1994 Supreme(SC) 333

SUPREME COURT OF INDIA
(BEFORE S. RATNAVEL PANDIAN, MM. PUNCHHI, K. RAMASWAMY, S.C. AGRAWAL, R.M. SAHAI, JJ.)
KARTAR SINGH
Versus
STATE OF PUNJAB
KRIPA SHANKAR RAI
Versus
STATE OF U.P. AND ANOTHER
Writ Petition No. 1833 of 1984 and Writ Petition (Crl.) No. 194 of 1989, decided on March 11, 1994
Writ Petition No. 1833 of 1984{Writ Petition (Crl.) Nos. 5 of 1985, 407 and 317 of 1987, 358 of 1986, 1427 of 1981. 15432 of 1984, 194 of 1989, 144 of 1992, 697 of 1986, 123 of 1991, 562 of 1987. 1175 of 1991, 167-73, 131-35 of 1992, 7619, 1682 of 1981; Criminal Appeal Nos. 547 of 1985, 314 of 1986, 90 of 1991, 753, 266, 481 of 1985, 537 of 1989, 447 of 1985, 552, 502 of 1989, 364 of 1985, 139 of 1992, 579 of 1985, 279 of 1986, 645 of 1991, 717 of 1985, 556 of 1984, 595 of 1991, 676 of 1989, 541 of 1991, 466, 262, 720 of 1985, 172 of 1992, 76-77 of 1988, 630 of 1987 (with 530 of 1987) and SLP (Civil) No. 10766 of 1987}
Writ Petition (Crl.) No. 194 of 1989{W.P. (Crl.) Nos. 5883 of 1980, 555-61, 532, 76619 of 1982, 1682 of 1981, 1005 of 1984, 76 and 77 of 1982, 1109-10, 551 of 1985, 1241 of 1982, 2502, 6815 of 1981, 616 of 1982, 117. of 1986, 717-19, 549, 550 of 1985, 1034-35, 12, 13 of 1982, 1427 of 1981, 1008 of 1985, 1658-80 of 1981, 548-50, 507, 67 of 1989, 232 of 1990, 331 of 1988, 500 of 1992 and 539-41 of 1987}

Headnote:(1) Constitution of India - Article 248 r/w Entry 97 of List I and Entry I of List I Terrorist Affected Areas (Special Courts) Act, 1984- Terrorist and Disruptive Activities (Prevention) Act, 1985 - Terrorist and Disruptive Activities (Prevention) Act, 1987 - Legislative Competence of Parliament to enact these legislations - Challenged - Whether the Acts suffer from lack of legislative competence? - (No, the impugned Acts fall within the legislative competence of Parliament in view of Art. 248 r/w Entry 97 of List I and could fall within the ambit of Entry I of List I, namely, Defence of India). (Paras 39 to 42 & 241)

       (ii) Terrorist and Disruptive Activities (Prevention) Act, 1987 - Section 2(1)(i)(a) Word abet - Definition and meaning - Vague and imprecise definition - Expressions communication and association deployed in the definition should be qualified - Actual knowledge or reason to believe on the part of a person to be roped in with the aid of the definition should be read into it instead of reading it down.

       Held: This Section is shown to be blissfully and impermissibly vague and imprecise. As rightly pointed out by the learned counsel, even an innocent person who ingenuously and under filedly communicates or associates without any knowledge or having no reason to believe or suspect that the person or class of persons with whom he was communicated or associated is engaged in assisting in any manner terrorists or destructionists, can be arrested and prosecuted by abusing or misusing or misapplying this definition. In ultimate communication of the proceedings, perhaps that guiltless and innoxious innocent person may also be convicted. (Para 76)

       Further held: Therefore, in order to remove the anomaly in the vague and imprecise definition of word, abet, we for the above mention of reasons, are of the view that the person who is indicted of communicating or associating with any persons or class of persons who is engaged in assisting in any manner terrorists or disruptionists should be shown to have actual knowledge or to have reason to believe that the person or class of persons with whom he is charged to have communicated or associated is engaged in assisting in any manner the terrorists and disruptionists.

       To encapsulate, for the discussion above, the expressions communication and association deployed in the definition should be qualified so as to save the definition, in the sense that actual knowledge or reason to believe, on the part of a person to be roped in with the aid of that definition should be read into it instead of reading it down and clause (i) of the definition 2(1)(a) should be read as meaning "the communication or association with any person or class of persons with the actual knowledge or having reason to believe that such person or class of persons is engaged in assisting in any manner terrorists or disruptionists" so that the object and purpose of that clause may not otherwise be defeated and frustrated. (Paras 78 & 79)

       (iii) Terrorist Affected Areas (Special Courts) Act, 1984 - Section 3 - Power vested on the Central Government to declare any area as terrorist affected area - Whether suffers from vagueness? (No) - Section 3(1) does not suffer from any invalidity. (Paras 81 & 82)

       (iv) Terrorist and Disruptive Activities (Prevention) Act, 1987 - Sections 3 and 5. Legality and efficaciousness challenged on the ground that there is no guiding principle as to when a person is to be prosecuted - Provisions also attacked on the ground that both the sections cover the acts which constitute offences under ordinary laws - Whether sections 3 and 4 are liable to be struck down? - (No)

       Held: True, the offences arising out of the acts, enumerated in Sections 3 and 4 may be similar to the offences falling under the ordinary penal laws. In other words, various offences arising out of the terrorist or disruptive activities may overlap some of the offences covered by the other ordinary penal laws. It is not in dispute that the above provisions which define the expressions terrorist act and disruptive activities provide severe punishment and also inscribe minimum sentence for some acts constituting offences falling within the two provisions. Section 6 of the Act 1987 provides Enhanced penalties for a person who with intend to aid any terrorist or disruptionist, contravenes any provision of, or any rule made under, the Arms Act, 1959 (54 of 1959), the Explosives Act, 1984 (4 of 1884), the Explosive Substances Act, 1908 (6 of 1908) or the Inflammable Substances Act, 1952 (20 of 1957) - of not less than five years but which may extend to imprisonment for life and with fine, notwithstanding anything contained in the Acts or the rules made under respective Acts. (Para 84)

       Further held: The Act tends to be very harsh and drastic containing the stringent provisions and provides minimum punishments and to some other offences enhanced penalties also. The provisions prescribing special procedures aiming at speedy disposal of cases, departing from the procedures prescribed under the ordinary procedural law are evidently for the reasons that the prevalent ordinary procedural law was found to be inadequate and not sufficiently effective to deal with the offenders indulging in terrorist and disruptive activities, secondly that the incensed offences are arising out of the activities of the terrorist and disruptionists which disrupt or are intended to disrupt even the sovereignty and territorial integrity of India or which may bring about or support an y claim for the cession of any part of India or the secession of any part of India from the union, and which create terror and a sense of insecurity in the minds of the people. Further, the Legislature being aware of the aggravated nature of the offences have brought this drastic change in the procedure under this law so that the object of the legislation may not be defeated and nullified. (Para 85)

       (v) Terrorist and Disruptive Activities (Prevention) Act, 1987 - Section 5 - Possession of certain unauthorised arms, etc. in specified areas - The provision maybe invoked only if there is some material to show that the person who was possessed of the arms intended it to be used for terrorist or disruptionist activity or it was an arm and ammunition which in fact was used. (as per R.M. Sahai, J.) (Para 256)

       (vi) Constitution of India. Articles 14 and 21 - Terrorist and Disruptive Activities (Prevention) Act, 1987 - Section 8 - Forfeiture of Property of persons convicted by designated Court. Whether the provision is violative of Articles 14 and 21 of the Constitution? : (No)

       Held: The discretionary power given to be Designated Court under Section 8(1) and (2) is to be exercised under strict contingencies, namely that (1) there must be an order of forfeiture and that order must be in writing; (2) the property either movable or immovable or both must belong to the accused convicted of any offence of TADA or Rule there under; (3) the property should be specified in the order; (4) even though attachment can be made under Section 8(2) during the trial of the case, the forfeiture can be ordered only in case of conviction and not otherwise.

       The very fact that the order should be in writing implies that the Designated Court must give reasons for such an order even though the Section does not specifically require the Designated Court to record its reasons for so doing, because the word order even according to the Lexicon meaning is that it is a decision or direction either introductory or preliminary or final by the Court trying the offence. Secondly, under Section 19 of the Act, an appeal lies straight to the Supreme Court as a matter of right from any Order not being interlocutory order both on acts and law.

       For the above reasons, this contention fails. (paras 93 & 94)

       (vii) Terrorist and Disruptive Activities (Prevention) Act, 1987 - Section 9 Constitution of Designated Courts. Validity challenged on the ground of lack of legislative competence - Whether Section 9 is violative of Entry 65, List II of the Seventh Schedule and Arts. 233, 234 and 235 of the Constitution of India? - (No)

       Held: This impugned Act is enacted under En try 1 of List It he constitution of the Designated Courts by the Central Government cannot be said in violation of Entry 65 of List II which empower the State Legislature to constitute the courts. Under Section 9 of the Act, both the Central Government and the State Government are authorised to constitute Designated Courts by notification under sub-section (2) of Section 9. It is made clear that the Courts constituted by the Central Government either before or after the issue of the notification constituting the Designated Courts by the State Government shall have jurisdiction to try any offence committed in that area or areas and the Designated Courts constituted by the State Government shall not have any jurisdiction to try any offence committed in that area or areas.

       In addition, sub-section (3) of the impugned Section states that where any question arises as to the jurisdiction of any Designated Court, the decision taken by the Central Government in that regard will be final.

       For the foregoing discussion, we see no substance in the contention that Section 9 is violative of Entry 65, List II of the Seventh Schedule and Articles 233, 234 and 235 of the Constitution. (Paras 97 & 98)

       (viii) Terrorist and Disruptive Activities (Prevention) Act, 1987 - Section 9 (7) - Constitutionality challenged. Whether Section 9(7) offends any constitutional provisions? (No) Suggestion made that the Central Government and State Governments should keep in mind that the Judge designate has sufficient tenure of service even at the initial stage of appointment (as per Majority opinion) (Para 101). (Yes, appointment of Sessions and Add1. Sessions Judges to the Designated court u/s. 9(7) are unconstitutional) (as per K. Ramaswami, J.) - No one should be appointed as designated court who has retired from service (as per R.M. Sahai, J.) (Para- 257)

       As per Majority Opinion:

       Held: Sub-section (7) of Section 9 which speaks of the continuance of the service of the Judge is challenged on the ground that the continuance of a "Judge of a Designated Court even after attainment of the age of superannuation is a regressive provision because a Judge who is permitted to hold the office, hitherto, held, after superannuation will not be having his judicial independence; hut on the other hand he, holding the office on the pleasure of the executive, will be subversive since there is nothing to prevent the executive from terminating his appointment as and when it likes. This legal sanction of continuances in the service, according to the learned counsel, will not serve the purpose of just and fair trial and it would be violating the principle enshrined in Article 21. For sustaining the above submission, reliance was placed on In re Special Courts Bill; 1979 (2) S.C.R. 476. (para 100)

       On carefully going through the decision, we are of the view that the observation of this Court with reference to clause (7) of the Special Courts Bill cannot be strictly applied to the situation of the continuance of a Judge of a Designated Court under Section 9(7) for the reason that the person who was to be nominated by the Central Government in consultation with the Chief Justice of India under clause (7) of the Special Courts Bill was a person who had held the office as a Judge of the High Court, that is to say the appointment was after the retirement. But in the present Act, the Judge is permitted to continue the same judicial service as a Judge or Additional Judge, as the case may be, on the attainment of superannuation. In other words, the Judge on the attainment of the age of superannuation does not retire.

       Therefore, we see no force in the above argument challenging the constitutional validity of Section 9(7) by availing the observation in re Special Courts Bill. However, we would like to suggest that the Central Government and the State Government at the time of appointing a Judge or an Additional Judge to the Designated Court with the concurrence of the Chief Justice of the High Court concerned should keep in mind that the Judge designate has sufficient tenure of service even at the initial stage of/appointment, so that no one may entertain any grievance for continuance of service of a Judge of the Designated Court after attainment of superannuation. Hence Section 9(7) does not offend any Constitutional provision. (Para 101)

        As per Honble Justice K. Ramaswamy

       (Dissenting)

       Held: The legislative intention is clear that though designated judge attained superannuation under the relevant rules applicable to him in his normal judicial service as a sessions or additional sessions judge, he shall remain in service during the pleasure of the central or the appropriate state government. What would be its message? Is it consistent with the independence of the judiciary? Would it create confidence in the accused that the designated judge would be of stem stuff unbending before power or lure of personal advantage? The constitutional validity of s. 9(1) of the Act should be addressed from the above setting and perspectives. The concern here is not so much with the initial appointment as designated judge but with the control and supervisior over his discharge of judicial functions and as its part is he insulated for executive influence overtly or covertly. (Para 297)

       It would thus be seen that constitution of a designated court per se may be valid but as a court parallel to courts of Sessions and appointment of Sessions Judge or Addl, Sessions Judge as a judge of the designated court without administrative and judicial control of the High Court concerned and continuance in office after attaining superannuation arc clearly in negation of an" subversive to the independence of the judiciary, carefully conserved and given to the people of India. It would foster the "pleasure doctrine" laying the seeds to bear fruits of poisoned tree to destroy independence and impartiality of justice which the Constitution of India consciously avoided. It is, therefore, unconstitutional. (Para 298)

       (ix) Constitution of India - Article 14 Terrorist and Disruptive Activities (Prevention) Act, 1987. Sub-sections (2) and (3) of Section 11. Nature of the order the Chief Justice of India passes on the motion moved in that behalf by the Attorney General to transfer any case pending before a Designated Court in that State to any other Designated Court Order granting concurrence is only a statutory order and not a judicial order.

       Held: The according of the concurrence though imperative does not compel the Government to pass any order if, for any other intervening causes, the Central Government even after obtaining the concurrence decides that there is no necessity of transferring any case. In that situation the concurrence will have no effect. Therefore, the according of concurrence which is a condition precedent for passing the transfer order by the Government is only a statutory order and not a judicial order because there is no adjudication of any lis and determination of any issue. Hence the final order passed by the Government may be open to judicial review but not the concurrence accorded which is only a statutory condition to be satisfied before passing the transfer order by the Central Government. (para 112)

       Further held: The concurrence by the Chief Justice of India under section 11(2) and (3) is given or denied in the discharge of his statutory function on drawing the requisite subjective satisfaction on the reasons given in the motion or any material placed before him explaining the exigencies of the situation prevailing in the State which has necessitated the Central Government to obtain the concurrence and then transfer the case. Therefore, we feel that notwithstanding the power of the Parliament to exclude the application of rule of audi alteram partem in exceptional circumstances, it may be open to the Chief Justice of India in an appropriate case to have the view of the accused. (para 116)

       (x) Terrorist and Disruptive Activities (Prevention) Act, 1987 - Section 15 as amended by 1 act 43 of 1993 " Rule 15," Constitutional validity challenged - Whether the procedure prescribed for recording the confession" Under this Act, can be said [0 be unjust, unfair and oppressive, offending Articles 14 and 21-of the Constitution (If India? (No, certain guidelines suggested to be incorporated by appropriate amendments) (as per Majority) (Yes) (as per minority)

       Held: As per Majority,

       Though we at the first impression thought of sharing the view of the learned counsel that it would be dangerous to make a statement given to a police officer admissible (notwithstanding the legal position making the confession of an accused before the police admissible in some advanced court tried like United Kingdom, United States of America, Australia and Canada etc.) having regard to the legal competence of the Legislature to make the law prescribing a different mode of proof, the meaningful purpose and object of the legislation, the gravity of terrorism unleased by the terrorist and disruptionists endangering not only the sovereignty and integrity of the country but also the normal life of the citizens, and the reluctance of even the victims as well as the public in coming forward, at the risk of their life, to give evidence hold that the impugned Section cannot be said to be suffering from any vice of unconstitutionality. In fact, if the exigencies of certain situation warrant such a legislation then it is constitutionally permissible as ruled in a number of decisions of this Court, provided none of the fundamental rights under Chapter III of the Constitution is infringed.

       In view of the legal position vesting authority on higher police officer to record the confession hitherto enjoyed by the judicial officer in the normal procedure, we state that there should be no breach of procedure and the accepted norms of recording the confession which should reflect only the true and voluntary statement and there should be no room for hypercriticism that the authority has obtained an invented confession as a source of proof irrespective of the truth and creditability as it could be ironically put that when a Judge remarked, "Am I not to hear the truth", the prosecution giving a startling answer, "No, Your Lordship is to hear only the evidence". (Paras 155 and 156)

       Notwithstanding our. final conclusion made in relation to the intendment of Section 15, we would hasten to add that the recording of a confession by a Magistrate under Section 164 of the Code is not excluded by any exclusionary provision in the TADA Act, contrary to the Code-but on the other hand the police officer investigating the case under the TADA can get the confession or statement of a person indicted with any offence under any of the provisions of the TADA recorded by any Metropolitan Magistrate, Judicial Magistrate, Executive Magistrate or Special Executive Magistrate of whom the two latter Magistrates are included in Section 164(1) by sub-Section (3) of Section 20 of the TADA Act and empowered to record confession.

       The net result is that any confession or statement of a person under the TADA Act can be recorded either by a police officer not lower in rank than of a Superintendent of Police, in exercise of the powers conferred under Section 15 or by a Metropolitan Magistrate or Judicial Magistrate or Executive Magistrate or Special Executive Magistrate who are empowered to record any confession under Section 164(1) in view of sub-Section (3) of Section 20 of the TADA. (paras 161 &162)

       However, we would like to lay down following guidelines so as to ensure that the confesses obtained in the pre-indictment interrogation by a police officer not lower in rank than a Superintendent of Police is not tainted with any vice but is in strict conformity of the well recognised and accepted aesthetic principles and fundamental fairness:

       (1) The confession should be recorded in a free atmosphere in the same language in which the person is examined and as narrated by him;

       (2) The person from whom a confession has been recorded under Section 15(1) of the Act, should be produced before the Chief Metropolitan Magistrate or the Chief Judicial Magistrate to whom the confession is required to be sent under Rule 15(5) along with the original statement of confession, written or recorded on mechanical device without unreasonable delay;

       (3) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate should scrupulously recorded the statement, if any, made by the accused so produced and get his signature and in case of any complaint of torture, the person should be directed to be produced for medical examination before a Medical Officer not lower in rank than of an Assistant Civil Surgeon;

       (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, no police officer below the rank of an Assistant Commissioner of Police in the Metropolitan cities and elsewhere of a Deputy Superintendent of Police or a Police Officer of equivalent rank, should investigate any offence punishable under this Act of 1987.

       This is necessary in view of the drastic provisions of this Act. More so when the Prevention of Corruption Act, 1988 under Section 17 and the Immoral Traffic Prevention Act, 1956 under Section 13, authorise only a police officer of a specified rank to investigate the offences under those specified Acts.

       (5) The Police Officer if he is seeking the custody of any person for preindictment or pretrial interrogation from the judicial custody, must file an affidavit sworn by him explaining the reason not only for such custody but also for the delay, if any, in seeking the police custody;

       (6) In case, the person, taken for interrogation, on receipt of the statutory warning that he is not bound to make a confession and that if he does so, the said statement may be used against him as evidence, asserts his right to silence, the police officer must respect his right of assertion without making any compulsion to give a statement of disclosure;

       The Central Government may take note of these guidelines and incorporate them by appropriate amendments in the Act and the Rules. (paras 163 and 164)

       As per Honble Justice K. Ramaswamy (Dissenting)

       Held. that any officer not below the rank of the Superintendent of Police, being the head of the Dist. Police Administration responsible to maintain law and order is expected to be keen on cracking down the crime and would take all tough steps to put down the crime to create terror in the heart of the criminals. It is not the hierarchy of Officers but the source and for removal of suspicion from the mind of the suspect and the objective assessor that built in procedural safeguards have to be scrupulously adhered to in recording the confession and trace of the taint must be abscent. It is, therefore, obnoxious to confer power on police officer to record confession under S. 15(1). If he is entrusted with the solemn power to record a confession, the appearance of objectivity in the discharge of the statutory duty would be seemingly suspect and inspire no public confidence. If the exercise of the power is allowed to be done once, may be conferred with judicial powers in a lesser crisis and be normalised in grave crisis, such an erosion is anethema to rule of law, spirit of judicial review and a clear negation of Art. 50 of the Constitution and the Constitutional creases.

       It is, therefore, unfair, unjust and unconscionable, offending Art. 14 and 21 of the Constitution. (para 288)

       As per Honble Justice R.M. Sahai (Dissenting)

       Held: No civilised democratic country has accepted confession made by an accused before a police officer as voluntary and above suspicion, therefore, admissible in evidence. One of the established rule or norms accepted everywhere is that custodial confession is presumed to be tainted. The mere fact that the Legislature was competent to make the law, as the offence under TADA is one which did not fall in any State Entry, did not mean that the Legislature was empowered to curtail or erode a personal his fundamental rights. Making a provision which has the effect of forcing a person to admit his guilt amounts to denial of the liberty. The class of offence dealt by TADA may be different than other offence but the offender under TADA is as much entitled to protection of Articles 20 and 21 as any other. The difference in nature of offence or the legislative competence to enact a law did not affect the fundamental rights guaranteed by Chapter III. If the construction as suggested by the learned Additional Solicitor General is accepted it shall result in taking the law back once again to the days of Gopalan [AX. Gopalan v. State of Madras, A.I.R. 1950 S.C. 271. Section 15 cannot be held to be valid merely because it is as assault of law made by a body which has been found entitled to make the law. The law must still be fair and just as held by this Court. A law which entitles a police officer to record confession and makes it admissible is thus violative of both Articles 20(3) and 21 of the Constitution. (para 261)

       (xi) Terrorist and Disruptive Activities (Prevention) Act, 1987 – sub-section (2) & (3) to Section 16 - Identity of witnesses - The identity, names and addresses of the witnesses may be disclosed before the trial commences - It should be subject to an exception that the court for weighty reasons in its wisdom may decide not to disclose the identity and addresses of the witnesses especially of potential witnesses, whose life may be in danger. (Paras 181 and 182)

       (xii) Terrorist and Disruptive Activities (Prevention) Act, 1987 - Section 19 - Appeal Specialised procedure of appeal directly to the Supreme Court - Provision not constitutionally invalid - However, having regard to the practical difficulties to be faced by the aggrieved person, necessary amendments suggested.

       Held: We see no logic or convincing reasoning in providing no choice but forcing a person aggrieved by the judgment, sentence or order of the Designated Court passed only under the ordinary criminal law to prefer an appeal to the Supreme Court directly in which case the aggrieved person has to deny himself firstly, the right of appeal to the High Court and secondly, the benefit of approaching the Supreme Court under Article 136 of the Constitution. If every such person aggrieved by the judgment and order of the Designated Court passed under any criminal law other than the TADA has to approach the Supreme Court from far-flung areas, many of the persons suffering from financial constraints may not even think of preferring an appeal at all but to languish in jail indefinitely on that count. The statutory compulsion, in such a situation as pointed out by the counsel, would not only deny fair play and justice to such person but also amount to destruction of the professed object of criminal justice system in the absence of any other valid reason for an abnormal procedure.

       This predicament and practical difficulty, an aggrieved person has to suffer can be avoided if a person who is tried by the Designated Court for offences under the TADA but convicted only under other penal provisions and is acquitted of the offences under the provisions of TADA but convicted only under other penal provisions, is given the right of preferring an appeal before the next appellate court It is provided under the Code of Criminal Procedure and if the State prefers an appeal against the acquittal of the offence under the provisions of TADA then it may approach the Supreme Court for withdrawal of the appeal or revision, as the case may be, preferred by such person to the Supreme Court so that both the cases may be heard together.

       We have adverted to the practical difficulties faced by the aggrieved persons under the appeal provisions and how the same can be removed so that Parliament may take note of them and devise a suitable mode of redress by making the necessary amendments in the appeal provisions. This does not, however, mean that the existing appeal provisions are constitutionally invalid. (paras 186, 187)

       As per Honble Justice R.M. Sahai Held, that when 1984 Act was passed by the Legislature, it was primarily made due to grave situation prevailing in the State of Punjab. Today the 1987 Act has been extended even to far off States. The effect of such extension is that for every sentence, may be under Section 3 or 4 or any other section, one has to approach this Court. In many cases, the remedy of appeal may be illusory. For instance, one may be prosecuted under Sections 3,4 and 5 or under any other section and provision. He may be acquitted for the offence under Sections 3 and 4 and yet may be convicted under other sections or provision for minor offences which were tried by the designated court by virtue of Section 12 of the Act. He may not be able to approach this Court because of enormous expenditure and exorbitant legal expenses involved in approaching this Court. It should not be forgotten that ours is a vast country with majority on the poorer side. The knowledge of economic inability of seizeable section of the society to approach this Court by way of appeal may result in arbitrary exercise of power and excesses of the police. A provision for appeal to this Court in minor cases may result in defeating the remedy itself. Inability to file appeal due to financial reasons in petty matters may amount to breach of guarantee under Articles 14 and 21 of the Constitution. It may in many cases be denial of justice. I would, therefore, suggest that it may be examined if a proviso to subsection (1) of Section 11 can be added that a person convicted of any offence other than Sections 3 and 4 of the Act shall be entitled to file an appeal in the High Court under whose jurisdiction the designated court is situated. Further in case the State files an appeal against acquittal of the -accused under Sections 3 and 4 in this Court then the appeal of the accused filed in the High Court shall stand, automatically, transferred to this Court and shall be connected and heard along with appeal filed by the State. The State on such transfer allow the accused to have a counsel of his choice the expenses for which should be borne by the State. (para 262)

       (xiii) Terrorist and Disruptive Activities (Prevention) Act, 1987 - Sub-section (3) and (4) (a) of Section 20 - Inclusion of the Executive Magistrate or Special Executive Magistrate to record any confession or statement. Whether offends either Article 14 or 21. of the Constitution of India? - (No, the provision are constitutionally valid) - Conclusion in Rimal Kaur that clause (a) of Sub-Sec (4) of Sec 20 is held to be ultra vires is liable to be vacated.

       Held: that the Executive Magistrates while exercising their judicial or quasi-judicial functions though in a limited way within the frame of the Code of Criminal Procedure, which judicial functions are normally performed by Judicial Magistrate can be held to be holding the judicial office. Therefore, the contention of the learned counsel that the conferment of judicial functions on the Executive Magistrates and Special Executive Magistrates is opposed to the fundamental principle of governance contained in Article 50 of the Constitution cannot be countenanced. Resultantly, we hold that sub-section (3) of Section 20 of the TADA does not offend either Article 14 or 21 and hence this sub-section does not suffer from any constitutional invalidity. (Para 202)

       The modification in sub-section 4(a) of Section 20 is in the same line of sub-section (3); in that the Executive Magistrate and the Special Executive Magistrate are included along with the Judicial Magistrate. Therefore, whenever a person is arrested for all offence under the provisions of TADA Act, the arrestee can be transmitted to the Judicial Magistrate or the Executives Magistrate or the Special Executive Magistrate though the transmission of the accused under Section 167(1) for other offences is still only to the Judicial Magistrate. It may be recalled that under subsection 2-A of Section 167, a police officer can transmit the copy of the entry in the diary relating to the case and forward the accused arrested normally to the Judicial Magistrate and when he is not available, to a nearest Executive Magistrate who is empowered to authorise detention only for a specified period not exceeding seven days in the aggregate. But by the modification of Section 167 in relation to sub-section 4(a) of Section 20 of TADA, the Executive Magistrate or Special Executive Magistrate can perform all the powers of a Judicial Magistrate. (Para 205)

       (xiv) Terrorist and Disruptive Activities (Prevention) Act, 1987 - Sub-sec (7) of section 20 - Provision excluding the application of Section 438 Cr. P.C. in relation to any case under the Act and the Rules made there under - Whether can be said to have deprived the personal liberty of a person as enshrined in Art. 21 of the Constitution? - (No) - Deletion of application of Sec 438 in State of U.P does not offend either Art. 14 or 19 or 21 of the Constitution.

       Held, that where a person accused of a non-bailable offence is likely to abscond or otherwise misuse of his liberty while on bail, will have no justification to claim the benefit for anticipatory bail. Can it be said with certainty that terrorists and disruptionists who create terrorism and disruption and inject sense of insecurity, are not likely to abscond or misuse their liberty if released on anticipatory bail. Evidently, the Parliament has thought it fit not to extend the benefit of Section 438 to such offenders.

       Further, at the risk of repetition, we may add that Section 438 is a new provision incorporated in the present Code creating a new right. If that new right is taken away, can it be said that the removal of Section 438 is violative of Article 21. In Gurbabh Singh, there is no specific statement that the removal of Section 438 at any time will amount to violation of Article 21 of the Constitution. (para 211)

       (xv) Terrorist and Disruptive Activities (Prevention) Act, 1987 - Sub-section (8) of Section 20 - Limitations on the grant of bail Whether violative of the principle adumbrated in Article 21 of the Constitution ? - (No)

       Held: Sub-section (8) which imposes a complete ban on release on bail against the accused of an offence punishable under this Act minimises or dilutes that ban under two conditions, those being (1) the Public Prosecutor must be given an opportunity to oppose the bail application for such release; and (2) where the Public Prosecutor opposes the bail application the Court must be satisfied that the two conditions, namely, (a) there are reasonable grounds for believing that the person accused is not guilty of such offence and (b) he is not likely to commit any offence while on bail. Sub-section (9) qualifies sub-section (8) to the effect that the above two limitations imposed On grant of bail specified in sub-section (8) are in addition to the limitations under the Code or any other law for the time being in force on granting of bail. (para 221)

       Further held: The conditions imposed under Section 20(8)(b), as rightly pointed out by the Additional Solicitor General, are in consonance with the conditions prescribed under clauses (i) and (ii) of sub-section (I) of Section 437 and clause (b) of sub-section (3) of that Section. Similar to the conditions in clause (b) of sub-section (8), there are provisions in various other enactments - such as Section 35(1) of Foreign Exchange Regulation Act and Section 104(1) of the.

       Customs Act to the effect that any authorised or empowered officer under the respective Acts, if, has got reason to believe that any person in India or within the Indian customs water has been guilty of an offence punishable under the respective Acts, may arrest such person. Therefore, the condition that "there are grounds for believing that he is not guilty of an offence", which condition in different form is incorporated in other Acts such as clause (i) of Section 437(1) of the Code and Section 35(1) of FERA and 104(1) of the Customs Act, cannot be said to be an unreasonable condition infringing the principle of Article 21 of the Constitution. (Para 225)

       (xvi) Constitution of India - Art. 226 Terrorist and Disruptive Activities (Prevention) Act, 1987 - Right of a person indicted of an offence under the TADA Act to approach the High Court for bail - High Court has jurisdiction to entertain the application for bail However, it should refrain from exercising the extraordinary jurisdiction in such matters.

       As per Majority

       Held, though the High Court have very wide powers under Article 226, the very vastness of the powers imposes on it the responsibility to use them with circumspection and in accordance with the judicial consideration and well established principles. The legislative history and the object of TADA Act indicate that the special Act has been enacted to meet challenges arising out of terrorism and disruption. Special provisions are enacted in the Act with regard to the grant of bail and appeals arising from any judgment, sentence or order (not- being an interlocutory order) of a Designated Court etc. The over-riding effect of the provisions of the Act (Le. Section 25 of TADA) and the Rules made there under and the non-obstante clause in Section 20(7) reading, "Notwithstanding anything contained in the Code " clearly postulate that in granting of bail, the special provisions alone should be made applicable. If any party is aggrieved by the order, the only remedy under the Act is to approach the Supreme Court by way of an appeal. If the Courts entertain bail applications invoking their extraordinary jurisdiction under Article 226 and pass orders, then the very scheme and object of the Act and the intendment of the Parliament would be completely defeated and frustrated. But the same time it cannot be said that the High Courts have no jurisdiction. Therefore, we totally agree with the view taken by this Court in- Abdul Hamid Haji Mohammed (supra) that if the High Court is incurred to entertain any application under Article 226, that power should be exercising most sparingly and only in rare and appropriate cases in extreme circumstances. What those rare cases are and what would be the circumstances that would justify the entertaining of applications under Article 226 cannot be put in straight jacket However, we would like to emphasise and re-emphasise that the judicial discipline and comity of Courts require that the High Courts should refrain from exercising their jurisdiction in entertaining bail applications in respect of an accused indicted under the special Act since this Court has jurisdiction to interfere and correct the orders of the High Courts under Article 136 of the Constitution. (Para 234)

       As per Honble Justice K. Ramaswamy

       (Dissenting)

       Held, that though the High Court has jurisdiction and power under Article 224 to issue appropriate writ or direction or order in exceptional cases at the behest of a person accused of an offence triable under the Act or offence jointly triable with the offences under the Act, the High Court being amendable to appellate jurisdiction and judicial review under Article 136, this Court and this court having been statutory invested with the power and jurisdiction under article 19 of the Act, Judicial Pragmatism concurrence between this Court and the High Court the latter must observe comity and self imposed limitation on the exercise of the power under Article 226 and refuse to pass an order or to give direction which would inevitably result in exercising the jurisdiction and power conferred on this court under section 19 of the Act or sitting over the appellate order passed by this court, instances and not wanting that when this Court declined to grant bail under Section 19, some High Courts did entertain proceedings under Article 226 and granted bail to the self same accused, in fact even though this Court already declined to grant relief. Exercise of the power even in exceptional cases or circumstances is therefore, incompatible with an inconsistent with comity. Therefore, the only check up on a courts exercise of power is ones own sense of self restraint and due respect to comity. Judicial fragmentism, therefore, poignantly point, per force to observe constitutional propriety and. comity imposing self-discipline to decline to entertain proceedings under Article 226 over the matters covered under Section 19 or the matters in respect of which remedy under Section 19 is available or taken cognizances issue of process or prima facie case in the complaint or charge sheet etc., in other words all matters covered under the Act. Thus the High Courts jurisdiction got eclipsed and denuded of the power over the matters covered under the Act. I respectfully express my regrets for not failing in line with my brethren that the High Court may in exceptional cases exercise such power for the reasons aforesaid. (Paras 305 & -306)

       As per Honble Justice R.M. Sahai

       Held: As regards jurisdiction of the High

       Court to entertain an application for bail under Article 226 of the Constitution I am of the opinion that the High Courts being constitutionally obliged to ensure that any authority which exercises judicial and quasi-judicial powers in its jurisdiction functions within the framework of law is entitled to entertain the petition to determine if the proceedings I were not an abuse of process of court. But while exercising discretion the court must not be oblivious of the sensitivity of the legislation and the social objective inherent in it and, therefore, should exercise it for the sake of justice in rare and exceptional cases the details of which cannot be fixed by any rigid formula. [para 265 (6)]

       (xvii) Terrorist and Disruptive Activities (Prevention) Act, 1987 - Section 22 - Identification of a person on the basis of his photograph - Section 22 is struck down as being opposed to the fair and reasonable procedure enshrined in Art. 21 of the Constitution. (Para 234)

       (xviii) Terrorist and Disruptive Activities (Prevention) Act, 1987 - Section 2(1)(f) - Notified area - State Governments should review periodically and take decision either to decoity any area or continue the same as notified area and act accordingly - Opinion to be followed in the case of declaring any area as Terrorist affected area. (Para 235)