State Of W. B. vs Mohd. Khalid: Mohd. Rashid Khan: Abdulaziz

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1994 Supreme(SC) 1187

SUPREME COURT OF INDIA
S. MOHAN AND M.K. MUKHERJEE, JJ.
State of W.B. and another, Appellants
Versus
Mohammed Khalid and others, Respondents.
Criminal Appeals Nos. 327, 328, 329 of 1994
Decided on 24-11-1994.
WITH
State of W.B. and another, Appellants
Versus
Mohammed Rashid Khan and others, Respondents.
AND
State of W.B. and another, Appellants
Versus
Abdul Aziz and others, Respondents.

Headnote:(i) Constitution of India, 1950 - Article 226 - Terrorist and Disruptive Activities (Prevention) Act, 1987 - Sections 3 & 4. Validity of sanction and taking cognizance of cases against accused by Designated Court under TADA - Order of sanction and taking cognizance quashed Appeal - Finding that there was no order of sanction not correct factually - Order of sanction shows that sanctioning authority perused police papers. Materials are enough to bring case u/s. 3 (1) - Question of mentioning in sanction order that ordinary law has broken down, not relevant - Order of taking cognizance need not be reasoned order. High Court should have assumed that each of allegations made in charge-sheet to be factually correct and should have examined ingredients of offence - High Court exceeded its powers u/a 226 in quashing orders of sanction and taking of cognizance.
       Held: The order of the Designated Court dated 14.6.1993 is quashed on the following grounds:
       (1) Order taking cognizance does not show that the sanction to prosecute was considered. Reasons for taking cognizance have not been recorded.
       (2) The Order does not show that confessions were perused.
       (3) The court while taking cognizance can not refer to any material other than police report.
       (4) Intention to commit offence under TADA cannot be inferred as the motive was to defend Muslims. (Para 18)
       What actually the High Court has done is to appreciate the evidence at the pre-trial stage. (Para 18)
       Further held, that the High Court had overlooked the fact that Mr. Sujit Kumar Sanyal had sworn to the earlier affidavit as the Head of the Special Investigating Team which has also been mentioned by the Commissioner, Merely because of the failure of the Court to mention that it had perused the order of sanction while taking cognizance cannot lead to the conclusion that the existence of the order of sanction could be doubted. (Para 20)
       There is no justification on the part of the High Court to ignore this affidavit because the Commissioner of Police, Calcutta had sworn to the fact that a Special Investigation Team had been set up on March 18, 1993 which was headed by Sujit Kumar Sanyal.
       The order of sanction, on the face of it, shows that the sanctioning authority had perused the police papers. The High Court had to necessarily accept these averments on their face value. The correctness or otherwise of the statement could be gone into only at the time of trial. (Paras 22 & 23)
       (ii) TADA - Sections 3 & 4 - Bombs made for self-defence - No inference that there is not mens- rea and therefore, no offence under TADA - Very preparation of bombs and possession of bombs would tantamount to terrorising people - If proved, it will be a terrorist act Existence of 26 live bombs with accused is a clear indication of conspiracy - PreParation and storage of bombs are per se illegal acts. (Paras 31, 32 & 40)

JUDGMENT

MOHAN, J.:—Criminal Appeal No. 327 of 1994 is directed against the judgment and order dated 13th April, 1994 of the High Court of Calcutta in C. O. No. 9121 (W) of 1993.

2. Criminal Appeal No. 328 of 1994 is directed against the judgment and order dated 13th April, 1994 of the High Court of Calcutta in C. O. No. 8377 (W) of 1993.

3. Criminal Appeal No. 329 of 1994 is directed against the judgment and order dated 13th April, 1994 of the High Court of Calcutta in C. O. No. 8378 (W) of 1993.

4. All these cases arise out of writ petitions filed in the High Court of Calcutta challenging the validity of sanction and taking cognizance of the cases against each of the respondents by the Designated Court under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as TADA). A further challenge in the writ petition was also made to the vires of TADA. The orders of sanction and taking cognizance were quashed. The challenge to the Act was not gone into since the same was pending at the relevant time before this Court.

5. To highlight the issue involved, it is enough if we advert to the facts in Criminal Appeal No. 328 of 1994 since C. O. No. 8377 (W) of 1993, against which this appeal has been preferred, is the main case. The same decision was applied to Criminal Appeals Nos. 327 and 329 of 1994. The short facts are as under :

On the evening of March 16, 1993, an explosion occurred at or near Premises No. 267, B. B. Ganguly Street, Calcutta. 69 persons died, 5 of them died as a result of direct blast and 46 others were injured. The said premises and some other buildings adjoining it collapsed and / or were badly damaged.

6. A complaint was lodged on March 17, 1993 regarding this incident by Mr. B. K. Chattopadhyaya, Sub-Inspector attached to Bowbazar Police Station. This complaint was treated as First Information Report. On that basis, Case No. 84 dated 17-3-1993 was registered in the Police Station under Secs. 120B / 436 / 326 / 307 / 302, Indian Penal Code and Ss. 3 and 5 of the Explosive Substances Act. Having regard to the gravity of the offence, the Commissioner of Police, Calcutta passed an order that the case shall be investigated by a team of high-ranking police officials. In the course of investigation witnesses were examined, various seizures were made and confessions made by two of the accused, namely, Pannalal Jaysora and Mohammed Gulzar were recorded by a learned Metropolitan Magistrate on April 7 and May 19, 1993 respectively. During investigations it appeared that materials had transpired for prosecuting the accused under Ss. 3 and 4 of TADA. On 3rd of May, 1993, information to this effect was given to the learned Chief Metropolitan Magistrate, Calcutta. The learned Magistrate made a record of this fact and observed that the investigating officer might proceed to investigate offences under TADA.

7. Upon completion of investigation, the police obtained sanction to prosecute under Ss. 3 and 5 of the Explosive Substances Act from the State Government. Sanction under S. 20A(2) of TADA from the Police Commissioner was also obtained. The charge-sheet was submitted on 14th June, 1993, well within 90 days as is spoken to under S. 167(2)(a)(i) of the Code of Criminal Procedure (hereinafter referred to as the Code).

8. The sanction to prosecute under Ss. 3 and 5 of the Explosive Substances Act and the sanction under S. 20(A)(2) were obtained on 11th of June, 1993. While granting sanction under Section 20(A)(2) of TADA it was mentioned that the records were placed before the sanctioning authority for examination and perusal. It appeared that for the last 5/6 years accused Pannalal Jaysoara had been manufacturing bombs in the khas khas room on the first floor of 267, B. B. Ganguly Street, Calcutta as and when required by accused Mohammed Rashid Khan, first respondent in Criminal Appeal No. 328 of 1994. Accused Jaysoara was introduced to other accused, namely, Mohammed Abdul Aziz, first respondent in Cr

Click Here to Read the rest of this document