to award that sentence in view of the fact that those accused were sentenced to imprisonment under Section 3(5) of TADA. Now that we have set aside the conviction of those accused of the offence under Section 3(5) of TADA we think that the sentence of imprisonment awarded to A-1 to A-4 for the offence under Section 5 of TADA must be enhanced. We can consider that aspect only after hearing A-1 to A-4 on that point. (Para 96)

       (xii) Interpretation of Statutes—Definition given in a statute—Not always exhaustive unless it is expressly made clear in the statute itself—Unless statute clearly excludes mens rea in commission of an offence—Same must be treated as essential ingredient of criminal act to become punishable. (Paras 40 & 55)

       (xiii) Criminal Trial—Criminal Procedure Code, 1973—Section 313—Examina­tion of accused under—Accused cannot be confronted during such ques­tioning with any circumstance which is not in evidence. (Para 62)