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1993 Supreme(Kar) 303
Karnataka High Court
Premkumar - Appellant
Versus
State of Karnataka - Respondent
Decided On : 12-10-93
W.P. : 13998 of 1993
Hasmanth Pasha, Mukunda Menon, SATISH M.DODDAMANI
Headnote:(i) Terrorist and Disruptive Activities (Prevention) Act, 1987 - Section 3 (4) - Indian Penal Code, 1860 - Section 211 - There is a clear distinction between the two provisions Under section 212 an offence must be alleged to have been committed, whereas u/s. 3 (4) what is an offence is harboring or concealing or attempt to harbour or conceal any terrorist and no more.
Held: If a person is alleged terrorist and ultimately he is proved to be so it is enough. It is not necessary to have established that even at the time of filing of the charge sheet the offence must have been proved to have been committed. The further ingredient that persons who are harboured are known to the harbourer or has reason to believe to be the offenders with the intention of screening them from legal punishment is also absent Therefore, the two sections 2l2 I.P.C. and 3(4) of TADA Act being different and not identical. (para 7.2)
(ii) Terrorist and Disruptive Activities (Prevention) Act, 1987 - Section 3 (4) - Petitioner charge sheeted before the Designated court for the offence under - Charge of harbouring some terrorists. A through investigation made by the CBI - Petitioner has been cited as a witness in the comprehensive investigation done by the CBI and the charge sheet filed before Designated Court at Mad In this case petitioner has been accused of an offence Anamalous position - It would be appropriate to stay the trial before the Designated Court at Bangalore until disposed of the case at Madras. (Para 1)
(iii) Terrorist and Disruptive Activities (Prevention) Act, 1981- Sections 3 (3) and 3(4) - Petitioner charge sheeted for the offences under - Challenged - Petitioner was allegedly supplying essential articles to the members of the gang who were terrorists and some of them accused of involving in the assassination of Rajiv Gandhi - No allegation that he has conspired or advocated any terrorist act, but is merely stated to have abetted in the facilitating of the commission of a terrorist act - No indication as to which of the acts alleged could be treated as abetting the commission of a terrorist act - Non-application of mind - Order framing charges stands quashed - Matter stands remitted to the Designated Court for fresh consideration.
Held: The Designated Court should refer to the statements made either in the charge sheet or in the FIR or witnesses or other materials and correlate the same to any act attributable to the petitioner, which can be said to be an act of abetment of a terrorist act or amount to harbouring under Section 3(4) of TADA Act. Therefore, there is hardly any application of mind by the Designated Court to the material on record and to the provisions of law in his regard to draw any inference one way or other. At the stage of framing of charges the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging there from disclose all the ingredients constituting the alleged offence. The Court may for this limited purpose sift the evidence as it cannot be expected to accept all that the prosecution states as gospel truth even if it is opposed to common sense or broad probabilities. (Para 9)
Further held, that appropriate evaluation of the material and documents placed before the Court must be made to find out whether the facts emerging there from disclose the existence of all the ingredients of the alleged offence. Particularly when the consequence of framing a charge under TADA Act are more drastic than under IPC the Designated Court must apply its mind to different ingredients in the provisions of law and find out whether any facts alleged in F.I.R. or statement of witnesses can be attracted to the same. That exercise has not been dune at all in the present case. In the circumstances, the order made by the learned Judge before framing the charge stands quashed and consequently the framing of charges also stands quashed. The matter shall stand remitted to the Designated Court for fresh consideration of the question whether there is prima facie material to frame charges against the petitioner or not. In the view I have taken even if the charges are sought to be framed against the petitioner that proceeding before the Designated Court will have to be stayed until termination of the proceedings in C.C. 3/1992 before the Designated Court at Madras. (Para 9)
Result: Petition allowed.
( 1 ) THE petitioner has been charge sheeted in C. C. No. 93 of 1992 before the Disignated Court under the Terrorist and Distruptive Activities (Prevention) Act, 1987 (hereinafter referred to as the TADA Act ) and under Section 309 of the Indian Penal Code (hereinafter referred to as the IPC ). On the allegation that on 21-5-1991 at Sriperumbudur in Tamil Nadu State Sri Rajiv Gandhi was killed in a bomb blast and the Central Bureau of Investigation (hereinafter referred to as the CBI) which conducted the investigation into the death of Sri Rajiv Gandhi suspected one Shivarasan and Smt. Subha stated to be Sri Lankan citizens were involved in the said offence and the local police received some information on 18-8-1991 that the said Shivarsan and Smt. Subha were hinding in a house at Konankunte village within the jurisdiction of Second Respondent. On the basis of that information it is stated that the police were keeping a watch at Konankaunte village and on that very night they saw two persons entering a particular house with some bag and after few minutes they went back. Thereafter on 19/08/1991 at about 7 a. m. when the police were keeping a watch over the village, they saw two persons coming by walk after getting down from an auto-rickshaw and coming towards the said house and while they were coming towards the said house on seeing the police persons both of them started running away from them. Of them, one person ran away and the other person was apprehended who is none other than the petitioner. It is stated that while the petitioner was running away, he consumed some capsule said to be poisonous substance. As he was about to chew the said capsule it was removed from the mouth of the petitioner and he was taken to Bowring hospital for treatment and he was treated as an inpatient till 22-8-1991. The petitioner is said to have harboured the said Shivarasan and Smt. Shubha who were accused of involvement in the assassination of Sri Rajiv Gandhi. On discharge from the hospital the petitioner was arrested for an offence of attempt to commit suicide under Section 309, I. P. C. and he was released on bail by the II Additional Chief Metropolitan Magistrate, Bangalore , on 2-9-1991. The Second Respondent registered another case on 2-9-1991 for offences under Sections 3 and 5 of the TADA Act and thereafter he was produced before the Sessions judge, Bangalore, on 4th Sept. 1991 and thereafter before the District and Sessions Judge, Bangalore Rural District, and since then he is in judicial custody. On 23-3-1992 a charge sheet was filed for offences under Sections 3 (3), 3 (4) and 4 of the TADA Act. The Principal City Sessions Judge, Bangalore, was designated as the Court for the purpose of TADA Act by a notification and the petitioner was produced before the said Court on 30-6-1992.
( 2 ) IT is urged on behalf of the petitioner that he had been falsely implicated in the case and sought for his discharge as there was no material to frame charge for offences under TADA Act. However, the Designated Court Proceeded to frame charges by its order dated 16-7-1992 for offences under Sections 3 (3) and 3 (4) of the TADA Act and under Section 309, IPC and on the same day the plea of the petitioner was also recorded. An application for grant of bail was also rejected on 16-7-1992.
( 3 ) THE CBI which investigated into the circumstances leading to the death of Sri Rajiv Gandhi interrogated the petitioner and his statement was also recorded on 24-8-1991 and apprehended one Ranganath who was stated to be along with the petitioner in the autorickshaw when the petitioner was apprehended by the police at Konanakunte village on 19-8-1999. The said Rangananth has been arrayed as Accused No. 34 before the Designated Court under the TADA Act. However, the petitioner was only cited as a witness at serial No. 969 in the charge sheet and he was not arrayed as an accused there. The entire investigation has been conducted by the CBI authori
