LawDistill
Supreme Court of India

STATE OF RAJASTHAN vs MOHINUDDIN JAMAL ALVI on 4 May, 2016

Cites 0 provisionsCites 4 judgmentsCited by 0
Crl.A. No.-002464-002466 - 2014Official PDFBench Arjan Kumar Sikri, Rajesh Kumar AgrawalAdvocates AJAY CHOUDHARY
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). 2464-2466/2014
STATE OF RAJASTHAN APPELLANT(S)
VERSUS
MOHINUDDIN JAMAL ALVI & ANR. RESPONDENT(S)
WITH
CRIMINAL APPEAL NOs. 464-466/2013
J U D G M E N T

All these appeals arise out of a common judgment dated

24.04.2012 rendered by the Designated Court for Rajasthan at JUDGMENT Ajmer in TADA Special Case Nos. 1, 2 & 3 of 1999.

Four accused persons were arrayed and prosecuted by the

prosecution under Sections 3(2)(ii), 3(3) and 6(1) of the

Terrorist and Disruptive Activities (Prevention) Act,

1987(hereinafter referred to as “TADA Act” and Section 4A of

the Explosive Substances Act,1908. The TADA Court has

acquitted two accused, namely, M. Jamal Alvi and Habib Ahmed.

Against their acquittal, State of Rajasthan has filed appeals

which are registered as Criminal Appeal Nos. 2464-66 of 2014.

Other two accused, namely, Abre Rehmat Ansari @ Qari and Dr.

Mohd. Jalees Ansari, have been convicted by the TADA Court and

challenging that conviction, these persons have filed Criminal

Appeal Nos. 464-466 of 2013. It is for this reason, we have

heard all these appeals together which are being disposed of

by this common judgment.

Mr. R.K. Dash, learned senior counsel, appearing for the

convicted accused persons submitted at the outset that he

would not be going into the merits of the case because of the

reason that the prosecution has to fail due to non-compliance

of the mandatory requirements of Section 20A of the TADA Act.

For this reason, we are eschewing any discussion on the merits

of the case. Section 20A deals with the cognizance of offense

that has to be taken under TADA Act and reads as under :- JUDGMENT

“20-A Cognizance of offence.

(1) Notwithstanding anything contained in the Code, no information about the commission of an offence under this Act shall be recorded by the police without the prior approval of the District Superintendent of Police.

(2) No court shall take cognizance of any offence under this Act without the previous sanction of the Inspector-General of Police, or as the case may be, the Commissioner of

Police.”

As per the aforesaid Section, no information about the

commission of offense under TADA is to be recorded by the

police without the prior approval of District Superintendent

of Police. The specific authority which is named under

sub-Section (1) of Section 20A is District Superintendent of

Police. In the present case, it is on record that the approval

that was taken was of Additional Director General of Police

Mr. Shyam Partap Singh Rathore. The TADA Court has treated the

said approval as valid because of the reason that approval is

given by an authority which is higher than the District

Superintendent of Police. The question, therefore, is as to

whether it is only District Superintendent of Police whose

approval will meet the requirements of law or it can be given

by an Officer higher in rank. This question is no more res

integra and is settled by a series of judgments of this Court. JUDGMENT It is not necessary to give account of all those judgments as

in the latest judgment rendered by this Court in Hussein

Ghadially @ M.H.G.A.Shaikh & Ors. vs. State of Gujarat (2014)

8 SCC 425, all the previous precedents are taken note of and

on that basis, this Court has reiterated the position in law

that even an authority higher in rank would not be competent

to give the approval as required under sub-Section(1)of

Section 21A of the TADA Act. The same has been interpreted in

the said judgment in the following manner:

“21. A careful reading of the above leaves no manner of doubt that the provision starts with a non obstante clause and is couched in negative phraseology. It forbids recording of information about the commission of offences under TADA by the Police without the prior approval of the District Superintendent of Police. The question is whether the power of approval vested in the District Superintendent of Police could be exercised by either the Government or the Additional Police Commissioner, Surat in the instant case. Our answer to that question is in the negative. The reasons are not far to seek:

21.1 We say so firstly because the statute vests the grant approval in an authority specifically designated for the purpose. That being so, no one except the authority so designated, can exercise that power. Permitting exercise of the power by any other authority whether superior or inferior to the authority designated by the Statute will have the effect of re-writing the provision and defeating the legislative purpose behind the same - a course that is legally impermissible. In Joint Action Committee of Air Line Pilots’ Association of India V. Director General of Civil Aviation (2011) 5 SCC 435, this Court declared that even senior officials cannot provide any guidelines or direction to the authority under the statute JUDGMENT to act in a particular manner. 21.2. Secondly, because exercise of the power vested in the District Superintendent of Police under Section 20-A (1) would involve application of mind by the officer concerned to the material placed before him on the basis whereof, alone a decision whether or not information regarding commission of an offence under TADA should be recorded can be taken. Exercise of the power granting or refusing approval under Section 20-A (1) in its very nature casts a duty upon the officer concerned to evaluate the information and determine having regard to all attendant circumstances whether or not a case for invoking the provisions of TADA is made out. Exercise of

that power by anyone other than the designated authority viz. the District Superintendent of Police would amount to such other authority clutching at the jurisdiction of the designated officer, no matter such officer or authority purporting to exercise that power is superior in rank and position to the officer authorised by law to take the decision.

21.3. Thirdly, because if the Statute provides for a thing to be done in a particular manner, then it must be done in that manner alone. All other modes or methods of doing that thing must be deemed to have been prohibited. That proposition of law first was stated in Taylor v. Taylor (1875)LR 1 ChD 426 and adopted later by the Judicial Committee in Nazir Ahmed v. King Emperor AIR 1936 PC 253 and by this Court in a series of judgments including those in Rao Shiv Bahadur Singh & Anr. v. State of Vindhya Pradesh AIR 1954 SC 322, State of Uttar Pradesh v. Singhara Singh AIR 1964 SC 358, Chandra Kishore Jha v. Mahavir Prasad 1999 (8) SCC 266, Dhananjaya Reddy v. State of Karnataka 2001 (4) SCC 9 and Gujarat Urja Vikas Nigam Ltd. V. Essar Power Ltd. 2008 (4) SCC 755. The principle stated in the above decisions applies to the cases at hand not because there is any specific procedure that is prescribed by the Statute for grant of approval but because if the approval could be granted by anyone in the police hierarchy the provision specifying the JUDGMENT authority for grant of such approval might as well not have been enacted.”

In arriving at the aforesaid conclusion, the Court also

referred to and relied upon the three Judge Bench decision of

this Court in Anirudhsinhji Karansinhji Jadeja & Anr. Vs State

of Gujarat (1995) 5 SCC 302, in which the position in law was

stated in the following manner:

“11. The case against the appellants originally was registered on 19-3-1995 under the Arms Act. The DSP did not give any prior approval on his own to record any information about the commission of an offence under TADA. On the contrary, he made a report to the Additional Chief Secretary and asked for permission to proceed under TADA. Why? Was it because he was reluctant to exercise jurisdiction vested in him by the provision of Section 20-A(1)? This is a case of power conferred upon one authority being really exercised by another. If a statutory authority has been vested with jurisdiction, he has to exercise it according to its own discretion. If the discretion is exercised under the direction or in compliance with some higher authority’s instruction, then it will be a case of failure to exercise discretion altogether. In other words, the discretion vested in the DSP in this case by Section 20-A(1) was not exercised by the DSP at all.”

Learned counsel appearing for the State of Rajasthan

tried to argue that the Division Bench in the aforesaid

judgment in Hussein Ghadially @M.H.G.A.Shaikh & Ors. (Supra) JUDGMENTdid not interpret the decision rendered in Anirudhsinhji

Karansinhji Jadeja & Anr. (Supra) correctly. As according to

him, in Anirudhsinhji Karansinhji Jadeja & Anr. (Supra), this

Court had given one more reason for quashing the TADA

proceedings which is contained in para 15 of the said

judgment, as in the said para, the Court noted that the State

Government had given sanction without even discussing the

matter with the Investigating Officer and without assessing

the situation independently which showed lack of proper and

due application of mind of the State Government by giving

sanction/consent. His submission predicated on para 15 of the

said judgment that the prosecution would be treated as bad in

law only if there was a default on the part of the prosecutor

on both the aspects, namely, only when violation of

sub-Section(1) of Section 20A as well as grant of prior

approval by the District Superintendent of Police is not there

and also when the State Government while giving

sanction/consent has not applied its mind independently. We do

not agree with the contention of the learned counsel for the

State. From the reading of the judgment in Anirudhsinhji

Karansinhji Jadeja & Anr. (Supra), it becomes clear that this

Court had given the aforesaid two reasons while holding that

the trial against the accused persons in the said case under

TADA was vitiated. However, that does not mean that both the reasons have to be satisfied. Even both are independent of

each other and even if one violation is found that would be

sufficient to upset the trial. That is what this Court did in

Hussein Ghadially @ M.H.G.A.Shaikh & Ors. (Supra).

From the aforesaid it becomes clear that since the prior

approval of the District Superintendent of Police was not

taken in the instant case, the trial got vitiated on this

ground itself. The appeals filed by the convict persons being

Criminal Appeal Nos. 464-466 of 2013 are allowed setting aside

their conviction. The other appeals which are preferred by the

State being Criminal Appeal Nos. 2464-2466 of 2014 are

dismissed.

The two convicts, namely, Abre Rehmat Ansari @ Qari and

Dr. Mohd. Jalees Ansari shall be released forthwith, if they

are not required in any other case.

[A.K. SIKRI]

MAY 04, 2016.