2012 Supreme(SC) 664

Supreme Court of India
H.L. DATTU & CHANDRAMAULI KR. PRASAD, JJ.
Ashrafkhan @ Babu Munnekhan Pathan & Others - Appellants
Versus
State of Gujarat & Others - Respondents
CRIMINAL APPEAL NO. 482 OF 2002 WITH CRIMINAL APPEAL NOS. 486487 OF 2002 CRIMINAL APPEAL NOS. 762-765 OF 2002 CRIMINAL APPEAL NOS. 766-768 OF 2002
Decided On : 26-09-2012

Point in Issue :
Whether in the facts of the case conviction of accused appellant without prior approval as required under Section 20-A(1) by S.P. sustainable.

Headnote:Terrorist and Disruptive Activities Prevention) Act (TADA) — Sections 3, 5, 9, 14, 14(3), 18 and 20-A(1) — Arms Act, 1959 (Central Act 54 of 1959) — Sections 7 and 25(1) — Explosive Substances Act — Sections 4, 5 and 6 — Criminal Procedure Code, 1973 (Central Act 2 of 1974) — Sections 157 and 465 — Conviction of 11 accused and acquittal of 41 accused — Appeals against conviction and also appeal against acquittal — Main contention by accused that FIR registered under TADA without prior approval of District Superintendent of Police hence conviction is vitiated — Sustainability — Finding of — The contention of prosecution is that in the matter prior approval for recording the FIR was given by Deputy Commissioner A.R. Suroliya equivalent to District Superintendent of Police on 09.06.1994 or 11.08.1994 — Court on analysis of evidence led by prosecution found that the contention of grant of approval by Deputy Commissioner of Police is fit to be rejected — Deputy Commissioner A.R. Suroliya has been examined in the case and he has given a story of loss of original approval by advocate in the Court — For various reasons the Court held that the said story is not believable — Prosecution has however relied on another approval granted by Additional Secretary Home Deputy to establish compliance with the mandatory requirement under the TADA — Court held that the effect of absence of prior approval by District Superintendent of Police and the grant of approval by Additional Chief Secretary were not in conformity with the scheme of TADA — The contentions were also raised on behalf of prosecution that absence of approval is a causable defect and even absence approval conviction of accused appellants can be maintained under other penal provision — Court found that said contentions hence also no force and is liable to be rejected — In view of the fact that conviction of appellant is illegal and unsustainable the appeal filed by State against acquittal is necessary to be dismissed while acquittal of the accused appellants is to be maintained.

       Held :

       Having given Court anxious consideration to the facts of the present case and the evidence on record, Court is of the opinion that the case of the prosecution that the Deputy Commissioner granted approval under Section 20-A(1) of TADA before registration of the case is fit to be rejected. It is interesting to note that the Deputy Commissioner A.R. Suroliya has categorically stated in his evidence that he had gone to the Supreme Court with original records, which included the first information report, on which he had granted approval and handed over the same to the counsel. Thereafter, according to him, the said original first information report got lost or misplaced. It has been brought to our notice that accused Yusuf Laplap had not come to this Court for grant of bail and, therefore, the Deputy Commissioner had no occasion to come with the original record in connection with that case. True it is that some of the accused persons in the case had approached this Court for various reliefs, but in the face of the evidence of the Deputy Commissioner A.R. Suroliya that he came along with the record in connection with the case of the accused Yusuf Laplap is fit to be rejected. There are various other reasons also to reject this part of the prosecution story.

        [Para 19]

       No explanation is forthcoming from the side of the prosecution that when Deputy Commissioner A.R. Suroliya had already granted approval on 9th of June, 1994, what was the occasion to write to him for grant of another approval and the Deputy Commissioner granting the same. To prove prior approval, the prosecution has produced the xerox copy. According to the evidence of Deputy Commissioner A.R. Suroliya, he had got it prepared from the copy kept in his office. Court wonder as to how and why when a copy of the approval was kept in the office of the Deputy Commissioner itself, xerox copy was produced. It is relevant here to state that this witness, in his cross-examination, has admitted that he does not remember whether “there is any such paper in my office or not for grant of approval for which” he had deposed. [Para 20]

       In the face the case of the prosecution that prior approval was granted on 9th of June, 1994 is fit to be rejected. [Para 21]

       The effect of absence of prior approval by the District Superintendent of Police and the grant of approval by the Additional Chief Secretary were not found to be in conformity with the scheme of TADA. [Para 26]

       Hence, approval by the Additional Chief Secretary is inconsequential and it will not save the prosecution on this count, if found vulnerable otherwise. Court may however observe that in order to prevent the abuse of TADA, the State Government may put other conditions and prescribe approval by the Government or higher officer in the hierarchy but the same cannot substitute the requirement of approval by the District Superintendent of Police. Not only this, the District Superintendent of Police is obliged to grant approval on its own wisdom and outside dictate would vitiate his decision.

        [Para 30]

       Section 465 of the Code, which falls in Chapter XXXV, covers cases triable by a Court of Session also. Hence, the prosecution can take shelter behind Section 465 of the Code. But Section 465 of the Code shall not be a panacea for all error, omission or irregularity. Omission to grant prior approval for registration of the case under TADA by the Superintendent of Police is not the kind of omission which is covered under Section 465 of the Code. It is a defect which goes to the root of the matter and it is not one of the curable defects. [Para 32]

       It has mandated that no information about the commission of an offence under TADA shall be recorded by the police without the prior approval of the District Superintendent of Police. Not only this, further safeguard has been provided and restriction has been put on the Court not to take cognizance of any offence without the previous sanction of the Inspector-General of Police or as the case may be, the Commissioner of Police. Both operate in different and distinct stages and, therefore, for successful prosecution both the requirements have to be complied with. Court has not come across any principle nor we are inclined to lay down that in a case in which different safeguards have been provided at different stages, the adherence to the last safeguard would only be relevant and breach of other safeguards shall have no bearing on the trial. Therefore, Court reject the contention of the State that the accused cannot assail their conviction on the ground of absence of approval under Section 20-A(1) of TADA by the Deputy Commissioner, when the Commissioner of Police had granted sanction under Section 20-A(2) of TADA. [Para 35]

       Law Laid Down :

       The effect of non-compliance of Section 20-A (1) of TADA is that absence of prior approval vitiates the conviction.