{"id":202308,"date":"1995-08-11T00:00:00","date_gmt":"1995-08-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/anirudhsinhji-vs-the-state-of-gujarat-on-11-august-1995"},"modified":"2016-02-05T18:46:01","modified_gmt":"2016-02-05T13:16:01","slug":"anirudhsinhji-vs-the-state-of-gujarat-on-11-august-1995","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/anirudhsinhji-vs-the-state-of-gujarat-on-11-august-1995","title":{"rendered":"Anirudhsinhji … vs The State Of Gujarat on 11 August, 1995"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Anirudhsinhji … vs The State Of Gujarat on 11 August, 1995<\/div>\n
Equivalent citations: 1995 AIR 2390, \t\t 1995 SCC (5) 302<\/div>\n
Author: H B.L.<\/div>\n
Bench: Hansaria B.L. (J)<\/div>\n
           PETITIONER:\nANIRUDHSINHJI KARANSINHJIJADEJA & ANR.\n\n\tVs.\n\nRESPONDENT:\nTHE STATE OF GUJARAT\n\nDATE OF JUDGMENT11\/08\/1995\n\nBENCH:\nHANSARIA B.L. (J)\nBENCH:\nHANSARIA B.L. (J)\nAHMADI A.M. (CJ)\nSEN, S.C. (J)\n\nCITATION:\n 1995 AIR 2390\t\t  1995 SCC  (5) 302\n JT 1995 (6)   146\t  1995 SCALE  (4)715\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t      J U D G M E N T
\nHANSARIA, J.\n<\/p>\n
     The two  appellants are in jail being accused of having
\ncommitted offences, inter alia under Sections 3 and 5 of the
\nTerrorists and\tDisruptive Activities (Prevention) Act, 1987
\n(for short  ‘the TADA’).  Their prayer is to release them on
\nbail, which  has been  denied by  the Designated  Court.  In
\nsupport of  this plea,\ta large number of points were raised
\nbefore us  in course of arguments. It is not necessary to go
\ninto all  these questions  as, according  to us,  the appeal
\ndeserves  to   be  allowed  on\tthe  sole  ground  of  wrong
\ninvocation of TADA in the case of the appellants.\n<\/p>\n
2. To bring home the above, we may note the prosecution case
\nin short, which is that:\n<\/p>\n
     “……on March  15, 1995 one Jayantilal
\n     Mohanlal Vadodaria who is a son of elder
\n     brother   Mohanlal\t  Kalabhai   of\t  the
\n     complainant,  was\t murdered   by\t some
\n     assailants\t near  Ashapura\t Dam  at  the
\n     distance of  3 K.M. from Gondal town. So
\n     on\t receiving   this  information,\t  the
\n     complainant went to the scene of offence
\n     where  a\tdead  body   of\t his   nephew
\n     Jayantilal was  lying. One Vespa-scooter
\n     of the deceased was also lying there. It
\n     was found\tthat there  were injury marks
\n     by fire  on the  body of  the  deceased.
\n     There was\ta  certridge  of  red  colour
\n     which was used, was lying near the body.
\n     It was  further stated  in the complaint
\n     that deceased  Jayantilal was travelling
\n     on his  scooter for  going to  his\t vadi
\n     from his house at 4.00 p.m. as usual and
\n     he\t was  passing  throught\t the  way  of
\n     Ashapura Dam.  His vadi  is situated  on
\n     the road of Kotda Sangani Village”.\n<\/p><\/blockquote>\n
3.   It has  been alleged  that deceased Jayantilal, aged 32
\nyears, was  a resident of Gondal and was a leading member of
\nthe Patel  community. Previously,  he was  a member  of\t the
\nGondal Nagar  Palika and  also\tDirector  of  Gondal  Nagrik
\nSahakari Bank.\tThe post-mortem\t revealed that\tthe deceased
\nhad received  gun-shot injuries\t and also injuries caused by
\nknives. The murderers had come in a white Ambassador Car No.
\nGIG-375 and  had fired\ttwice at the deceased and had caused
\ninjuries by  sharp weapons.  After killing the deceased, the
\nmurderers absconded. The car was ultimately recovered from a
\nplace within  Jamkandorna Police  Station, and\tall the four
\naccused were arrested there on 16.3.1995 at 2115 hours.\n<\/p>\n
4. The\tfurther allegation  is that  the four persons, after
\ncommitting the murder, went to Anirudhsinh Karansinh Jadeja,
\nSarpanch of  village Mota  Umvada and  a  resident  of\tthat
\nvillage and  sought refuge.  Anirudhsinh was in his field at
\nthat time  (5.30 P.M.) and Digubha Jadeja was present there.
\nAnirudhsinh declined  to provide  shelter but agreed to keep
\nthe weapons.  One country-made\tgun with  cartridges and two
\nknives were  packed in a kundle and Vishubha and Digubha had
\nconcealed the  bundle by  digging a  pit on  the ground of a
\nsmall room  in the  field belonging  to\t Anirudhsinh.  After
\nhiding\tthe  weapons,  Vishubha\t along\twith  other  alleged
\nmurderers  left\t the  field  and  went\taway  by  the  white
\nAmbassador car\tin which  they had come. Police arrested and
\nstarted criminal  proceedings not  only against\t the alleged
\nmurderers but  also againstAnirudhsinh\tJadeja\tand  Digubha
\nJadeja, the appellants herein.\n<\/p>\n
5. Anirudhsinh\t(appellant No.1)  was  produced\t before\t the
\nExecutive Magistrate, Gondal, on 18.3.1995 on the allegation
\nthat one country made gun and cartridges were recovered from
\nhis field  and a  case\twas  registered\t against  him  under
\nSection 25(1)(b)  of the Arms Act bearing Crime Registration
\nNo.28\/95. The allegation against Digubha; appellant was that
\nhe had\tabetted in  secreting the weapon. They were arrested
\nand produced  before the  Executive Magistrate\twho  granted
\nfive days’  remand. On\ta  prayer  made\t on  behalf  of\t the
\nappellants on  23.3.1995, the  Executive Magistrate directed
\nthe police  authorities not  to ill-treat the appellants. On
\n24th March,  1995 the  Executive  Magistrate  sent  all\t the
\naccused persons, including the appellants, to hospital where
\nthey were  kept till  27th March, 1995. Thereafter, an order
\nwas passed on 27th March, 1995 by which all the accused were
\nremanded to  judicial custody.\tOn behalf  of the State, the
\norder  of   the\t Magistrate   refusing\tpolice\t remand\t was
\nchallenged before  the Sessions\t Judge. On  28th March, 1995
\nthe appellants\thad made  an application for bail, which was
\nrejected by  the Designated Court on 18th April, 1995. Hence
\nthis appeal to this Court by special leave.\n<\/p>\n
6. The\tfirst point  to be  decided is about the legality of
\ninvocation of TADA. Its Section 20-A lays down:-\n<\/p>\n
     “Congnizance of offence.\n<\/p><\/blockquote>\n
     20A.      (1)  Notwithstanding  anything
\n     contained in  the Code,  no  information
\n     about the commission of an offence under
\n     this Act shall be recorded by the police
\n     without  the   prior  approval   of  the
\n     District Superintendent of Police.
\n\t  (2) No  court shall take cognizance
\n     of any  offence under  this Act  without
\n     the previous  sanction of the Inspector-
\n     General of\t Police, or  as the  case may
\n     be, the Commissioner of Police”.\n<\/p><\/blockquote>\n
7.     Therefore,   condition  precedent  for  recording  an
\ninformation about the commission of an offence under TADA is
\nthe approval  of the  District Superintendent  of Police and
\ncognizance of  any offence under TADA cannot be taken by any
\ncourt `without\tthe  previous  sanction\t of  the  Inspector-
\nGeneral of  Police, or, as the case may be, the Commissioner
\nof Police’.  The provision  of the statute is clear that the
\nDistrict Superintendent\t of Police under sub- section(1) can
\ngrant approval\/sanction\t for recording\tof  any\t information
\nabout commission  of an offence under TADA. The jurisdiction
\nunder Section  20A (1)to grant approval for recording of any
\ninformation about  the commission  of an offence under TADA,
\nhas been vested in the District Superintendent of Police.\n<\/p>\n
8.    In  the instant  case, a specific point has been taken
\nin the\tSpecial\t Leave\tPetition  that\tprior  approval,  as
\nrequired by  section 20A(1)  of TADA,  was not\ttaken.\tThis
\nsection\t was  introduced  to  safeguard\t the  citizens\tfrom
\nvexatious prosecution  under TADA.  The Designated Court had
\nfailed to  appreciate that  the\t DSP  had  not\tgiven  prior
\napproval and  the case\tof the\tappelants  under  TADA\twas,
\ntherefore, nonest.\n<\/p>\n
9.    This  ground appears  to be  of substance. The DSP did
\nnot exercise  the jurisdiction\tvested in  him under Section
\n20A (1).  On the contrary, he abdicated his jurisdiction and
\nreferred the  matter to the Additional Chief Secretary, Home
\nDepartment, on\t17th March,  1995, requesting for permission
\nto invoke  the provisions  of Sections\t3 and  5 of  TADA by
\nsending a report for this purpose as under:-\n<\/p>\n
     “In the  matter of\t Gondal\t City  Police
\n     Station I.C.R.  NO.34\/1995 under Section\n<\/p><\/blockquote>\n
     302. 120-B\t of the Indian Penal Code and
\n     Indian Arms  Act Section  25(1)  (c)  of
\n     the Indian\t Arms Act  the facts are that
\n     the   victim,    i.e.,   the    deceased
\n     Jayantibhai  Mohanbhai  Vadodaria,\t aged
\n     32, resident of Yoginagar, Gondal was an
\n     active member of B.J.P. and was a leader
\n     of Patel  community.  In  past,  he  was
\n     member of\tGondal Municipality  and  was
\n     also  a   director\t in   Gondal   Nagrik
\n     Sahakari Bank  Ltd., which is managed by
\n     B.J.P.\n<\/p><\/blockquote>\n
\t  on 15.3.1995\twhen the  First Chief
\n     Minister of  B.J.P. Government took oath
\n     and  installation\t ceremony  was\tbeing
\n     performed at  Gandhinagar, on  that very
\n     day in the evening at 14-30, Jayantibhai
\n     Vadodaria was  killed on Ashapura Dam by
\n     firing shots  and by  sharp weapons. The
\n     complaint of  this murder\tis lodged  by
\n     Shri Nanalal  Kalabhai Patel,  the uncle
\n     of deceased  and on the strength of that
\n     complaint, on  making investigation,  it
\n     is revealed  that the murderers had come
\n     in white coloured Ambassador car No. GRG
\n     375 and  had fired\t twice on him and had
\n     also caused  injuries by  sharp  weapons
\n     and killed\t Jayantibhai  and  then\t they
\n     have absconded.  In this case during the
\n     investigation, the\t names\tof  following
\n     persons are disclosed:\n<\/p><\/blockquote>\n
     1.\t  Dinubha alias\t Dineshsinh Kiritsinh
\n\t  Jadeja, Resident of Gondal.<\/p><\/blockquote>\n
     2.\t  Harshyamsinh\t  Jalamsinh   Jadeja,
\n\t  Dismissed   Constable\t   of\t SRP,
\n\t  resident   of\t   Sindhavadar.\t  Tal
\n\t  Gondal.\n<\/p><\/blockquote>\n
     3.\t  Veshubha  Abhesinh   Jadeja,\t (SRP
\n\t  Constable) resident of Gondal.\n<\/p><\/blockquote>\n
     4.\t   Jitendrasinh Chandrasinh Chudasam,
\n\t  resident of Virpur (Jetpur).
\n     During the\t course of  investigation, on
\n     16.3.1995 at  21-15 all the four accused
\n     are arrested  from the  limits  of\t Jam-
\n     kandorna Police  Station along  with the
\n     car used in the offence.\n<\/p><\/blockquote>\n
\t  All the four accused declare during
\n     investigation that they reside in Gondal
\n     and when  accused No.2 and 3 was in need
\n     of loan  from Gondal Nagrik Sahkari Bank
\n     and had  contacted the  deceased who was
\n     director of  the said Bank at that time,
\n     the deceased  had told to the applicant,
\n     i.e., accused No.2 and 3 herein that `Go
\n     Go, this  Bank is not meant for Darbars;
\n     for getting  loans, only Patels may come
\n     to me  and no  Darbar can\tget loan’. On
\n     this  talk,   there  was  quarrel.\t This
\n     quarrel had  taken place before about 10
\n     or 12  days and since then the said four
\n     Darbars had decided to kill Jayantibhai,
\n     else, the\tstrength of  Patels  will  be
\n     increasing,  therefore,  since  last  10
\n     days,  they   were\t planning   to\t kill
\n     Jayantibhai and  on 15.3.1995 on finding
\n     an opportunity, they have killed him. In
\n     past also\tthe murder  of MLA of Gondal,
\n     Popatbhai\tSorathia  by  the  member  of
\n     Darbar    community.    Therefore,\t   on
\n     happening of  the present\tincident, the
\n     members of\t Patel community  are  feared
\n     and frightened  and nobody dared to come
\n     to Police\tStation. Later on Jayantibhai
\n     Dhol  a  leader  of  Patel\t community  ,
\n     informed us  on telephone\tat Rajkot and
\n     told about the incident and requested to
\n     make some\tarrangement and to direct the
\n     local police  to reach  at the  scene of
\n     offence. Therefore,  we  informed\tlocal
\n     police  and   after  the\tlocal  police
\n     reached on\t the scene  of\toffence,  the
\n     family members  of\t the  deceased\tcould
\n     went there.\n<\/p><\/blockquote>\n
\t  All the  accused who have committed
\n     the murder\t belong to  Darbar  community
\n     and  by   committing  murder   of\tPatel
\n     leader, they have created enmity between
\n     the two  community. In  Gondal  City  in
\n     past  also\t the  Darbar  community\t have
\n     committed the murder of Patel leader and
\n     now   also\t  Jayantibhai\tis   murdered
\n     mercilessly by  firing shots  and\tknife
\n     blows   and   they\t  have\t spread\t  the
\n     atmosphere\t  of\tterror\t and\tfear.
\n     Therefore, the  harmony between  the two
\n     community\t is    very   seriously\t  and
\n     adversely\taffected.   because  of\t this
\n     incident, the  people in  that area  had
\n     started  running  and  moving  here  and
\n     there and\tthe hawkers doing business in
\n     hand-crafts were also frightened and ran
\n     away. The\tpolice force  in large number
\n     was  put\ton  patrolling\tand  numerous
\n     vehicles and police officers were put to
\n     patrolling and  only  thereafter  public
\n     could dare to come out from home.
\n\t  From the  above facts,  it is clear
\n     that the  accused have committed offence
\n     under Sections  3 and 5 of the Terrorist
\n     and Distruptive  Activities (Prevention)
\n     Act, 1987 by keeping illegal weapons and
\n     by\t keeping   ammunition  and  therewith
\n     murdering the  citizen, they  have\t done
\n     the act  of terrorist  and offence under
\n     Section 5 of the said Act is committed.
\n\t  C.I.D., I.B.\tof Gujarat  State has
\n     also reported  that due to this incident
\n     and as  a reaction of this incident, the
\n     enmity prevailing\tin Saurashtra between
\n     Darbar and Patel Community may intensify
\n     and opposite  party,  i.e.,  Patels  may
\n     also indulge in such activities.
\n     Considering  the\tsituation  which  has
\n     arisen permission may please be given to
\n     invoke the\t provisions of Sections 3 and
\n     5 of the TADA in this matter.\n<\/p><\/blockquote>\n
\t\t\t       Sd\/- in English
\n\t\t\t District Police Superintendent
\n\t\t\t  Rajkot Rural, Camp at Gondal”.\n<\/p><\/blockquote>\n
10.    The   Deputy  Director-General\tof  Police  and\t the
\nAdditional  Director-\tGeneral\t of  Police  also  sent\t FAX
\nMessages  to  the  Chief  Secretary  on\t 18th  March,  1995,
\nrequesting him to grant the prayer of the DSP and permit him
\nto proceed  under TADA.\t On 18th March, 1995, the Additional
\nChief Secretary,  Home Department,  gave sanction\/consent to
\napply provisions of TADA; and the District Superintendent of
\nPolice, Rajkot\tRural, was  informed accordingly.  There  is
\nnothing in  the Act  to suggest\t that the  Additional  Chief
\nSecretary has  to grant\t permission to\tthe District  Police
\nSuperintendent for proceeding under TADA.\n<\/p>\n
11.    The   case  against  the\t appellants  originally\t was
\nregistered on  19th March,  1995 under the Arms Act. The DSP
\ndid not\t give any  prior approval  on his  own to record any
\ninformation about  the commission  of an offence under TADA.
\nOn the\tcontrary, he  made a  report to the Additional Chief
\nSecretary and  asked for  permission to\t proceed under TADA.
\nWhy?  was   it\tbecause\t  he  was   reluctant  to   exercise
\njurisdiction vested  in him  by the provision of Section 20A
\n(1)? This  is a\t case of  power conferred upon one authority
\nbeing really  exercised by another. If a statutory authority
\nhas been  vested with  jurisdiction, he\t has to\t exercise it
\naccording to  its  own\tdiscretion.  If\t the  discretion  is
\nexercised under\t the direction\tor in  compliance with\tsome
\nhigher authority’s  instruction, then  it will\tbe a case of
\nfailure to  exercise discretion\t altogether. In other words,
\nthe discretion vested in the DSP in this case by Section 20A
\n(1) was not exercised by the DSP at all.\n<\/p>\n
12.    Reference   may\tbe   made  in\tthis  connection  to
\nCommissioner of\t Police vs. Gordhandas Bhanji,<\/a> 1952 SCR 135,
\nin which  the action of Commissioner of Police in cancelling
\nthe permission granted to the respondent for construction of
\ncinema\tin  Greater  Bombay  at\t the  behest  of  the  State
\nGovernment was\tnot  upheld,  as  the  concerned  rules\t had
\nconferred this\tpower on  the Commissioner, because of which
\nit was\tstated that  the Commissioner  was bound to bear his
\nown independent\t and  unfettered  judgment  and\t decide\t the
\nmatter for  himself, instead  of forwarding  an order  which
\nanother authority had purported to pass.\n<\/p>\n
13.    It   has\t been\tstated\tby   Wade  and\t Forsyth  in
\n‘Administrative Law’, 7th Edition at pages 358 and 359 under
\nthe heading  ‘SURRENDER,  ABDICATION,  DICTATION’  and\tsub-
\nheading “Power in the wrong hands” as below:-\n<\/p>\n
     “Closely\takin   to   delegation,\t  and
\n     scarcely distingushable  from it in some
\n     cases, is\tany arrangement\t by  which  a
\n     power conferred upon one authority is in
\n     substance\texercised   by\tanother.  The
\n     proper authority  may  share  its\tpower
\n     with some\tone else,  or may  allow some
\n     one else  to dictate  to it by declining
\n     to\t act  without  their  consent  or  by
\n     submitting\t  to\ttheir\t wishes\t   or
\n     instructions. The\teffect then  is\t that
\n     the discretion  conferred by  parliament
\n     is exercised,  at least  in part, by the
\n     wrong  authority,\t and  the   resulting
\n     decision is  ultra vires  and  void.  So
\n     strict are\t the courts  in applying this
\n     principle\t that\tthey   condemn\t some
\n     administrative arrangements  which\t must
\n     seem quite\t natural and  proper to those
\n     who make them…..”.\n<\/p><\/blockquote>\n
\t  “Ministers  and  their  departments
\n     have several  times fallen\t foul of  the
\n     same rule,\t no doubt  equally  to\ttheir
\n     surprise….”.\n<\/p><\/blockquote>\n
14.  The present  was thus a clear case of exercise of power
\non the\tbasis of external dictation. That the dictation came
\non the prayer of the DSP will not make any difference to the
\nprinciple. The\tDSP did not exercise the jurisdiction vested
\nin him\tby the\tstatute and  did not  grant approval  to the
\nrecording of  information under\t TADA  in  exercise  of\t his
\ndiscretion.\n<\/p>\n
15.   The  aforesaid is\t however not  all.  Even  if  it  be
\naccepted that  as an  additional safeguard against arbitrary
\nexercise of the drastic provisions, the State Government had
\nprovided  by   administrative  instructions   an  additional
\nsafeguard where\t under the  DSP was  required to  obtain the
\nsanction\/consent of the State Government, we are of the view
\nthat in\t the present  case the\tsame was  given by the State
\nGovernment without proper application of mind. We have taken
\nthis view  because the\tsanction\/consent was  given  by\t the
\nGovernment merely  on the  basis of  the FAX  message  dated
\n17.3.1995 of  the DSP.\tThe reason for our saying so is that
\nthough there  is on  record a FAX message of Deputy Director
\nGeneral of  Police  also,  which  is  dated  18.3.1995,\t the
\nsanction\/ consent  order has mentioned above the FAX message
\nof the\tDSP only.  Now, no  doubt the  message of the DSP is
\nquite exhaustive,  as would  appear from  that message which
\nhas been quoted above in full, we are inclined to think that
\nbefore agreeing\t to use\t of harsh provisions of TADA against
\nthe appellants,\t the Government\t ought to  have\t taken\tsome
\nsteps to  satisfy itself whether what had been stated by the
\nDSP was\t brone out  by the records, which apparently had not
\nbeen called for in the present case, as the sanction\/consent
\nwas given  post haste  on 18.3.1995, i.e., the very next day
\nof the\tmessage of  the DSP. It seems the DSP emphasised the
\npolitical angle\t in the first two paragraphs of his message.
\nThe dispute  or motive\tstated was  that  the  Darbars\twere
\nannoyed because\t they were  refused loan  and not because of
\nany political  rivalry. In  the\t third\tparagraph  there  is
\nreference to  statements of accused after arrest which would
\nordinarily be  inadmissible in\tevidence. Reference to avoid
\nincident of  the past  does not provide any nexus. The State
\nGovernment gave\t the sanction  without even  discussing\t the
\nmatter with  the investigating officer and without assessing
\nthe situation  independently. All  these show lack of proper
\nand due\t application of\t mind by  the State Government while
\ngiving sanction\/consent.\n<\/p>\n
16.   For  the aforesaid  twin reasons\twe  state  that\t the
\nentire proceeding  against  the\t appellants  under  TADA  is
\nvitiated and  the same\tis,  therefore,\t quashed.  It  would
\nhowever be  open to  the respondents  to proceed against the
\nappellants even under the TADA in accordance with law.\n<\/p>\n
17.   Insofar  as other\t offence is  one under Section 25(1)\n<\/p>\n
(b) of\tthe Arms  Act is  concerned, no\t contention has been
\nadvanced to  deny bail\tto the\tappellants.  We,  therefore,
\norder the  release of  the two appellants on bail on each of
\nthem furnishing\t a bond\t of Rs.\t 10,000\/- with one surety in
\nthe like  amount. The appellants shall observe the following
\nconditions also after release on bail:\n<\/p>\n
(1)\t    They   shall  make\t themselves  available\t for
\ninterrogation by police as and when required.
\n(2)\t   They\t shall not  directly or\t indirectly make any
\ninducement, threat  or promise to any person acquainted with
\nthe facts of the case so as to dissuade them from disclosing
\nsuch facts to the court or to police.\n<\/p>\n
(3)\t   They shall not leave the State of Gujarat without
\nthe permission of the Designated Court.\n<\/p>\n
18.   The appeal is allowed accordingly.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Anirudhsinhji … vs The State Of Gujarat on 11 August, 1995 Equivalent citations: 1995 AIR 2390, 1995 SCC (5) 302 Author: H B.L. Bench: Hansaria B.L. (J) PETITIONER: ANIRUDHSINHJI KARANSINHJIJADEJA & ANR. Vs. RESPONDENT: THE STATE OF GUJARAT DATE OF JUDGMENT11\/08\/1995 BENCH: HANSARIA B.L. (J) BENCH: HANSARIA B.L. (J) AHMADI A.M. 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