Bombay High Court
Bonkya @ Bharat Shivaj Mane and others
Versus
State of Maharashtra
Decided On:

Headnote:Section 3-Conviction-Merely because the deceased and the two injured witnesses belong to a particular community, no Inference could be drawn that the attack on them was Intended to strike terror-Not proper for the Designated Court to draw an Inference of Intention from the mere consequences - Whether correct?

       The Designated Court fell in error in holding that an offence under Section 3 of T ADA had been committed by the accused-appellants in the established facts and circumstances of this case. Merely because the deceased and the two injured witnesses belong to Wadar community no inference could be drawn that the attack by the appellants on them was intended to strike terror in a section of the society, namely, the Wadar community. There is no basis for such an assumption. Prosecution had led no evidence in that behalf either. It appears to be a mere coincidence that P.W. 9, P.W. 14 and the deceased all belong to the Wadar Community. There is nothing on the record to disclose as to which community do the appellants belong to or what grievance they had against the Wadar community. By no stretch of imagination can it be said that the accused had the intention to strike terror, much less in a particular section of the society, when they inferred into an altercation at the video parlour or even when they went after the complainant party and opened an assault on them opposite Hotel J or at the Math. None out of those who were present at the video parlour received any injury and there is no material on the record to show as to which community did they belong to either. Prosecution has led no evidence nor brought any circumstances on the record from which any inference may be drawn that the appellants intended to strike terror amongst the Wadar Community. It was not proper for the Designated Court to draw an inference of intention from the mere consequence, i.e., the victims belonging to the particular community. The trial Court appears to have ignored to take into consideration the essential requirements for establishing an offence under Section 3 of TADA.

       Articles 19 and 226-See Bombay police Act, 1951-Sections 56(a) and (b) and 10(2).

       Section 19 - Appeal-Lies against judgment sentence or order (except Interlocutory order) of Designated Court on facts and on law to Supreme Court - No appeal or reversion lies to other Court.

       A bare perusal of the Section 19(1) shows that an appeal against the judgment, sentence or order, of the Designated Court (except an interlocutory order) shall lie on facts and on law to the Supreme Court and that no appeal or revision shall lie to any other Court. In the face of this express provision, there is no scope to urge that the appeal may be transferred to the High Court because of the acquittal of the appellants for the offence punishable under Section 3, TADA by Courts. In a case where the Designated Court finds that no offence under TADA is made out, it is open to the said Court to transfer the case to the regular Criminal Court under Section 18, TADA but once the charge is framed and the case is tried by the Designated Court, an appeal against conviction, sentence or acquittal lies only to the Supreme Court and to no other Court and to no other Court. Under Section 12 of TADA the Designated Court has the jurisdiction not only to try the case under TADA but also to try offences under the Indian Penal Code if the offence under TADA is connected with such other offences. The amplitude of powers available to this Court under Article 142 of the Constitution of India is normally speaking not conditioned by any statutory provision but it cannot be lost sight of that the Supreme Court exercises jurisdiction under Article 142 of the Constitution with a view to do justice between the parties but not in disregard of the relevant statutory provisions. The transfer of the appeal to the High Court, after hearing the appeal on merits and finding that Section 3 of TADA on the basis of the evidence led by the prosecution was not made out, is neither justiable nor proper nor permissible let alone justified. There cannot be piece-meal hearing of an appeal on merits-first by this Court to determine if an offence under TADA is made out or not and then by the High Court. The submission of the Counsel is, thus, devoid of merits and is conies, devoid of merits and is consequently rejected.

       Article 142- Terrorist and Disruptive Activities (Prevention) Act, 1987-Section 19-Appeal-Lies against judgment, sentence or order (except interlocutory order) of Designated Court on facts and on law to Supreme Court - No appeal or reversion lies to other Court.

       A bare perusal of the Section 19(1) shows that an appeal against the judgment, sentence or order, of the Designated Court (except an interlocutory order) shall lie on facts and on law to the Supreme Court and that no appeal or revision shall lie to any other Court. In the face of this express provision, there is no scope to urge that the appeal may be transferred to the High Court because of the acquittal of the appellants for the offence punishable under Section 3 of TADA by the Court. In a case where the Designated Court finds that no offence under TADA is made out, it is open to the said Court to transfer the case to the regular Criminal Court under Section 18 of TADA but once the charge is framed and the case is tried by the Designated Court, an appeal against conviction, sentence or acquittal lies only to the Supreme Court and to no other Court. Under Section 12 of TADA the Designated Court has, the jurisdiction not only to try the case under TADA but also to try offences under the Indian Penal Code if the offence under TADA is connected with such other offences.

       The amplitude of powers available to this Court under Article 142 of the Constitution of India is normally speaking not conditioned by any statutory provision but it cannot be lost sight of that the Supreme Court exercises jurisdiction under Article 142 of the Constitution with a view to do justice between the parties but not in disregard of the relevant statutory provisions. The transfer of the appeal to the High Court, after hearing the appeal on merits and finding that Section 3 of T ADA on the basis of the evidence led by the prosecution was not made out, is neither justiciable nor proper nor permissible let alone justified. There cannot be piece meal hearing of an appeal on merits-first by this Court to determine if an offence under T ADA is made out or not and then by the High Court. The submission of the Counsel is, thus, devoid of merits and is conse, devoid of merits and is consequently rejected.

       BOMBAY POLICE (AMENDMENT AND V ALIDATION) ORDINANCE, 1994

       Section 3-See Bombay Police Act, 195I-Sections 56 (a) and (b) and 10 (2).

       For Citation : 1(1996) CCR 27 at p. 33 (SC) : 1996 Cr CJ 114 (SC)