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2009 Supreme(Raj) 871
[Citation : 2010(1) RLW 145 (SC)]
(Supreme Court)
Ganesh Gogoi Vs. State of Assam (Ganguly, J.)
HON'BLE DALVEER BHANDARI, J.
HON'BLE ASOK KUMAR GANGULY, J.
Ganesh Gogoi
Versus
State of Assam
Criminal Appeal No. 1018 of 2007, decided on 07.07.2009
P.K. Ghosh and Manish Goswami (for Map & Co) for Appellants;
Avijit Roy (for Corporate Law Group), for Respondents
Headnote:(a) Cr.P.C., 1973, Sec. 313 — Examination of accused — Principles of Sec. 313 — Provisions are for the benefit of the accused — Provisions are based on principles of natural justice — Examination u/Sec. 313 has to be of utmost fairness — Held — Examination not done with fairness — It vitiate the trial. (Paras 28 & 29)
¼d½ na-iz-la-] 1973] /kkjk 313 & vfHk;qDr dh ijh{kk & /kkjk 313 ds fl)kUr & izko/kku vfHk;qDr ds Qk;ns gsrq gS & izko/kku uSlfxZd U;k; ds fl)kUrksa ij vk/kkfjr gS & /kkjk 313 ds rgr ijh{k.k vR;Ur gh lgh rjds ls djuk gksrk gS & vfHkfu/kkZfjr & ijh{k.k lgh rjhds ls ugha fd;k x;k & ;g fopkj.k dks nwf"kr djrk gSA ¼in la[;k 28] 29½
(b) Terrorist and Disruptive Activities (Prevention) Act, 1987, Sec. 3(5) — Intention — Framing of charge — Absence of intention — On alleged date of occurrence Sec. 3(5) was not on Statute — Held — Framing of charge against accused u/Sec. 3(5) and conviction u/Sec. 3(2)(i) are bad in law. (Paras 33 to 36)
Appeal allowed.
¼[k½ vkradoknh ,oa fo?kVudkjh xfrfof/k ¼fuokj.k½ vf/kfu;e] 1987] /kkjk 3¼5½ & vkk; & vkjksi fojfpr djuk & vkk; dk vHkko & dfFkr ?kVuk dh frfFk dks /kkjk 3¼5½ fo/kku ij ugha Fkh & vfHkfu/kkZfjr & /kkjk 3¼5½ ds rgr vfHk;qDr ds fo:) vkjksi fojfpr djuk vkSj /kkjk 3¼2½¼1½ ds rgr nks"kflf) dkuwuu nks"kiw.kZ gSA ¼in la[;k 33 ls 36½
vihy Lohdkj dhA
2. On the benefit of doubt being extended, the other accused, namely, Premodhar Gogoi was acquitted.
3. The material facts of the case as alleged by the prosecution are that on 2.9.1991 at about 7.30 a.m., Sub-Inspector B. Kalita, who was in-charge of Naohalia Out Police Post informed the Office-in-Charge of Bordubi Police Station over telephone that on the previous day i.e. on 1.9.1991 at about 7.30 p.m. one Dinanath Agarwalla Naohalia was taken away in a Maruti car by some unknown persons and this information was entered vide General Diary Entry No. 19 dated 2.9.1991.
4. Thereafter, Prabhat Gogoi, Officer-in-Charge along with his staff reached the place of occurrence for investigation and subsequently an FIR was lodged by him.
5. On conclusion of the investigation, charge-sheet dated 25.9.2001 was filed under Sections 365/302/34 of the Indian Penal Code read with Sections 3(2)(i) and 3(5) of the TADA (P) Act against the appellant and Premodhar Gogoi.
6. Thereafter, on 10.1.2003, the learned Designated Court, Assam framed charges against the appellant under Section 302 of the Indian Penal Code and Section 3(5) of the TADA(P) Act. In the Trial evidence was adduced and the appellant was examined under Section 313 of the Code of Criminal Procedure and ultimately by the impugned judgment dated 11.7.2007 the appellant was convicted by the learned Designated Court under Section 3(2)(i) of the TADA(P) Act and was sentenced as stated hereinabove.
7. Mr. P.K. Ghosh, learned senior counsel appearing on behalf of the appellant while assailing the judgment under appeal advanced various submissions.
8. His first submission is that there is no evidence which can connect the appellant with the alleged incident and, therefore, the judgment of the learned Judge of the Designated Court is wholly unsustainable in law. Learned Counsel further submitted that apart from the aforesaid infirmity the appellant has been convicted only under Section 3(2)(i) of TADA(P) Act whereas he has not been charged under that Section at all.
9. Learned Counsel submitted that in view of the charge which has been framed, he could not have been convicted under Section 3(5) of the TADA(P) Act. He submitted that a charge under Section 3(2)(i) and a charge under Section 3(5) of the TADA(P) Act are different charges and one is not encompassed by the other. His further submission is that admittedly Section 3(5) of the TADA(P) Act has been inserted in the statute book in 1993 by Section 4 of Act 43 of 1993.
10. The incident, as alleged by the prosecution, had taken place in September 1991. Therefore, the appellant cannot be charged for having committed an offence which was not in existence on the day of alleged commission but was brought into the statute much later.
11. This appeal has been filed before this Court under Section 19(1) of the TADA(P) Act which provides for an appeal both on facts and on law and this Court being the First Appellate Court is entitled to look into the evidence on record. Section 19(1) reads as under:
“19. Appeal – (1) Notwithstanding anything contained in the Code, an appeal shall lie as a matter of right from any judgment, sentence or order, not being an interlocutory order, of a Designated Court to the Supreme Court both on facts and on law.
12. In this case from the impugned judgment it is clear that there is no direct evidence but there is only circumstantial evidence (see para 20 of the impugned judgment)
