JUDGMENT
M.N. Rao, J.
1. This is application filed under Article 226 of the Constitution of India for issue of a writ of Habeas Corpus seeking discharge or accused No. 3 – Ch. Kalyan Chakravarthy in crime No. 30 of 1994 of Madannapet police station registered under the provisions of the Terrorist & disruptive Activities (Prevention) Act, 1987, as Section 20-A of the Terrorist & Disruptive Activities (Prevention) Act, 1987, was not complied with.
2. In the first information report filed by the Inspector of Police, Madannapet police station, in the Court of the Metropolitan Sessions Judge, Hyderabad, to designated court, it is mentioned that on reliable information that activities of CPI (ML) People’s War Group, a banned organisation, were contemplating terrorist and disruptive activities with a view to over-throwing the lawfully established Government and for that purpose carrying on deliberations in the first floor of house No. 17-2-870/9 at Madannapet in Hyderabad city, he conducted raid on 3-4-1994 at 3.30 p.m. accompanied by police personnel, on the premises in the company of two panchayatdars Epuri Sri Hari and D. Salaiah. At 4.00 p.m. when the raid was conducted, four persons were found at the premises holding deliberations and all of them were taken into custody. They are, (1) Puttabathini Hari Prasad, son of Ramgopal (A-1), (2) Golconda Ramesh, Son of Ramaswamy (A-2), (3) Ch. Kalyan Chakravarti, Son of Janardhan (A-3), i.e., the petitioner herein and (4) Meriigala Ramesh, Son of Sunder Rao (A-4). A-1 informed the police that he had taken on rent the premises along with Ramana Reddy alias Ramana (A-5) and Chandrasekhar (A-6), both of them are working as central organisers, students wing, Hyderabad City, and in order to commit actions in the city they procured detonators, gelation sticks and other explosive material. In the presence of the mediators the following articles were sized :
1. Two granites.
2. 45 gelatin sticks.
3. 27 electric detonators.
4. Two safely fuse wires.
5. Cardex. one.
6. Literature in the form of pamphlets packed in two bundles exhorting the people to observe bandh on 14-5-1994 as a protest against Dunkel Draft.
7. Clothes.
3. On the same day at 5.30 p.m. the Inspector of Police registered the offence in Crime No. 30 of 1994 of madannapet police station under section 3 and 5 of the A.P. Explosive Substances Act, sub-sections (1) and (3) of section 3, Sections 4, 5 and 6 of the Terrorist & Disruptive Activities (Prevention) Act, 1987, (for short ‘the Act’), and under section 8(1) of the A.P. Public Security Act. The seizure report, dated 3-4-1994, filed into the Court contains the details of the documents seized. On the next day i.e., on 4-4-1994 the original first information report consisting of four papers, original report consisting of three papers and the permission letter issued by the Deputy Commissioner of Police, South Zone, Hyderabad, in Memo No. HS-5/458/1994 granting permission for registering the case under sub-sections (1) and (3) of section 3, Sections 4, 5 and 6 of the Act comprising of one paper were filed into the Court of Metropolitan Sessions Judge, Hyderabad (designated court) by the Inspector of Police Madannapet.
4. In this writ petition, one of the questions raised is that the first information report was registered by the Inspector of Police without obtaining the prior approval of the Superintendent of Police (Deputy Commissioner of Police in this case) a mandatory requirement under section 20-A of the Act and, therefore, the petitioner must be discharged from all the accusations relatable to the provisions of the Act.
5. When the writ petition was taken up for hearin, Shri K. G. Kannbhiran, learned counsel for the petitioner, wanted to advance arguments with regard to the interpretation of Section 5 of the Act and after seeking permission of the Court a petition was filed raising additional grounds in that regard. In view of the later development we directed notice to the Union of India.
6. In the counter-affidavit filed by the Deputy Commissioner of Police, South Zone, it is averred inter-alia that he accorded approval after being satisfied about the necessity and that the papers were filed into the Court by the Inspector of Police after obtaining his approval on 4-4-1994.
7. Shri K. G. Kannadbhiran, the learned senior counsel, advanced arguments as to the interpretation that should be placed on Section 5 of the Act viz., that in order to judge the criminality of a person under section 5, the provisions of Section 3 cannot be ignored; unless it is proved by the prosecution that unlawful possession of weapons in a notified area was intended for the purposes of committing crimes of the nature mentioned in Section 3(1), no person can be convicted under section 5. One other argument advanced by Shri K. G. Kannabhiran is that Section 15 of the Act which permits confessions recorded by a police officer to be brought on record as evidence is violative of Article 14 of the Constitution of India; when two procedures are prescribed by law for recording confessions one, the time honoured procedure contemplated under section 164 of the Criminal Procedure Code under which several safeguards are ensured when the confessions are recorded by a Magistrate in order to prevent miscarriage of justice, and the other under section 15 of the present Act which permits confessions recorded by a police officer to be taken into consideration, and in the absence of guidlines in the Act as to under what circumstances Section 15 can be pressed into service, the provision becomes invalid since it falls within the inhibition of Article 14 of the Constitution of India.
8. As we are of the considered opinion that this writ petition must succeed on the ground of non-compliance with the mandatory requirement of Section 20-A of the Act, it is not necessary to refer to the elaborate arguments advanced by Shri K. G. Kannabhiran on other question.
Section 20-A of the Act reads :
“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 offences under this Act without the previous sanction of the Inspector-General of Police, or as the case may be, the Commissioner of Police.”
9. Interpreting the aforesaid provisions a Division Bench of this Court comprising one of us. (M.N. Road, J.) in K. Balagopal v. Government of A.P. (1994) I Andh LT 479, held :
“Section 20-A of the Act does not prevent the registration or crime for other offence, but it ensures that action is taken under this Act with the prior approval of the district Superintendent of Police, who is fairly a high official in the hierarchy of Police Officers being the head of the District Police force. Therefore, on a fair interpretation of Section 20-A, prior approval would necessarily mean the approval in writing, as it otherwise would not ensure application of mind by a higher Officer other than the Inspector of Police.”
10. The Division Bench, after referring to the decision of the Supreme Court in A. K. Roy v. State of Punjab, , observed :
“…… in view of the language employed under section 20-A of TADA, Act, prior approval is a must. As already pointed out if the a prior approval it would have mentioned in FIR ……….”
…….. The first information report has to be necessarily filed in a court of law in writing. Therefore, to show that the mandatory provision of prior approval in complied with, has necessarily to be shown in writing. It is all the more necessary to accord approval in writing since it is the application of mind on the material available on record and the reasons justifying such an accord are justiciable and open to judicial review by this Court ……”
11. The contention of Shri K. G. Kannabhiran is that the first information report in question was registered without obtaining the prior approval of the Superintendent of Police, in this case the Deputy Commissioner of Police.
12. The memo in HS-5/458/1994 in and by which the Deputy Commissioner of Police, South Zone, Hyderabad, accorded approval bears the date 3-4-1994. The digit ‘3’ is over-written on the digit ‘4’. This overwriting is so conspicuous that there is no dispute about overwriting. It is a fact that the first information report does not refer to the prior approval said to have been accorded by the Deputy Commissioner of Police. So, we have to necessarily scrutinise the record placed before us for the purpose of recording a finding as to whether in fact the approval was accorded prior to the registration of the first information report. Under what circumstances the alteration had to be done was not adverted to in the counter-affidavit filed by the Deputy Commissioner of Police. Shri Ravinder Rao, learned Assistant Government Pleader representing the Advocate-General, in a very forceful argument advanced on this aspect, says that when the memo was typed in original with carbon copy, on the right side top only the month and year were typed – ” -4-1994″ and the space intended to be filled up with the date was left blank. While signing, the Deputy Commissioner of Police inadvertently put the date on the original as ‘4’ and immediately realising the mistake corrected the same as ‘3’. It was the original that was sent to the Court and as the photo-copies were supplied to the accused, the photo-copies show the corrections. The carbon copy of the memo was retained in the file and in that copy the date was correctly put as ‘3’ by the Deputy Commissioner of Police. The learned counsel also says that by verifying the carbon copy of the memo in the file placed before us with the photo copy of the memo supplied to the accused, the correctness of this contention can be decided.
13. In the presence of both the counsel, we have examined the photo-copy of the memo given to the accused and the carbon copy of the memo contained in the file produced before us. We have also taken the assistance of the Court Master – an able and experienced stenographer. Without any difficulty we are able to detect six discrepancies between the two as mentioned below :
------------------------------------------------------------------------ Photo-copy Carbon copy ------------------------------------------------------------------------
"1) On the right side top, Office The space between the date and of the Dy. Commissioner of Police, 'South Zone, Hyderabad' is South Zone, Hyderabad' is typed and half c.m. below that the date is typed. The space between the date and 'South Zone, Hyderabad' is one c.m.
2) On the left side top; "Sub" is typed directly under reference number is typed. the numericals "458" as : Directly below the numericals '1994' the preamble portion NO. HS-5/458/1994. 'Sub' is typed as :
NO. HS-5/458/1994. Sub :-
Sub :-
3) Capital letter 'O' is used Small letter 'o' is used in in "NO" and one space is left "No." and no space is left blank after "458" as : blank after "458" as :
NO. HS-5/458/1994. NO. HS-5/458/1994.
4) The letters "tted" in the word The letters "ermi" in the word "permitted" in the second line of "permitted" in the second the subject matter are directly line of the subject matter below the word "With" appearing are directly below the word in the first line. "With" appearing in the first line. 5) The space between the five The space between the five dots dots at the end and the last at the end and the last line line of the typewritten portion of the typewritten portion is : 4.75 C.ms. is : 2.75 C.ms.
6) The last sentence is, "Copy to Here it appears as : the Asst. Commissioner of Police, Malakpet Division of information Copy to the ....... and necessary action". The second line of this sentence begins with Division for information .... the words "Division for". The word "for" in the second line is directly below the word "Copy" in the first line as :
Copy .......
Division for information .......
------------------------------------------------------------------------
14. Although we have no doubt that both were typed on the same typewriter, the one contained in the file is not the carbon copy of the one filed into Court. It is, therefore, clear that the first information report was not registered after obtaining the prior approval of the Deputy Commissioner of Police. If really such an approval had been obtained the same would have been mentioned in the first information report. Even assuming that due to an accidental slip the first information report has not mentioned about the sanctioning of prior approval, the evidence placed before us does not lead to the inference that after obtaining the prior approval the first information report was registered.
15. As the first information report was registered without the prior approval of the Superintendent of Police, the mandatory requirement of Section 20-A was breached. The writ petition is, therefore, allowed. The petitioner is discharged of the accusations relatable to the provisions of the Act. The designated Court viz., the Metropolitan Sessions Judge, Hyderabad, is directed to transfer the case under section 18 of the Act to a competent criminal court for trial and disposal in accordance with law.
16. Petition allowed.