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SUPREME COURT OF INDIA
Dr. A.S. ANAND AND FAIZAN-UDDIN, JJ.
Hitendra Vishnu Thakur and others etc. etc., Appellants
Versus
State of Maharashtra and others, Respondents.
Advocates appeared
Mr. Kapil Sibal, Mr. N. T. Vanamalai, Mr. Swaraj Kaushal, Mr. U. R. Lalit, Mr. K. M. Reddy and Mr. K. G. Bhagat, Sr. Advocates, Mr. P. N. Gupta, Mr. Bharat Raman, Mr. P. M. Hegde, Mr. Kailash Vasudev, Advocate for A.M. Khanvilkar, Mr. Yatendra Sharma, Mr. Raju Ramachandran, Mr. M.D. Rukar, Ejaz Maqbook, Mr. A. S. Bhasme, U.U. Lalit, Mr. Rajeev Sharma, Mr. P. N. Bhan and Mr. Joy Basu with them, for the appearing Parties, Mr. K.T.S. Tulsi, Addl. Solicitor General and 2628 Mr. K. M. Reddy, Sr. Advocate, Mr. A. S. Bhasme, Advocate with them, for the State.
*Against judgment and order of Designated Court, Pune in Applns. Nos. 18, 83-85 and 94 of 1993
Decided on 31-7-1993.
Held: The true ambit and scope of Section 3(1) is that no conviction under Section 3(1) of TADA can be recorded unless the evidence led by the prosecution establishes that the offence was committed with the intention as envisaged by Section 3(1) by means of the weapons etc. as enumerated in the Section and was committed with the motive as postulated by the said Section. Even at the cost of repetition, we may say that where it is only the consequence of the criminal act of an accused that terror, fear or panic is caused, but the crime was not committed with the intention as envisaged by Section 3(1) to achieve the objective as envisaged by the section, an accused should not be convicted for an offence under Section 3(1) of TADA. To bring home a charge under Section 3(1) the Act, the terror or panic etc, must be actually intended with a view to achieve the result as envisaged by the said section and not be merely an incidental fall out or a consequence of the criminal activity. Every crime, being a revolt against the society, involves some violent activity which results in some degree of panic or create some fear or terror in the people or a section thereof, but unless the panic, fear or terror-was intended and was sought to achieve either of the objectives as envisaged in Section 3(1), the offence would not fall stricto-sensa under TADA. (Para 11)
(ii) Criminal Procedure Code, 1973 - Section 167(2) as amended by 1993 Amendment Terrorist and Disruptive Activities Act, 1987 Sections 20(4)(b) and 20(4) (bb) 20(8) - Grant of bail to an accused under TADA - Once the period for filing charge sheet has expired and either no extension under clause (bb) of section. 20 (4) granted by the Designated court or the period of extension has also expired - Designated Court shall release him on bail- Amendment Act 43 of 1993 is retrospective in operation both clauses (b) and (bb) of sub-section (4) of Section 20 of TADA apply to the cases which are pending investigation on the date when the Amendment came into force w.e.f. 22.5.1993 and in which challan had not been filed till then.
Held: Since, both the clauses (b) and (bb) as, introduced by the Amendment Act, fall within the realm of procedural law, these would be applicable to pending cases since there is no vested right in an accused in the procedural law. The object which influenced the Parliament to introduce clause (bb) after curtailing the period of compulsory detention in custody to 180 days from one year by amendment of c1ause (b), clearly appears to be that if the investigating agency, which originally had one years time allowed to it to complete the investigation, could not complete the investigation when the period was suddenly curtailed to 180 days, it should not be put to a disadvantage for no fault of its and should be in a position to seek extension of time for completing the investigation beyond the period of 180 days. However, to prevent an abuse of claues (bb) and to avoid seeking of extension of time in a routine manner, the Legislature provided a safeguard in clause (bb) itself namely, that extension in such cases could be granted by the Court provided it is satisfied from the report of the public prosecutor that there are sufficient grounds for grant of such extension. In case clause (b) only and not clause (bb) is held to be applicable to pending cases as was suggested by Mr. Khanwilkar, it would render clause (bb) almost atiose in so far as pending concerned and defeat the legislative intent and further put the prosecution to an unfair disadvantage. The Amendment Act was not enacted with the object of giving benefit to an accused and subjecting the prosecuting agency to an unfair disadvantage and leaving it almost with no remedy for seeking further custody of an accused. We are, thus, of the opinion that Amendment Act 43 in so far as it modifies the period prescribed in clause (b) and introduces clause (bb) to sub-section (4) of Section 20, would apply retrospectively and apply to pending cases as well. We are unable to persuade ourselves to agree with Mr. Khanwilkar that clause (b) only and not clause (bb) of sub-section (4) of Section 20 should be held to have retrospective operation. The acceptance of such an argument would result in the creating of an anomalous situation and defeat the very object with which clause (bb) was introduced, after the period of compulsory detention was curtailed under clause (b) of Section-20 (4) of the Act. (Para 22)
Further held, that clause (b) of sub-section (4) of Section 20 was amended by the Amendment Act No. 43 of 1993 with effect from 22nd May 1993. Besides, reducing the maximum period during which an accused under TADA could be kept in custody pending investigation from one year to 180 days, the Amendment Act also introduced clause (bb) to sub-section 4 of the Section 20 enabling the prosecution to seek extension of time for completion of the investigation. Does the Amendment Act No. 43 of 1993 have retrospective operation and does the amendment apply to the cases which were pending investigation on the date when the Amendment Act came into force? There may be cases where on 22nd May 1993, the period of 180 days had already expired but the period of one year was not over. In such a case, the argument of learned counsel for the appellant is that the Act operates retrospectively and applies to pending cases and therefore the accused should be forthwith released on bail if he is willing to be so released and is prepared to furnish the bail bonds as directed by the Court, an argument which is seriously contested by the respondents. (Para 20)
(iii) Criminal Procedure Code, 1973 Section 167(2) as amended by 1993 Amendment - Terrorist and Disruptive Activities Act, 1987 - Sections 20(4)(b), 20(4)(bb) and 20(8) Grant of bail to an accused under T ADA Ambit and scope of Sections 20(4) and 20(8) Default of prosecution is not filing charge sheet with in time - An accused seeking bail u/s. 20(4) has to make an application to the Designated Court for grant of bail - Court shall release the accused on bail after notice to-the public prosecutor uninfluenced by the gravity of the offence - Section 20(8) does not control the grant of bail u/s. 20(4) Public Prosecutor can resist grant of bail by seeking extension of time under clause (bb) by filing a report - Requirement to notice to accused before granting extension - If period prescribed by clause (b) of Sec. 20(4) expires and extension not granted where extension granted but charge - sheet not filed within extended time - Indefensible right of the accused to be released on bail - The court shall release the accused on bail.
Held, that once the period for filing the charge sheet has expired and either no extension under clause (bb) has been granted by the designated Court or the period of extension has also expired, the accused person would be entitled to move an application for being admitted to bail under sub-section (4) of Section 20 TADA read with Section 167 of the Code and the Designated Court shall release him on bail, if the accused seeks to be so released and furnishes the requisite bail. We are not impressed with the argument of the learned counsel for the appellant that on the expiry of the period during which investigation is required to be completed under Section 20(4) TADA read with Section 167 of the Code, the Court must release the accused on bail on its own motion even without any application from an accused person, on his offering to furnish bail. In our opinion an accused is required to make an application if he wishes to be released on bail on account of the default of the investigating/prosecuting agency and once such an application is made, the Court should issue a notice to the public prosecutor, who may either show that the prosecution has obtained the order for extension for completion of investigation from the court under clause (bb) or that the challan has been filed in the Designated Court before the expiry of the prescribed period or even that the prescribed period has actually not expired and, thus resist the grant of bail on the alleged ground of default. The issuance of notice would avoid the possibility of an accused obtaining an order of bail under the default clause by either deliberately or inadvertently concealing certain facts and would avoid multiplicity of proceedings. It would, therefore, serve the ends of justice if both sides are heard on a petition for grant of bail, on account of the prosecutions default. Similarly when a report is submitted by the public prosecutor to the Designated Court for grant of extension under clause (bb), its notice should be issued to the accused before granting such an extension so that an accused may have an opportunity to oppose the extension on all legitimate and legal grounds available to him. It is true that neither clause (b) nor (bb) of sub-section 4 of Section 20 TADA specifically provide for the issuance of such a notice but in our opinion the issuance of such a notice must be read into these provisions both in the interest of the accused and the prosecution as well as for doing complete justice between the parties. This is a requirement of the principles of natural justice and the issuance of notice to the accused or the public prosecutor, as the case may be, would accord with fair play in action, which the courts have always encouraged and even insisted upon. It would also strike a just balance between the interest of the liberty of an accused on the one hand and the society at large, through the prosecution agency on the other hand. There is no prohibition to the issuance of such a notice to the accused or the public prosecutor in the scheme of the Act and no prejudice whatsoever can be caused by the issuance of such a notice to any party. We must as already noticed reiterate that the objection to the grant of bail to an accused on account of the default of the prosecution to complete the investigation and file the challan within the maximum period prescribed under clause (b) or sub-section (4) of Section 20 of TADA or within the extended period as envisaged by clause (bb), has to be limited to the cases where either the factual basis for invoking the default clauses is not available or the period for completion of investigation has been extended under clause (bb) and the like. No other condition, like the gravity of the case, seriousness of the offence or character of the offender etc. can weigh with the court at that stage to refuse the grant of bail to an accused under sub-section (4) of Section 20 TADA on account of the default of the prosecution.(Para 16)
Further held: Considering the ambit and scope of the two provisions, we are of the opinion that it is totally inconceivable and unacceptable re that the considerations for grant of bail under Sections 20(8) would be applicable to and control the grant of bail under Section 20(4) of the Act. The two provisions operate in different and independent fields. The basis for grant of bail under Section 20(4), as already noticed, is entirely different from the grounds on which bail may be granted under Section 20(8) of the Act. (Para 17)
Consequently held: We may, at this stage, also on a plain reading of clause (bb) of subsection 4 of the Section 20 point out that the legislature has provided for seeking extension of time for completion of investigation on a report of a the public prosecutor. The legislature did not purposely leave it to an Investigating officer to make an application for seeking extension of time from the court. This provision is in tune with the legislative intent to have the investigations completed expeditiously and not to allow an accused to be kept in continued detention during unnecessary prolonged investigation at the whims of the police. The legislature expects that the investigation must be completed with utmost promptitude but where it becomes necessary to seek some more time for completion of the investigation, the investigating agency must submit itself to the security of the public prosecutor in the first instance and satisfy him about the progress of the investigation and furnish reasons for seeking further custody of an accused. A public prosecutor is an important officer of the State Govt. and is appointed by the State under the Code of Criminal Procedure. He is not a part of the investigating agency. He is an independent statutory authority. The public prosecutor is expected to independently apply his mind to the request of the investigating agency before submitting a report to the court for extension of time with a view to enable the investigating agency to complete the investigation. He is not merely a post office or a forwarding agency. A public prosecutor mayor may not agree with the reasons given by the investigating officer for seeking extension of time and may find that the investigation had not progressed in the proper manner or that there has been unnecessary, deliberate or avoidable delay in completing the investigation. In that event, he may not submit any report to the court under clause (bb) to seek extension of time. Thus, for seeking extension of time under clause (bb), the public prosecutor after an independent application of his mind to the request of the investigation agency is required to make a report to the Designated Court indicating therein the progress of the investigation and disclosing justification for keeping the accused in further custody to enable the investigating agency, to complete the investigation. The public prosecutor may attach the request of the investigation officer along with his request or application and report, but his report as envisaged under clause (bb), must disclose on the face of it, that he has applied his mind and was satisfied with the progress of the investigation and considered grant of further time to complete the investigation necessary. The use of expression on the report of the public prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period" as occurring in clause (bb) in sub-section (2) of Section 167 as amended by Section 20(4) are important and indicative of the legislative intent not to, keep an accused custody unreasonably and to grant extension only on the report of the public prosecutor. The report of the public prosecutor, therefore, is not merely a formality but a very vital report, because the consequence of its acceptance affects the liberty of an accused and it must, therefore, strictly comply with the, requirements as contained in clause (bb). The request of an investigating officer for extension of time is no substitute for the report of the public prosecutor. Where either no report a it envisaged by clause (bb) is filed or the report filed by the public prosecutor is not accepted by the Designated Court, since the grant of extension of time under clause (bb) is neither a formality nor automatic, the necessary corollary would be that an accused would be entitled to seek bail and the court "shall" release him on bail if he furnishes bail as required by the Designated Court. It is not merely, the question of form in which the request for extension under clause (bb) is made but one of substance. The contents of the report to be submitted by the public prosecutor, after proper application of his mind, are designed to assist the designated Court to independently decide whether or not extension should be granted in a given case. keeping in view of the consequences of the grant of extension i.e. keeping an accused in further custody, the Designated Court must be satisfied for the justification, from the report of the public prosecutor, to grant extension of time to complete the investigation. Where the Designated Court declines to grant such an extension, the right to be released on bail on account of the default of the prosecution becomes indefeasible and cannot be defeated by reasons other than those contemplated by sub-section (4) of Section 20. (Para 18)
Based on the provided legal document from Hitendra Vishnu Thakur and others v. State of Maharashtra, here are the key points regarding the interpretation of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) and the Code of Criminal Procedure, 1973:
1. Ambit and Scope of Section 3(1) of TADA * Intention is Crucial: No conviction under Section 3(1) can be recorded unless the evidence establishes that the offence was committed with the specific intention envisaged by the section (e.g., to overawe the government, strike terror, or alienate sections of the people). (!) (!) (!) (!) * Motive and Weapons: The crime must be committed using the specific weapons enumerated in the section (bombs, dynamite, firearms, etc.) with the motive postulated by the section. (!) (!) * Incidental Terror vs. Intended Terror: Where terror, fear, or panic is merely a consequence or incidental fallout of the criminal act, but not the intended objective, the accused should not be convicted under Section 3(1) of TADA. (!) (!) (!) * Prima Facie Case: Designated Courts must carefully scrutinize material on record to ensure the offence falls strictly within the four corners of TADA before charge-sheeting or convicting. If the offence does not prima facie fall under TADA, the case must be transferred to a regular court under Section 18. (!) (!) (!)
2. Retrospective Operation of the 1993 Amendment (Act 43 of 1993) * Applicability to Pending Cases: The amendment reducing the maximum period of custody from one year to 180 days (Clause (b)) and introducing the power to seek extension (Clause (bb)) applies retrospectively to cases pending investigation on May 22, 1993, where the challan had not been filed. (!) (!) (!) (!) (!) (!) * Legislative Intent: Both clauses (b) and (bb) are procedural and apply to pending cases to prevent the prosecution from being put at a disadvantage due to the sudden curtailment of the investigation period, while also safeguarding against abuse. (!) (!)
3. Grant of Bail under Section 20(4) vs. Section 20(8) * Default Bail (Section 20(4)): Once the prescribed period (180 days) or extended period expires without a charge-sheet, the accused acquires an indefeasible right to bail. The grant of bail under this section is uninfluenced by the gravity of the offence or the merits of the case. (!) (!) (!) (!) (!) * No Control by Section 20(8): The conditions for bail under Section 20(8) (requiring the Public Prosecutor's opposition and reasonable grounds to believe the accused is not guilty) do not control the grant of bail under Section 20(4). The two provisions operate in different and independent fields. (!) (!) (!) (!) (!) * Role of Public Prosecutor: The objection to bail on account of prosecution default is limited to verifying if the factual basis for the default exists or if a valid extension was granted. Gravity of the case cannot be a ground to refuse bail under Section 20(4). (!) (!)
4. Requirements for Extension of Time under Clause (bb) of Section 20(4) * Report of Public Prosecutor: Extension of time cannot be granted solely on the application of the Investigating Officer. It requires a specific report from the Public Prosecutor indicating the progress of the investigation and specific reasons for detention beyond 180 days. (!) (!) (!) (!) (!) * Independent Scrutiny: The Public Prosecutor is an independent statutory authority and must apply their own mind to the request; they cannot merely act as a "post office" for the investigating agency. (!) (!) (!) * Notice to Accused: Natural justice requires that notice be issued to the accused before granting an extension under Clause (bb) so they have an opportunity to oppose it. (!) (!) (!) * Validity of Extension: If no valid report is filed by the Public Prosecutor, or if the report does not satisfy the requirements of Clause (bb), the accused is entitled to bail. (!) (!) (!)
5. Procedure for Bail Applications * Application Required: The accused must file an application for bail under Section 20(4); the court is not obligated to release them on its own motion without an application. (!) (!) (!) * Notice Mechanism: Upon receiving a bail application due to prosecution default, the court should issue notice to the Public Prosecutor to resist the bail or claim an extension. (!) (!) * Effect of Non-Extension: If the period expires and no extension is granted (or a valid extension is not obtained), the right to bail becomes absolute, provided the accused is prepared to furnish bail. (!) (!)
JUDGMENT
Dr. ANAND, J:- In this batch of criminal appeals and special leave petitions (criminal) the three meaningful questions which require our consideration are: (1) when can the provisions of Section 3(1) of the Terrorist and Disruptive Activities Act, 1987, (hereinafter referred to as the TADA) be attracted? (2) Is the 1993 Amendment, amending Section 167(2) of the Code of Criminal Procedure by modifying Section 20(4)(b) and adding a new provision as 20(4)(bb), applicable to the pending cases i.e. is it retrospective in operation? and (3) what is the true ambit and scope of Section 20(4) and Section 20(8) of TADA in the matter of grant of bail to an accused brought before the Designated Court and the factors which the Designated Court has to keep in view while dealing with an application for grant of Bail under Section 20(4) and for grant of extension of time to the prosecution for further investigation under clause (bb) of Section 20(4) and incidentally whether the conditions contained in Section 20(8) TADA control the grant of bail under Section 20(4) of the Act also? We shall take up for consideration these questions in seriatim.
2. When can the provisions of Section 3(1) of TADA be attracted?
3. Learned counsel for the appellants submitted that even though the constitutional validity of Section 3 of TADA has been upheld by a Constitution Bench of this Court in Kartar Singh v. The State of Punjab, (l994) 2 JT (S.C.), nonetheless keeping in view the stringent nature of the provisions of TADA the offence constituted by Section 3 of TADA must be the one which qualifies stricto senso as a "terrorist act" and unless the crime alleged against an accused can be classified as a "terrorist act" in letter and in spirit. Section 3(1) of TADA has no application and an accused shall have to be tried under the ordinary penal law and in such a fact situation, it is a statutory obligation cast on the Designated Court to transfer the case from that Court for its trial by the regular Courts under the ordinary criminal law in view of the provisions of Section 18 of TADA. It is submitted that the Designated Court should not, without proper application of mind, charge-sheet or convict an accused under Section 3 of TADA simply because the investigating officer, decides to include that Section while filing the challan and that it is not open to the State to apply TADA to the ordinary problems arising out of disturbance of law and order or even to situations arising out of the disturbance of public order - a more serious type of crime alone would justify trial under TADA.
4. Shri K.T.S. Tulsi, the learned Additional Solicitor General and Shri Madhava Reddy, Senior Advocate, appearing for the State on the other hand submitted that since the constitutional validity of Section 3 of TADA has been upheld by a Constitution Bench in Kartar Singhs case (1994 Cri LJ 3139) (SC) (supra), it is not permissible for this Bench to re-examine its validity on the basis of some argument which might have been raised before the Constitution Bench but was not so raised. It was pointed out that the three grounds of challenge which were raised before the Constitution Bench to question the legality and the efficaciousness of Sections 3 and 4 of TADA viz:
"(1) These two Sections cover the acts which constitute offences under ordinary laws like the Indian Penal Code, Indian Arms Act and Explosive Substances Act:
(2) There is no guiding principle laid down when the executive can proceed under the ordinary laws or under this impugned Act of 1987; and
(3) This Act and the Sections 3 and 4 thereof should be struck down on the principle laid down in State of West Bengal v. Anwar Ali Sarkar, 1952 SCR 284, and followed in many other cases including A. R. Antulay v. Union of India, (1988) 2 SCC 764.
were considered by the Constitution Bench and while upholding the vires and validity of Sections 3 and 4 of TADA, all the three grounds of challenge were negatived and therefore after th
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