2004(2) Crimes 123 (SC)
Supreme Court of India
(From Court of Sessions Judge, Jahanabad-cum-Special Judge, TADA)
Doraiswamy Raju & Arijit Pasayat, JJ.
Madan Singh —Appellant
versus
State of Bihar —Respondent
Criminal Appeal No. 1285 of 2003
With
Crl. A. No. 1297 of 2003
Decided on 2-4-2004

Important points
1. The presence of huge quantity of arms and that too sophisticated arms unerringly shows the nature of the assembly was unlawful.
2. Terrorism though not defined under TADA, can be described as use of violence when its most important result is not merely the physical and mental damage of the victim but the prolonged psychological effect it produces or has the potential of producing on the society as a whole.

Headnote:(i) Terrorist and Disruptive Activities (Prevention) Act, 1987—Sections 3(2)(i)—Terrorist activities—Definition—‘Terrorism’ not defined in the Act—However, there is an inclusive and comprehensive phraseology adopted in engrafting the provision—It can be described as use of violence when its most important result is not merely physical and mental damage of the victim but the prolonged psychological effect it produces or has potential of producing—A ‘terrorist’ activity does not merely arise by causing disturbance of law and order or of public order—Fallout of the intended activity, is to be one that it travels beyond the capacity of ordinary law enforcement agencies to tackle it under ordinary penal law—It is in essence a deliberate and systematic use of coercive intimidation.

       Held : A ‘terrorist’ activity does not merely arise by causing disturbance of law and order or of public order. The fallout of the intended activity is to be one that it travels beyond the capacity of the ordinary law enforcement agencies to tackle it under the ordinary penal law. It is in essence a deliberate and systematic use of coercive intimidation. It is a common feature that hardened criminals today take advantage of the situation and by wearing the cloak of terrorism, aim to achieve acceptability and respectability in the society; because in different parts of the country affected by militancy, a terrorist is projected as a hero by a group and often unfortunately even by many misguided youth. As noted at the outset, it is not possible to precisely define “terrorism”. Finding a definition of “terrorism” has haunted countries for decades. A first attempt to arrive at an internationally acceptable definition was made under the League of Nations, but the one which the convention drafted in 1937 never came into existence. (Paras 16 & 17)

       Terrorism by nature is difficult to define. Acts of terrorism conjure up emotional responses in the victims (those hurt by the violence and those affected by the fear) as well as in the practitioners. Even the U.S. Government cannot agree on one single definition. The old adage “one man’s terrorist is another man’s freedom fighter” is still alive and well. (Para 18)

       Terrorism is one of the manifestations of increased lawlessness and cult of violence. Violence and crime constitute a threat to an established order and are a revolt against a civilised and orderly society. “Terrorism” though has not been separately defined under TADA there is sufficient indication in Section 3 itself to identify what it is by an all inclusive and comprehensive phraseology adopted in engrafting the said provision, which serves the double purpose as a definition and punishing provision nor is it possible to give a precise definition of “terrorism” or lay down what constitutes “terrorism”. It may be possible to describe it as use of violence when its most important result is not merely the physical and mental damage of the victim but the prolonged psychological effect it produces or has the potential of producing on the society as a whole. There may be death, injury, or destruction of property or even deprivation of individual liberty in the process but the extent and reach of the intended terrorist activity travels beyond the effect of an ordinary crime capable of being punished under the ordinary penal law of the land and its main objective is to overawe the Government or disturb the harmony of the society or “terrorise” people and the society and not only those directly assaulted, with a view to disturb the even tempo, peace and tranquility of the society and create a sense of fear and insecurity. (Para 19)

       (ii) Terrorist and Disruptive Activities (Prevention) Act, 1987—Section 3(2)(i)—Indian Penal Code, 1860—Section 302 rw/s 149, 307 r/ws 149, 352, 379—Arms Act, 1959—Section 27—Prosecution of twenty persons for offences under—Information received about assemblage of extremists at a village in the house of acquitted accused with police revolver and other ammunitions looted from the police and their plan to attack their adversaries to kill them—A raiding party formed for the purpose on reaching the house saw 20-25 persons there who on seeing the police party started firing—Even after firing by the police accused persons continued firing on police party—Some of the accused persons were apprehended by the police party—On searching of the house arms, ammunitions, several documents, files, letters regarding banned organisations, rifles, cartridges and carbine were seized—Deceased, officer-in-charge was killed during the incident—3 persons who were claimed to be terrorists were killed—Defence stand that they were not terrorists—Facts establishing common object of unlawful assembly—Assembly was not formed for protection from an attack by higher caste people as alleged—Accused persons were well prepared to commit violent acts—Whether trial Court was justified in convicting accused persons for the offences—(Yes).

       Held : Major plea which was emphasized relates to the question whether Section 149, IPC has any application for fastening the constructive liability on the basis of unlawful acts committed pursuant to the common object by any member of the acts which the members of the unlawful assembly knew to be likely to be committed which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he shared the same or was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless the commission of an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word ‘object’ means the purpose or design and, in order to make it ‘common’, it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means always necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression ‘in prosecution of common object’ as appearing in Section 149 have to be strictly construed as equivalent to ‘in order to attain the common object’. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. (Para 11)

       When the factual scenario is considered in the background of the legal position enumerated above, the inevitable conclusion is that Section 149 has been rightly applied. The fact that the unlawful assembly’s common object was to resist the enforcement of law, and to commit criminal offences and to overawe the authorities/public servants by use and show of criminal force stood firmly established on the evidence on record. Consequently, the criminal acts committed in furtherance of the common object, which acts were not only part of the common object of the unlawful assembly but also such which the members of the assembly knew reasonably well are such as are likely to be committed squarely attract Section 149 I.P.C. Certain salient factual aspects clearly establish prosecution version. Firstly, defence plea regarding alleged apprehended attack by higher caste people has been found to be of no substance. If really the accused persons had gathered for reaping singada as claimed, there was no reason for the call to be given to start shooting at the police and then actual firing. A person who apprehends attack from some other person would rather welcome the arrival of the police and bring to notice of the officials about the apprehended danger and not to start firing at the police officials knowing them to be police, with defiance adopting a violent posture. This itself is sufficient to discard the defence version about nature and object of assembly. Further, the materials seized show that the object of the assembly was preparation for commission of crime. The presence of huge quantity of arms and that too sophisticated arms unerringly shows the nature of the assembly was unlawful. One of the printed materials i.e. literatures seized clearly indicates their involvement in nature and type of activities which were envisaged in and covered by section 3 (1) of the TADA Act. The plea that place of occurrence was different and was near pond where singadas were grown is also without substance. The dead bodies of the 3 persons who fired at the police officials were found in the house said to belong to the acquitted accused Vakil Ram and the dead body of the deceased was also nearby. The evidence of the injured police officials is also relevant, and there is no reason as to why they would falsely implicate the accused persons. It is not correct as submitted by the learned counsel for the appellants that none the persons who were arrested were carrying arms. In fact, some of the prosecution witnesses have stated that they were also carrying arms, and this evidence has not been successfully rebutted. (Para 15)

       (iii) Indian Penal Code, 1860—Sections 141 and 149—Unlawful Assembly—Common object—Constructive liability—Expression ‘in prosecution of common object’ as appearing in Section 149 have to be strictly construed as equivalent to ‘in order to attain the common object’—‘Common object’ and ‘common intention’—Distinction.

       Held : ‘Common object’ is different from a ‘common intention’ as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The ‘common object’ of an assembly is to be ascertained from the acts and language and utterances of the members composing it the nature of arms carried, and from a consideration of all the surrounding circumstances. It may be gathered also from the course of conduct adopted by and behaviour of the members of the assembly at or before the actual conflict. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary ­under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. (Para 12)

       Result : Appeal dismissed.