JUDGMENT
V.V. Kamat, J.
1. The petitioner – Surendra Singh has presented this petition under section 482 of Criminal Procedure Code, 1973 under inherent powers contending that the provisions of the Terrorists and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as “the TADA Act”) are not applicable to the acts constituted and alleged against him on the basis of F.I.R. dated April 17, 1992 – for offence under section 302 Indian Penal Code registered as C.R. No. I-122 of 1992 at the Vazirabad Police Station and consequently for quashing the proceedings of Special Case No. 15 of 1992 of the Designated Court (Special Judge, Nanded) and to direct continuance thereof under the normal Criminal Law, together with a prayer for bail by confirming the Order dated June 20, 1992 granting bail, passed by the learned Additional Sessions Judge, Nanded in Misc. Criminal Application No. 352 of 1992. In this the petitioner also, as a sequeiter, challenges the order dated September 19, 1992, below Exhibit 7 in Special Case No. 15 of 1992 of the learned Special Judge, Nanded, rejecting his application dated September 2, 1992 praying for bail.
2. Factual Matrix :
(A) On the basis of information at the Vazirabad Police Station lodged by Sardar Charansingh that his son Dilawarsingh was found wounded with Revolver injuries in front of the hospital of Dr. Nanikar and Manik Lodge alleging that he was killed by the petitioner-Surendra Singh at about 11.30 P.M. at night on (Friday), April 17, 1992 C.R. No. I-122 of 1992 was registered and in pursuance thereof the petitioner was on April 18, 1992 from his house under arrest panchanama and the house search.
(B) Charansingh was not present at the spot. He has landed property and a shopping complex-Huzurasingh Complex – infront of Multipurpose High School Vazirabad area, Nanded, having 20 shops. One shop is in occupation and possession of the petitioner where he runs a shop in the name and style of `Dashmesh Jewellers’. Four months prior, the petitioner asked for one more shop for his son-in-law-Harnamsingh and it was given on rent of Rs. 1100/- per month.
(C) The son-in-law-Harnamsingh, two months before, started telling people and circulating that he had purchased the property for Rs. 5,00,000/- from Charansingh. The deceased Dilawarsingh-the son-on knowing about this circulation asked his father Charansingh about it and he was convinced that the property was not sold. Thereafter, deceased Dilawarsing met the son-in-law Harnamsingh and questioned him for circulating false news of the transaction of sale and ultimately asked him to vacate the premises. At this time, Harnamsingh threatened deceased Dilawarsing with murder.
(D) The petitioner-Surendra Singh met Charansingh – informant and told him that his son was asking to vacate the property and creating unnecessary enmity and requested him to tell his son to pacify himself.
(E) On April 17, 1992, Charansingh took his Tractor for fueling at Petrol Pump near Railway Station, when deceased Dilawarsingh was in the house. While returning from fueling, Charansingh noticed the Bullet Motor Cycle of his son Dilawarsingh lying on the road and Naransing Chowkidar was there. On enquiry Charansingh was told that deceased had been to Mahavir Chowk with a Hindu friend. The driver of the Tractor – one Saleem and Charansingh proceeded towards Mahavir Chowk when one Minhajus Hasan came running to tell them that Dilawarsingh was lying in front of Dr. Mannikar’s Hospital. Reaching there they fould Dilawarsing lying there with bleeding injuries and on inquiry Dilawarsingh in a faint voice told them that he was shot by revolver by the petitioner-Surendra Singh at about 11.30 P.M.
(F) Dilawarsingh was taken in a rickshaw to G.G.M. Hospital to be declared dead. When Charansing was in the hospital his daughter Tejwankaur, wife Darshankaur and son Tarasingh arrived. The daughter Tejwankaur and Minhajul Hasan left for the police station and on the way met the petitioner – Surendra Singh – and they were threatened by him that he had killed Dilawarsingh and if any action is taken they too would be killed. Hence, instead of going to the police station, they returned to the Hospital and informed this of Charansingh. Charansingh himself went to the Vazirabad Police Station and lodged information at 0.15 hrs. and crime was registered. The petitioner was arrested from his house, with a Revolver-with 6 cartridges, a Belt of Cartridges having 3 live Cartridges. From the house, a 12 – Bore Rifle was seized.
3. The Police Station obtained P.C. Remand till May 12, 1992 and the in-charge C.J.M., Nanded granted M.C. Remand by the order dated 12-5-1992 (page 33 of the petition) finding no justification for police custody and also prima facie observing that application of TADA Act does not appear justifiable.
4. The petitioner then, on May 15, 1992, filed Bail Application – Misc. Cri. Application No. 362 of 1992 to the Court of Sessions, Nanded and on hearing his counsel and Additional Public Prosecutor, the learned Additional Sessions Judge, Nanded, by the order dated 20-6-1992 granted Bail to the petitioner with conditions, holding on perusal of the record that there are no reasonable grounds to hold the petitioner guilty of the crime alleged.
5. Thereafter, an application dated June 29, 1992 (Ex.C to the petition) was submitted by the Public Prosecutor, Nanded, on behalf of the State (Ex.16 – continuation) stating therein that the Investigating Officer submitted an Application to the Court of the Chief Judicial Magistrate, Nanded, for permission to add charge under sections 3 and 4 of the TADA Act which was granted by the 3rd J.M.F.C., Nanded who was in-charge Chief Judicial Magistrate and in pursuance thereof in investigation the collected material disclosed offences under the TADA Act and therefore, prayed for cancellation of the Bail Order granted earlier. It was contended that the Designated Court alone is competent to grant bail and, therefore, the Bail order is without jurisdiction and also contending that earlier Bail Order cannot subsist in law.
6. The learned Additional Sessions Judge, Nanded, heard parties on notice. The learned Judge by a detailed Order dated July 7, 1992 suspended the Bail Order till the decision of the Designated Court about the application of the TADA Act, to the Crime in question, and observed that the fate of the earlier Bail Order shall depend on the said order of the Designated Court, and in the event of the decision of the Designated Court that the provisions of the TADA Act are not applicable to the Crime in question, ordered that the Bail Order shall be acted upon.
7. It is in these circumstances that the petitioner – Surendra Singh filed Application (Exh. 7) dated 2-9-1992 before the Designated Court (Sessions Judge, Nanded) for Bail contending that the provisions of TADA Act are not at all applicable and that the petitioner is in custody from April 18, 1992. It is submitted in the application that the petitioner is a businessman having a shop near Nagina Ghat, Nanded and a Jewellery shop near the Multipurpose High School, Nanded and a family man.
8. The Designated Court (Sessions Judge, Nanded), the Special Judge, by the impugned order dated September 29, 1992 rejected the said application.
9. The present petition was filed in this Court on November 18, 1992 and this Court after hearing the Public Prosecutor granted rule returnable on 4-12-1992. The petition was adjourned twice before the earlier Bench and twice before this Bench. There is no return filed and inspite of accommodation, Shri Bajaj, A.P.P. was not able to get instructions and record from the Investigating Agency, leaving us with no alternative other than to proceed with the petition as it is an admitted position that the petitioner – Surendra Singh is in custody till this day right from April 18, 1992 when he was arrested in C.R. No. I-122 of 1992 by the Vazirabad Police Station.
10. The question that crop up for consideration and decision, on submissions and facts uncontroverted are :
(A) Whether the provisions of the TADA Act are applicable to the Crime in question?
(B) Whether the Investigating Agency acted legally and/or bona fide in obtaining permission to add to the charge the provisions of the TADA by making an application to the I/c Chief Judicial Magistrate, who was 3rd Judicial Magistrate (F.C.), Nanded?
(C) Whether the order dated 20-6-1992 of the learned Additional Sessions Judge, Nanded – below Ex. 1 in Misc.Cr. Application No. 352 of 1992 deserves to be restored?
(D) Whether the proceedings of C.R. No.I-122 of 1992 are required to be redirected to the Ordinary Criminal Court from the Designated Court (the Special Judge, Nanded)?
11. The present proceeding constitutes acts resulting into the death of Dilawarsingh on April 17, 1992 with revolver bullets, as alleged, in pursuance of which he was found lying at the place in front of the Hospital of Dr. Nanikar and Manik lodge. The reason as found from the record is the dispute between Harnamsingh – son-in-law of the petitioner and deceased Dilawarsingh – son of Charansingh – about vacating a shop premises from Huzursing complex own by the informant – Charansingh and alleged threates given in connection thereto. From these facts leading to the registration of Crime, the provisions of the TADA Act are beyond comprehension. It is a private quarrel over private dispute relating to rented premises. In the impugned order (Para 16), the learned Judge also has observed, “No doubt FIR does not disclose offence under the TADA Act”, but the learned Judge has attempted to connect the petitioner that he has connection with the activities of the terrorists. It is more convenient to quote the observations:
“Para No. 2 of the complaint filed by the father of deceased Dilawarasingh definitely discloses activities of the terrorists with whom the petitioner is connected. Terrorists from Punjab are having thick relations with the petitioner. Even prior to the offence, the petitioner had gone to Punjab. This fact can be fortified by the recitals in para No. 4 of the F.I.R. So, at this stage, we have to see, at the relevant time how the petitioner was connected with the activities and movements of the terrorists.
(1) One Neharsingh, who is one of the well known terrorists is indulging in such activities in Punjab and at Nanded.
(2) One Butasingh was also connected with such activities, at Nanded.
(3) The petitioner Surendrasingh has allotted one hotel at Bhokar Phata to Butasingh and that place has become a centre of terrorists to commit disruptive activities.
(4) So far as the activities of the terrorists are concerned, the petitioner has, by alloting the Hotel at Bhokar Phata to terrorists has facilitated the activities of terrorists.”
12. It is plain that the Act alleged in the Crime have to be covered by the provisions of section 3 or section 4 of the TADA Act. The contents referred to and relied upon in the impugned order have no connection whatsoever with his acts alleged in the Crime. It is also pertinent to note that even the Judicial Magistrate (F.C.), Nanded who granted M.C. on 12-5-1992 has observed prima facie that the TADA Act is not applicable, not to speak of the reasoning to that effect of the learned Additional Sessions Judge, Nanded in his two orders dated 20-6-1992 and 7-7-1992. The learned Special Judge, Nanded has committed an error in ignoring this basic aspect of criminal liability that the acts alleged alone constitute crime and the acts alleged in this proceedings cannot be termed as “Terorist Acts – section 3” or “Disruptive Activities – section 4” of the TADA Act.
13. The petitioner was arrested on April 18, 1992. The learned Additional Sessions Judge, Nanded, in Misc. Criminal Application No. 352 of 1992 granted bail on June 22, 1992, which was stayed on July 7, 1992 observing prima facie that the provisions of the TADA Act are not applicable and yet thereafter in the impugned order dated September 29, 1992, the learned Special Judge, Nanded, had no material, except para 2 of the F.I.R. only to consider whether the provisions of the TADA Act are applicable. This is the position even after 6 months of the date of registration of the Crime. The way adopted by the Investigating Agency by presenting an application to the I/c C.J.M. – III Judicial Magistrate (F.C.), Nanded, cannot be stamped as bona fide on the basis of this factual position on any count.
14. The TADA Act is an extreme measure to be resorted to when the Investigating Agency cannot tackle the situation under the ordinary Penal law and the Act is intended to combat the growing menace of terrorism, as a drastic measure, not ordinarily to be resorted to unless failure of law machinery under the General law is experienced. Usmanbhai v. State of Gujrat, . This Court in exercise of inherent powers and writ jurisdiction has ample powers in the event of unjustifiable application by the Investigating Agency the provisions of TADA Act when the acts allegedly show that the offence is purely under the ordinary penal law, Ayub Khan v. State of Gujrat, 1991 Cr.L.J. 1085.
15. The Designated Court is constituted under section 9 of the Act and its jurisdiction is circumscribed by sections 11 and 12 of the said Act and it is not competent for any local Court to exercise any jurisdiction in respect of or by any offence under the Act. This position relating to exclusion of jurisdiction of the local Court is amply made clear by the provisions of section 11 of the TADA Act. It is clear that when investigation is done by the Agency under the ordinary Penal law, the subsequent addition of any provisions of the TADA Act is not permissible for the ordinary Criminal Court and such an order has to be obtained by the Investigating Agency not from the Ordinary Criminal Court, just as in this case obtained from I/c C.J.M., Nanded – 3rd J.M.F.C., Nanded, but from the Designated Court alone. In this regard, we approve and accept the decision of the Gauhatti High Court, Sampatmal v. State of Asam, 1992 Cr.L.J. 919. It is the Designated Court that is to decide the question of application of the provisions of the TADA Act, and, if the acts alleged do not make out application of the provisions of the TADA Act, the Designated Court has to transfer the proceeding to the Court having jurisdiction, under the provisions of Cr.P.C. 1973, which has to be done promptly. This Court acting under either inherent powers or writ jurisdiction has the same duty in law when the proceedings are brought before it seeking reliefs against the Designated Court’s orders when impugned.
16. It is in this situation when the proceeding is brought before us that we hold (1) that the provisions of the TADA Act are not applicable to the crime in question, (2) that the Investigation Agency both illegally and with oblique attitude to continue custody of the petitioner obtained orders from the Court of I/c C.J.M. – 3rd J.M.F.C. Nanded, which is more than eloquent from their attitude that even though the petition is pending in this Court from November 19, 1992 on grant of rule, not only that no return is filed but none assisted or instructed Shri Bajaj, the learned A.P.P. leaving this Court to proceed because such decision if delayed hangs like a Democles’ Sword of uncertainity with continued unjustified custody of the petitioner, who is in custody from April 18, 1992.
17. On the question of Bail, we have seen the order dated 22-7-1992 of the learned Additional Sessions Judge, Nanded in Misc. Cr. Application No. 352 of 1992 holding that there are no reasonable ground to hold that the petitioner would be guilty of the offence of murder. The learned Judge on facts is right when held that the alleged dying declaration is doubtful in the face of injuries received. The learned Judge is also right in holding that the alleged Extra-judicial confession to the daughter Tejwankaur of the informant Charansing also appears to be managed. The facts and material on record, in our judgment, makes out a case for restoration of the said order and a direction to the learned Special Judge, Nanded to transfer the proceeding to the appropriate Court under the ordinary Penal law, after acting upon the Bail order dated 22-6-1992 of the learned Additional Sessions Judge, Nanded.
18. For the above reasons, the following order is passed:
(1) Petition stands allowed with no order as to costs.
(2) The proceedings of Special Case No. 15 of 1992 of the Court of the learned Special Judge, Nanded are quashed and set aside including the impugned order dated 29-9-1992 rejecting bail.
(3) The order dated 20-6-1992 of the learned Additional Sessions Judge, Nanded – Below Exh. 1 in Criminal Misc. Application No. 352 of 1992 is confirmed and restored and the petitioner is directed forth-with to be released on bail in terms of and on conditions of the said Order, without any further delay.
(4) Equally well the order dated July 7, 1992 of the learned Additional Sessions Judge, Nanded staying and suspending earlier order dated 20-6-1992 is also quashed and set aside as a consequence.
(5) The learned Special Judge, Nanded (Designated Court) is directed forthwith and without any delay to transfer the proceeding registered by him as Speical Case No. 15 of 1992 in his Court to the appropriate Court under the Ordinary Penal Law as per the provisions of Criminal Procedure Code, 1973.
Order accordingly.