REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(s). 2307 OF 2009
RANGKU DUTTA @ RANJAN KUMAR DUTTA Appellant (s)
VERSUS
STATE OF ASSAM Respondent(s)
J U D G M E N T
Ganguly, J.
Heard learned counsel for the parties.
This is a statutory appeal under Section 19 of Terrorist
and Disruptive Activities (Prevention) Act, 1987 (hereinafter
referred to as “the said Act”) impugning an order dated
10.9.2009 passed by the Designated Court TADA. The learned
counsel appearing for the sole appellant has impugned the
judgment of the designated court (TADA) on various grounds but
at the time of arguments, he made emphasis on a particular
ground, namely, that in the instant case, the FIR has been
recorded in clear violation of the provisions contained under
Section 20(A)(1) of the said Act, as a result whereof, the
entire proceeding subsequent thereto has been vitiated and this
has also vitiated the judgment and order of the designated
court.
The material facts of the facts are these.
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That FIR was lodged on 6.11.1993 by one Ajit Kumar Sarma,
Office-in-Charge of Bihpuria Police Station against several
persons including the appellant. Of the four accused persons,
no charges were framed against Moni Pathak. In so far as Bhaben
Gogoi @ Bikram was concerned, he was acquitted by the designated
court and Indreswar Hazarika @ Babul Handique died during the
pendency of the proceedings before the designated court. Only
Rangku Dutta @ Ranjan Kumar Dutta was convicted and is the
appellant before us.
The FIR which has been lodged on 6.11.1993 runs as
follows:-
“I beg to report that on 5.11.93 at 2150 hrs.
while SI AQM Zahingir I/C Dholpur O.P. along with the
PSO Hav. Loknath Konwar and other police personnel
were informed law and order duty in connection with
Debraj Theatre show at Dhalpur circle in open place by
the side of Hill, some ULFA extremist fired at SI AQM
Zahingir and PSO Hav. Loknath under simultaneously
from a close range behind them and as a result both of
them succumbed to injuries.
Earlier of this incident on 5.10.93 an
encounter took place between the ULFA with Dhalpur
O.P. Place and under the leadership of SI AQM Zahangir
I/C Dhalpur O.P. where Lakhimpur Dist. ULFA commander
Jogen Gogoi killed and since them the banned ULFA
activists associates of Jogen Gogoi were planning with
criminals conspiracy to liquidate SI AQM Zahingir.
On 5.11.93 evening the said ULFA activists with
the help of Sri ranku Dutta got identified SI AQM
Zahingir and then ULFA extremist namely (1) Sri
Indreswar Hazarika @ Babul Handique (2) Sri Nobel
Gogoi @ Bikram under the leadership of Sri Moni Pathak
@ Debo Pathak taking advantage of darkness attacks
simultaneously with fire arms and killed SI AQM
Zahingir and PSO Hav. Loknath Knowar.
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So I request to register a case under Section
120(B)/302 IPC R/W 3/4/5 TADA(P) Act, 1987 against the
(illegible) ULFA activist and four others associates,
I have already taken up the investigation of the case.”
On the basis of the FIR, a case being Bihpuria Police
Station Case No. 497 of 1993, was initiated under Section
120B/302 IPC read with Section 3 / 4 and 5 TADA (P) Act and the
designated court vide order dated 31st October, 2002 framed
charges against the appellant, inter alia, under Section
120(B)/302 of the Indian Penal Code and Section 3(2)(1) of the
said Act. Thereafter, the designated court by impugned judgment
dated 10th September, 2009 passed in TADA Sessions Case No. 116
of 2000 found the appellant guilty of offences punishable under
Section 120B/302 IPC read with Section 3(2)(1) of the said Act
and sentenced him to undergo imprisonment for life and to pay a
fine of Rs. 2000/-, in default further imprisonment for two
months.
Learned counsel appearing for the appellant urged that in
accordance with the provisions contained under Section 20(A)(1)
of the said Act, no information about the commission of any
offence under the said Act shall be recorded by the Police
without prior approval of the District Superintendent of Police.
Learned Counsel submitted that the said provision under
Section 20(A)(1) was incorporated by way of an amendment vide
Section 9 of Act 43 of 1993. The said amendment came into
effect on 23.5.1993 and the FIR was recorded on 6.11.1993.
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Therefore, at the time when the FIR was recorded, the provision
of Section 20(A)(1) was clearly attracted.
It will be in the fitness of things that to appreciate
the points urged by the appellant, Section 20(A) is set out
below:
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,
Commissioner of Police.
Relying on the said section, the learned Counsel for the
appellant submitted that from the evidence of PW 15 Ajit Kumar
Sarma who recorded the FIR, it is clear that he did not take the
approval of the Superintendent of Police before recording the
FIR. In his cross-examination, PW 15 clearly stated “I did not
obtain the approval from the concerned SP for registering the
case.” From the evidence of PW 11, who is one Sanjit Sekhar
Roy, learned counsel stated that the said PW 11 was working on
22.6.2000 as DSP Headquarter at North Lakhimpur. In his cross-
examination, he stated that the occurrence took place on
6.11.1993 and prior to the filing of the Ejahar which is the
FIR, the written approval of the SP concerned was not obtained
and in the Ejahar itself, There is no approval of SP, North
Lakhimpur.
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We have looked into the original FIR Exhibit P-12. In
the original FIR, the following endorsement which has been made
by Ajit Kumar Sarma is quoted below:-
“Received and registered Bihpuria PS Case
no. 0497/93 u/s 120(B)/302 I.P.C. R/W 3/4/5 TADA (P)
Act, 1987 with the approval of SP(I) NL.”
It is an admitted position in this case that even though
the aforesaid endorsement has been made in the FIR, the SP(I),
North Lakhimpur, whose approval is alleged to have been taken by
PW 15 Ajit Kumar Sarma has not been examined by the prosecution.
Apart from that, in the substantive evidence before the Court,
PW 15, Ajit Kumar Sarma has categorically stated that he has not
obtained approval of SP before registering the case. He rather
said that he registered the case and himself took up the
investigation of the case, prepared the seizure list and
recorded the statement of witnesses and at that point of time,
the rank of Ajit Kumar Sarma was that of SI of police.
We have already referred to the evidence of PW 11 who has
also deposed that written approval of SP was not obtained.
In the background of these facts, the question is whether
in this case the mandatory requirement of Section 20(A)(1) was
complied with. Attention of this Court has been drawn to
certain decisions of the Court where from it appears that there
was a controversy and divergence of judicial view as to whether
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written approval or oral approval is required. The said
divergence of judicial view has been set at rest by the judgment
of a three-Judge Bench of this Court in State of A.P. Vs. A.
Satyanarayana and Others 2001(10) SCC 597.
A Three-Judge Bench of this Court setting out the
controversy in this matter ultimately came to hold as follows in
paragraph 8:-
“Having applied our mind to the aforesaid two
judgments of this Court, we are in approval of the
latter judgment and we hold that it is not the
requirement under Section 20-A(1) to have the priorapproval only in writing. Prior approval is a
condition precedent for registering a case, but it may
be either in writing or oral also, as has been
observed by this Court in Kalpanath Rai case 1997(8)
SCC 732 and, therefore, in the case in hand, the
learned Designated Judge was wholly in error in
refusing to register the case under Sections 4 and 5
of TADA. We, therefore, set aside the impugned order
of the learned Designated Judge and direct that the
matter should be proceeded with in accordance with
law.”
It is, therefore, clear that approval has to be taken,
even if it is an oral approval. Attention of this Court has
also been drawn to a decision rendered in Hitendra Vishnu Thakur
and Others Vs. State of Maharashtra and Others 1994(4)SCC 602 as
to the requirement of the provision of Section 20(A)(1). The
learned Judges of this Court after considering various
provisions of the said Act held that the requirement of Section
20(A)(1) of TADA was introduced by way of an amendment with a
view to prevent abuse of the provisions of TADA. We, therefore,
reiterate the principles laid down by this Court in paragraph 12
by Justice Dr. A.S. Anand(as His Lordship then was), which is
set out below:-
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“Of late, we have come across some cases where
the Designated Courts have charge-sheeted and/or
convicted an accused person under TADA even though
there is not even an iota of evidence from which it
could be inferred, even prima facie, let alone
conclusively, that the crime was committed with the
intention as contemplated by the provisions of TADA,
merely on the statement of the investigating agency to
the effect that the consequence of the criminal act
resulted in causing panic or terror in the society or
in a section thereof. Such orders result in the
misuse of TADA Parliament, through Section 20-A ofTADA has clearly manifested its intention to treat the
offences under TADA seriously inasmuch as under
Section 20-A(1), notwithstanding anything contained in
the Code of Criminal Procedure, no information about
the commission of an offence under TADA shall even be
recorded without the prior approval of the District
Superintendent of Police and under Section 20-A(2), no
court shall take congisance of any offence under TADA
without the previous sanction of the authorities
prescribed therein. Section 20-A was thus introduced
in the Act with a view to prevent the abuse of the
provisions of TADA.”
Learned counsel appearing on behalf of the State wanted
to urge that in the instant case, the requirement of Section
20(A)(1) has been complied with and in support of her
submissions, the learned counsel has drawn the attention of this
Court to the evidence of PW 4 and PW 6. In his evidence, PW 4
Nitul Gogoi has said that on 21.10.94 he was working as D.S.P.
H.Q. at Lakhimpur. On that day, the S.P. Lakhimpur handed over
the CD of this case to him to hold “remaining part of
investigation of the case.”
PW 6 Nirmal Dr. Das also deposed that on 25.9.99, he was
working as Head Quarter DSP at North Lakhimpur. On that day,
S.P. Lakhimpur entrusted the investigation of the case in his
name and accordingly, he got the CD from R.S.I.
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Relying on the aforesaid deposition of PW 4 and PW 6, the
learned counsel urged that in the instant case, the
investigation was conducted by the DSP, therefore, the
requirement of section 20(A)(1) has been complied with. We are
unable to appreciate the aforesaid submission.
It is obvious that Section 20(A)(1) is a mandatory
requirement of law. First, it starts with an overriding clause
and, thereafter, to emphasise its mandatory nature, it uses the
expression “No” after the overriding clause. Whenever the
intent of a statute is mandatory, it is clothed with a negative
command. Reference in this connection can be made to G.P.
Singh’s Principles of Statutory Interpretation, 12th Edition. At
page 404, the learned author has stated:
“As stated by CRAWFORD: “Prohibitive or
negative words can rarely, if ever, be directory. And
this is so even though the statute provides no penalty
for disobedience. As observed by SUBBARAO, J.:
“Negative words are clearly prohibitory and are
ordinarily used as a legislative device to make a
statute imperative”. Section 80 and Section 87-B of
the Code of Civil Procedure, 1908, section 77 of the
Railways Act, 1890; section 15 of the Bombay Rent Act,
1947; section 213 of the Succession Act, 1925; section
5-A of the Prevention of Corruption Act, 1947; section
7 of the Stamp Act, 1899; section 108 of the Companies
Act, 1956; section 20(1) of the Prevention of Food
Adulteration Act, 1954; section 55 of the Wild Life
Protection Act, 1972, the proviso to section 33(2)(b)
of the Industrial Disputes Act, 1947 (as amended in
1956); section 10A of Medical Council Act, 1956 (as
amended in 1993), and similar other provisions have
therefore, been construed as mandatory. A provision
requiring ‘not les than three months’ notice is also
for the same reason mandatory.”
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We are in respectful agreement with the aforesaid
statement of law by the learned author.
So there can be no doubt about the mandatory nature of
the requirement of this Section. Apart from that, since the
said section has been amended in order to prevent the abuse of
the provisions of TADA, this Court while examining the question
of complying with the said provision must examine it strictly.
Going by the aforesaid principles, this Court finds that
no information about the commission of an offence under the said
Act can be recorded by the Police without the prior approval of
the District Superintendent of Police. Therefore, the
requirement of prior approval must be satisfied at the time of
recording the information. If a subsequent investigation is
carried on without a proper recording of the information by the
DSP in terms of Section 20(A)(1), that does not cure the
inherent defect of recording the information without the prior
approval of the District Superintendent of Police. Whether the
Deputy Superintendent of Police is a District Superintendent of
Police or not is a different question which we need not decide
in this case. But one thing is clear that the requirement of
approval must be made at the initial stage of recording the
information. If there is absence of approval at the stage of
recording the information, the same cannot be cured by
subsequent carrying on of the investigation by the DSP.
Reference in this connection is made to the principles laid down
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by Lord Denning speaking for the Judicial Committee of Privy
Council in Benjamin Leonard MacFoy Versus United Africa Co. Ltd.
[1961(3) Weekly Law Reports 1405]. Lord Denning, speaking for
the unanimous Bench, pointed out the effect of an act which is
void so succintly that I better quote him:
“If an act is void, then it is in law a
nullity. It is not only bad, but incurably bad.
There is no need for an order of the court to set it
aside. It is automatically null and void without more
ado, though it is sometimes convenient to have the
court declare it to be so. And every proceeding which
is founded on it is also bad and incurably bad. You
cannot put something on nothing and expect it to stay
there. It will collapse.”
We are in respectful agreement with the aforesaid view.
Therefore, the evidence of PW 4 and PW 6 do not come to
any aid of the State Counsel in the facts of the present case.
We are, however, surprised to find that the Designated
Court in the impugned judgment has come to a finding that there
has been verbal approval from the Superintendent of Police even
after noting that the I.O. In this case (PW 15) admitted that he
did not obtain approval. It is nobody’s case that PW 15 was
confronted with the FIR while he was giving his evidence.
Therefore, the prosecution in this case has failed to bring on
record that verbal approval was obtained. It may be noted that
PW 15 has not been declared hostile.
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Therefore, having regard to the clear evidence of PW 15,
this Court is constrained to hold that even verbal approval of
the concerned authority was not obtained in the case before
recording the information.
Therefore, the entire proceeding right from the
reigstering of the FIR, filing of the charge-sheet and the
subsequent trial is vitiated by a legal infirmity and there is a
total miscarriage of justice in holding the trial, ignoring the
vital requirement of law. We have, therefore, no hesitation in
setting aside the impugned judgment of the Designated Court.
The appeal is, therefore, allowed. The appellant who is
in jail must be set at liberty forthwith, if not required in
connection with any other case.
……………………..J.
(ASOK KUMAR GANGULY)
…………………….J.
(DEEPAK VERMA)
NEW DELHI
MAY 20, 2011