REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1018 OF 2007
Ganesh Gogoi .....Appellant(s)
- Versus -
State of Assam ....Respondent(s)
J U D G M E N T
GANGULY, J.
1. This appeal has been filed under Section
19(1) of the Terrorist and Disruptive
Activities (Prevention) Act, 1987 (hereinafter
referred to as the `TADA(P) Act’) impugning
the judgment dated 11.7.2007 passed by the
learned Designated Court, Assam, Guwahati in
Sessions Case No. 68 of 2001 whereby the
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appellant has been convicted by the learned
Judge of the Designated Court under Section
3(2)(i) TADA(P) Act and was sentenced to
undergo imprisonment for life and to pay a
fine of Rs.2000/- in default further
imprisonment for six months.
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.
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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
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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
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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:
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“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).
13. From paragraph 3 of the impugned judgment, it
appears that the prosecution examined ten
witnesses.
14. P.W.1 – Dharam Chand Agarwalla is the brother
of the deceased. He is not an eye witness. He
was informed by his mother about the missing
of his elder brother Dinanath Agarwalla and
his evidence is that he does not know who
kidnapped Dinanath Agarwalla from their house
on the material day and killed him. Therefore,
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the evidence of P.W.1 is that his elder
brother was kidnapped from their house.
15. But the evidence of the prosecution is that
Dinanath Agarwalla was kidnapped from the pan
shop of Narayan Dey (P.W.2).
16. P.W.2- Narayan Dey in his evidence stated that
police took his signatures on a prepared
statement to the effect that the deceased was
killed on the previous day though he had no
knowledge about the killing of Dinanath
Agarwalla. P.W.2 was declared hostile and was
cross-examined by the prosecution. In his
cross-examination also he stuck to his
evidence given in Examination-in-Chief. In
cross-examination he deposed that he did not
state before the I.O. that Dinanath came to
his shop for taking pan and one Maruti car
arrived near his shop and accused persons
while coming out of the car had some
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discussion with Dinanath and he was taken in
the car which was driven towards Madhuting.
17. P.W.3- Sushil Mazumdar was also declared
hostile and he stated in Chief that Police did
not record any statement from him in regard to
the death of the deceased. He was similarly
cross-examined by the Police and in the cross-
examination also he stuck to his original
statement and made it very clear that he did
not see the appellant and the other accused
person kidnapping the deceased from the pan
shop of Narayan Dey.
18. P.W.4- Joyram Das is a police officer. He
deposed that on 17.8.1992 he was working as an
Office in-charge at Borubi Police Station. He
deposed that he took over the investigation
and arrested one of the accused persons and
from his interrogation came to know that on
the alleged date of occurrence Dinanath
Agarwalla was kidnapped by the present
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appellant. In cross-examination P.W.4
admitted that he did not send Premodhar Gogoi
to any Magistrate for recording his statement.
It appears from the so called statement of
Premodhar Gogoi that the same is not at all
admissible having been made before a police
officer while in custody and in the course of
alleged interrogation. Therefore, it has been
rightly contended by the learned counsel for
the appellant that the deposition of P.W.4 is
not admissible in evidence.
19. P.W.5 is one Bibhusan Gogoi. He had merely
seen the dead body of victim fastened by rope
and he was informed by another person that the
name of the deceased is Dinanath Agarwalla.
He is not a material witness at all. He
categorically stated that he did not know who
had killed the Dinanath, the victim.
20. P.W.6-Suresh Kr. Agarwalla is also not a
material witness. He merely identified the
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dead body of Dinanath and merely deposed that
the hands and feet of dead body were tied with
a rope and the rope was seized by the police
and he signed the said document of seizure.
21. P.W.7-Prabhat Gogoi is another police officer.
He initially took up the investigation and he
recorded the statements of witnesses Dharam
Chand Agarwalla and Sushil Mazumdar but they
have not been examined in Court. He claimed
to have filed the FIR. In cross-examination
P.W.7 deposed that in the FIR he has not
specifically mentioned the involvement of the
appellant in the aforesaid incident. He did
not mention anything about the statement of
witness Sushil Mazumdar. The FIR was recorded
by the P.W.7 in this case “during
investigation”. However, in the course of his
evidence P.W.7 never stated anything about the
appellant being a member of the United
Liberation Front of Assam. In the FIR it has
clearly been stated “that investigation has
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already been taken up by me. The certified
copy of G.D.E. No.19 is enclosed herewith.”
22. It is clear from the aforesaid statement,
investigation in the case had already
commenced and once investigation commences the
FIR is hit by Section 162 Cr.P.C. and no value
can be attached to the same.
23. P.W.8- Satyaraj Hazarika merely deposed that
he submitted the prayer for accord of
necessary prosecution sanction to the then
D.G.P of Assam and he also filed certain other
documents. He is not a material witness at
all.
24. P.W.9 is Dr. N. Sonowal, who conducted
postmortem on the dead body of the victim.
25. P.W.10- Bipulananda Choudhury is another
police officer, who obtained sanction from
D.G.P Assam and submitted the charge sheet
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against the accused persons. He is also not a
material witness.
26. From the above discussions, this Court finds
that there is no evidence to connect the
appellant with the alleged incident of killing
of the victim.
27. Apart from that this Court finds that in
Section 313 Cr.P.C. examination of the
accused-appellant, the Court has put a
question which is totally unfair. Three
questions were put to the appellant. The
second question is as follows:-
“Q. No.2 The witnesses deposed that you are a
member of ULFA?”
28. It does not appear that any witness has
deposed that the appellant is a member of
ULFA. Therefore, it is a very unfair
question. This Court has allegedly convicted
the appellant under Section 3(2)(i) but the
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ingredients of the Section 3(2)(i) were not
been put to him. Therefore, there has not
been a fair examination under Section 313 of
the Cr.P.C. at all. The provisions of Section
313 are for the benefit of the accused and are
there to give the accused an opportunity to
explain the “circumstances appearing in the
evidence against him”. In Basavaraj R. Patil
& others Vs. State of Karnataka & others –
(2000) 8 SCC 740, this Court held that those
provisions are not meant to nail the accused
to his disadvantage but are meant for his
benefit. These provisions are based on the
salutary principles of natural justice and the
maxim `audi alteram partem’ has been enshrined
in them. Therefore, the examination under
Section 313 has to be of utmost fairness. But
that has not been done here. This is also a
factor vitiating the trial.
29. It appears that in the instant case the charge
which was framed by the Court against the
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appellant was under Section 3(5) of the said
Act. But such a charge could not have been
framed against him by the Court in as much as
on the alleged date of occurrence, i.e. in
September 1991, Section 3(5) of the Act was
not brought on the statute. The framing of
the charge was thus inherently defective.
However the appellant has been convicted only
under Section 3(2)(i). Section 3(2)(i) reads
as follows:-
“3(2) Whoever commits a terrorist act,
shall, –
(i) If such act has resulted in the death of
any person, be punishable with death or
imprisonment for life and shall also be
liable to fine.”
30. On perusal of the provision of Section
3(2)(i), it is clear that Section 3(2)(i) has
to be read with Section 3(1). Section 3(1) is
set out herein below:-
“3. Punishment for terrorist acts. – (1)
Whoever with intent to overawe the Government
as by law established or to strike terror in
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the people or any section of the people or to
alienate any section of the people or to
adversely affect the harmony amongst different
sections of the people does any act or thing by
using bombs, dynamite or other explosive
substances or inflammable substances or fire-
arms or other lethal weapons or poisons or
noxious gases or other chemicals or by any
other substances (whether biological or
otherwise) of a hazardous nature in such a
manner as to cause, or as is likely to cause,
death of, or injuries to, any person or persons
or loss of, or damage to, or destruction of,
property or disruption of any supplies or
services essential to the life of the
community, or detains any person and threatens
to kill or injure such person in order to
compel the Government or any other person to do
or abstain from doing any act, commits a
terrorist act.”
31. The provision of Section 3(1) has been
construed by this Court in several cases and
reference in this connection may be made to
the decision of Hitendra Vishnu Thakur and
others Vs. State of Maharashtra and others –
(1994) 4 SCC 602, wherein learned judges
explained the ambit of a terrorist act which
has not been defined in detail under TADA(P)
Act. Sub-section (h) of Section 2 of the Act
defines `terrorist act’ to mean the same thing
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as assigned to it in sub-section (i) of
Section 3.
32. Section 3(1) of the said Act is therefore very
vital for understanding the true meaning and
purport of terrorist acts. In paragraph 5 of
Hitendra Vishnu Thakur (supra), at page 617 of
the report, Dr. Justice A.S. Anand (as His
Lordship then was) analysed Section 3 as
follows:-
“5. Section 3 when analysed would show that
whoever with intent (i) to overawe the
Government as by law established; or (ii) to
strike terror in the people or any section of
the people; or (iii) to alienate any section of
the people; or (iv) to adversely affect the
harmony amongst different sections of the
people, does any act or things by using (a)
bombs or dynamite, or (b) other explosive
substances, or (c) inflammable substances, or
(d) firearms, or (e) other lethal weapons, or
(f) poisons or noxious gases or other
chemicals, or (g) any other substances (whether
biological or otherwise) of a hazardous nature
in such a manner as to cause or as is likely
to cause (i) death, or (ii) injuries to any
person or persons, (iii) loss of or damage to
or destruction of property, or (iv) disruption
of any supplies or services essential to the
life of the community, or (v) detains any
person and threatens to kill or injure such
person in order to compel the Government or any
other person to do or abstain from doing any
act, commits a `terrorist act’ punishable under
Section 3 of TADA.”
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33. It is clear from the perusal of Section 3 and
its interpretation in Hitendra Vishnu Thakur
(supra) that the requisite intention is the
sine qua non of terrorist activity. That
intention is totally missing in this case. It
is not there in the charge and it has also not
come in the evidence. Therefore, both the
framing of charges against the appellant under
Section 3(5) and his conviction under Section
3(2)(i) of the said Act are totally bad in
law.
34. In Hitendra Vishnu Thakur (supra) the Court
has made it clear that in many cases criminal
activities constituting the terrorist act may
also be an offence under the ordinary penal
law. Therefore before framing a charge under
the stringent provisions of TADA(P) Act the
Court has to be very careful. In view of
seriousness of the offence alleged under the
stringent provisions of the said Act, this
Court in Hitendra Vishnu Thakur (supra)
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(paragraph 14 at page 623 of the report),
explained the Court’s duty in very explicit
terms and which I quote:-
“14. …An onerous duty is therefore cast
on the Designated Courts to take extra
care to scrutinise the material on the
record and apply their mind to the
evidence and documents available with the
investigating agency before charge-
sheeting an accused for an offence under
TADA. The stringent provisions of the Act
coupled with the enhanced punishment
prescribed for the offences under the Act
make the task of the Designated Court even
more onerous, because the graver the
offence, greater should be the care taken
to see that the offence must strictly fall
within the four corners of the Act before
a charge is framed against an accused
person. Where the Designated Court without
as much as even finding a prima facie case
on the basis of the material on the
record, proceeds to charge-sheet an
accused under any of the provisions of
TADA, merely on the statement of the
investigating agency, it acts merely as a
post office of the investigating agency
and does more harm to meet the challenge
arising out of the `terrorist’ activities
rather than deterring terrorist
activities. The remedy in such cases would
be worse than the disease itself and the
charge against the State of misusing the
provisions of TADA would gain
acceptability, which would be bad both for
the criminal and the society. Therefore,
it is the obligation of the investigating
agency to satisfy the Designated Court
from the material collected by it during
the investigation, and not merely by the
opinion formed by the investigating
agency, that the activity of the
`terrorist’ falls strictly within the
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parameters of the provisions of TADA
before seeking to charge-sheet an accused
under TADA. The Designated Court must
record its satisfaction about the
existence of a prima facie case on the
basis of the material on the record before
it proceeds to frame a charge-sheet
against an accused for offences covered by
TADA. Even after an accused has been
charge-sheeted for an offence under TADA
and the prosecution leads evidence in the
case, it is an obligation of the
Designated Court to take extra care to
examine the evidence with a view to find
out whether the provisions of the Act
apply or not. The Designated Court is,
therefore, expected to carefully examine
the evidence and after analysing the same
come to a firm conclusion that the
evidence led by the prosecution has
established that the case of the accused
falls strictly within the four corners of
the Act before recording a conviction
against an accused under TADA.”
35. In the instant case the Designated Court has
failed in its duty both in the matter of
application of mind to the materials on record
at the stage of framing of charge and also at
the time of convicting the appellant.
36. This Court is, therefore, of the clear opinion
that in the facts of the case no charge
against the accused under the said Act could
be framed, consequently he cannot be convicted
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under the provisions of the said Act. In any
way in the instant case as discussed above,
there is no evidence to connect the appellant
with the alleged incident. Therefore, the
judgment and order of conviction is totally
unsustainable in law and is set aside. The
appeal succeeds and the appellant be set at
liberty forthwith if he is not wanted in
connection with any other case.
…………………..J.
(DALVEER BHANDARI)
…………………..J.
New Delhi (ASOK KUMAR GANGULY)
July 7, 2009
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