IMPORTANT POINT
At the stage of framing charge the Court has to consider whether a prima facie case is made out for proceeding against the accused. The Special Court has properly applied this judicial view in holding that prima facie case is made out under Section 5 of TADA (P) Act and thus rightly rejected accused s application under Section 18 of said Act for discharge and transfer of case.

JUDGMENT

D.P. Mohapatra, J.-In these three sets of appeals the judgment/order passed by the Designated Court of Thane at Pune on 10th November, 1998 in T.S.C. No.25/92 and 9/93 has been challenged. Criminal Appeal NOS. 1298-99/98 and Criminal Appeal Nos. 66-67/99 have been filed by the accused persons against rejection of the petition filed by them under section 18 of the Terrorists and Disruptive Activities (Prevention) Act, 1987 [for short the TADA (P) Act ]. Criminal Appeal Nos. 572-573/1999 have been filed by the State of Maharashtra against finding recorded by the Special Court that on the materials placed on record by the prosecution no charge can be framed under section 3 of the TADA (P) Act.

2. Since the incidents giving rise to the criminal cases are the same and the appeals are directed against the same judgment/order for the sake of convenience we will state the facts and deal with the case in Criminal Appeal Nos.1298-99/ 1998 in detail.

3. In this appeal filed under section 19 of the TADA (P) Act, accused no.4 (Suresh @ Pappu Bhudharmal Kalani) of T.S.C.No.25/1992, has challenged the order passed by the Designated Court of Thane rejecting the application filed by him under section 18 of the Act for discharging him from the charges under sections 3 and 5 of the TADA (P) Act and to transfer the case to the Sessions Court on the ground, inter alia. that no case under section 3 or section 5 of the TADA (P) Act is made out against him.

4. The prosecution case, shortly stated, is as under:-

One Dunichand Kalani, who was the President of Ulhasnagar Taluka Congress, used to make complaints against one Gopal Rajwani and his political supporters about their criminal activities. On 9th of April 1989 at about 9.00 p.m. the said Dunichand Kalani was murdered on a public road by 10-12 persons armed with weapons like knives, gupties, revolvers, etc. On the FIR lodged by one Narayan Budharmal Kalani at Ulhasnagar Police Station a case under sections 302, 147,148,149 of the Indian Penal Code and section 25 of the Arms Act was registered against Gopal Rajwani and some others. In the said case the provisions of TADA (P) Act was involved and it was registered as C.R.No.T-296/89 under section 3 of the TADA (P) Act and under sections 147,148,149 and 120B, 302 of IPC and section 25 of the Arms Act. After investigation charge-sheet was filed in the case against 23 persons. The appellant is the nephew of deceased Dunichand Kalani. Both Gop Beharani as well as the accused no.4 were elected as Municipal Councillors and a dispute arose between them on account of claim over Presidentship of the Ulhasnagar Municipal Council. On this account, it is alleged, that there was enmity between Gop Beharani and accused No. 4.

5. On 10.7.1992 while the deceased Maruti Dagadu Jadhav was sitting in his office at about 8.15 p.m. and chit-chatting with one Arun Kaklij, one white coloured Maruti van No.MH-12-1042 came near his office and three persons alighted from the same and rushed inside the office. Those three persons fired bullets at Maruti Dagadu Jhadav from the revolver held by them. In the incident Arun Kaklij was also injured. After the incident the assailants escaped in the Maruti van. The FIR was recorded by PSI of the Vithalwadi Police Station on the dying declaration made by Maruti Dagadu Jadhav in which he gave the description of three assailants. The motive for the murder was ascribed to previous enmity. Thereafter Maruti Degadu Jadhav was admitted in the nursing home for treatment. At about 10.35 p.m. on the same day i.e. 10th July , 1992, he succumbed to the injuries. Thereafter the case registered under sections 147, 148, 149 and 307 IPC and section 25(1 )(A) of the Arms Act was changed from section 307 to section 302 IPC. On 20th July 1992 the provisions of section 5 of the TADA (P) Act was invoked in the case. In course of investigation it came to light that there was long standing enmity between Gopal Rajwani and Pappu Kalani, and the