Santosh Kumar Singh v. State Of Bihar — 1992 DIGILAW 180 (PAT)

Judgment Choudhary S.N.Mishra, J. 1. The petitioner, in this criminal writ application under Articles 226 and 227 of the Constitution of India, has prayed for issuance of a writ in the nature of mandamus or any other order or direction commanding the respondents to treat as cancelled the reference to violation of provisions of Sec. 3(1) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as "the Act") as mentioned in the first information report registered as Patna P.S. Case No. 114 of 1991 under Sec. 395 of the Indian Penal Code (hereinafter referred to as "the Code") and Sec. 3 (1) of the Act, as contained in Annexure-1. It has been further prayed for quashing of the said part of the first information report made under the Act against the petitioner, which is pending in the court of respondent No. 3. 2. According to the petitioner, a first information report was lodged by one Lalit Kishore Bux Rai on 8-12-1991 alleging therein that on 7-12-1991 at about 7.30 p.m., a mob of 50-60 persons surrounded the house of the informant and they asked the informant to hand over his licensee gun, whereupon the informant, due to fear, gave them his two licensee D.B.B.L. gun along with ten live cartridges. It has further been alleged that the extremists belonging to M.C.C. Party often came and held meetings in the area. The informant claims to have identified some of the persons of the mob, who are named in the first information report and he further claimed to identify other extremists after seeing them. It was also alleged, that while going away, they raised slogans as "M.C.C. Zindabad". On the basis of the aforesaid allegations the second respondent, registered the case being Patna P.S. Case No. 114 of 1991, dated 8-12.1991, under Sec. 395 of the Code and Sec. 3 (1) of the Act, as contained in Annexure-1. 3. It was also alleged, that while going away, they raised slogans as "M.C.C. Zindabad". On the basis of the aforesaid allegations the second respondent, registered the case being Patna P.S. Case No. 114 of 1991, dated 8-12.1991, under Sec. 395 of the Code and Sec. 3 (1) of the Act, as contained in Annexure-1. 3. Apart from taking several grounds of attack, the petitioner has stated in this writ application that there is no allegation in the first information report, as contained in Annexure-1, that the petitioner has committed any offence under Sec. 3 (1) of the Act and the action of the second respondent, who is the officer-in-charge of the Patna Police Station, in implicating the petitioner for the offence under the Act is wholly arbitrary, mala fide and the same has been added for collateral purposes. 4. It is further stated that the action of the second respondent in involving the petitioner in absence of the allegation in the first information report with regard to the required ingredients of the offence under Sec. 3 (1) of the Act, is violative of the petitioners right under Articles 14,21 and 22 of the Constitution of India. 5. It is further stated that due to the impugned action of second respondent, the petitioner has been put to a great harassment and torture inasmuch as Sec. 3 (1) of the Act has been added by the second respondent with an ulterior motive and in order to snatch away the remedy available to the petitioner under the general law of the land. 6. It has also been stated that the action of second respondent is further falsified by the fact that the informant himself has voluntarily, sworn in an affidavit before the learned Chief Judicial Magistrate, Daltonganj, stating therein that the petitioner was neither involved in the alleged occurrence nor has he alleged anything in the first information report against him. A copy of the said affidavit is Annexure-2 to the writ application. Lastly, the petitioner has stated that there was no notification by which the district of Palamu has been declared as terrorists affected area nor has it been declared by any notification, as a prohibited or protected place and/or protected area. 7. No counter-affidavit has been filed by any of the respondents in this writ application. 8. Lastly, the petitioner has stated that there was no notification by which the district of Palamu has been declared as terrorists affected area nor has it been declared by any notification, as a prohibited or protected place and/or protected area. 7. No counter-affidavit has been filed by any of the respondents in this writ application. 8. On the basis of the aforesaid averments in the writ petition, it has been submitted by the learned Counsel that the action of the second respondent in involving the petitioner for the offence under the Act is in complete disregard of the law of the land and in violation of the petitioners right under Articles 14 and 21 of the Constitution of India. 9. It has next been submitted that even if the allegation made in the first information report is taken on its face value, it cannot be said that the petitioner has committed any offence in terms of Sec. 3(1) of the Act. 10. In support of his submission, learned Counsel, appearing for the petitioner, has placed reliance upon the decisions in the case of Usmanbhai Dawoodbhai Memon and Ors. etc. V/s. State of Gujarat reported in -- and Ayubkhan Kalandarkhan Pathan V/s. State of Gujarat and Ors. in 1991 Criminal Law Journal 1015. 11. In substance, the learned Counsel has submitted that the second respondent maliciously added Sec. 3(1) of the Act in absence of the essenntial ingredients to constitute the offence under the Act only for the purpose of depriving the petitioner of his statutory right to approach the court under the general and common laws of the land. 12. Mrs. Pal, learned Standing Counsel No 1, appearing on behalf of the respondent-State, has submitted that the question whether, on the basis of the allegations made in the first information report any offence under the Act is made out or not, can be determined only by the designated court and, that too, not only on the basis of the first information report, but also the other police papers including the statement of the witnesses. 13. Mrs. Pal has also submitted that whether on the allegations made in the written report, the offence under the Act is made out or not should be entirely left for determination by the designated court. 14. In support of her submission, she relied upon a decision of Hiren Brahma V/s. State of Assam and Anr. 13. Mrs. Pal has also submitted that whether on the allegations made in the written report, the offence under the Act is made out or not should be entirely left for determination by the designated court. 14. In support of her submission, she relied upon a decision of Hiren Brahma V/s. State of Assam and Anr. reported in (1992) Eastern India Criminal Cases 132. 15. In reply to the submission made by the learned Standing Counsel, the learned Counsel appearing for the petitioner submitted that reading the provisions of the Act as a whole, it cannot be said that the Act has taken away the constitutional remedy available to the citizen to invoke the jurisdiction of the High Court or the apex court under Articles 226 and 227 and Article 32 of the Constitution of India, respectively. 16. In substance, the submission of the learned Counsel for the petitioner is that the citizen can always approach the High Court under Articles 226 and 227 of the Constitution of India challenging the constitutional validity of the Act on the ground that its provisions offend Articles 14, 21 and 22 of the Constitution, 17. In order to test the validity of the rival contentions of the learned Counsel appearing for the parties, it is necessary, right now, to refer to Sec. 3(1) of the Act, which reads as follows: 3. Punishment for terrorist acts,-(I) Whoever with intent to overawe the Government as by law established or to strike terror in 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, destruction of property, or any supplies of 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. (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 ; (ii) in any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for the life and shall also be liable to fine. (3) Whoever conspires or attempts to commit, or advocates, abets, advises or incites or knowingly facilitates the commission of, a terrorist act or any act preparatory to a terrorist to act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine. (4) Whoever harbours or conceals, or attempts to harbour or conceal, any terrorist shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine. 18. In this context, Sec. 21 of the Act is also relevant in order to decide the issue in hand, which is quoted in extens: 21. Presumption as to offence under Sec. 3.-In a prosecution for an offence under Sub-sec. (1) of Sec. 3 if it is proved.- (a) that the arms or explosives or any other substances specified in Section 3 were recovered from the possession of the accused and there is reason to believe that such arms or explosives or other substances of a similar nature, were used in the commission of such offence ; or (b) that by the evidence of an expert the finger-prints of the accused were found at the site of the offence or on any thing including arms and vehicles used in connection with the commission of such offence ; or (c) that a confession has been made by a co-accused that the accused had committed the offence ; or (d) that the accused had made a confession of the offence to any person other than a police officer, the Designated Court shall presume, unless the contrary is proved, that the accused had committed such offence. (2) In a prosecution for an offence under Sub-sec. (2) In a prosecution for an offence under Sub-sec. (3) of Sec. 3, if it is proved that the accused rendered any financial assistance to a person accused of, or reasonably suspected of, an offence under that section, the Designated Court shall presume, unless the contrary is proved, that such person has committed the offence under that sub-section. 19. In view of the provisions, aforesaid now I proceed to consider the submissions of the learned Counsel appearing for the petitioner. The facts, which have been stated in the petition, have neither been disputed nor controverted by the learned Counsel appearing on behalf of the State and, therefore, the said facts stand admitted. As regards, the submission on the question whether, in the facts and circumstances of this case, the provisions of the Act, are at all, attracted in order to constitute the offence under the Act, allegations must be in terms of the requirement under the provisions quoted above. 20. Fristly, I have to answer the submission advanced by the Standing Counsel No. 1, regarding maintainability of this writ application under Articles 226 and 227 of the Constitution of India. According to the learned Counsel, the question involved in this writ application can be examined by the designated court alone and not by this Court even under its writ jurisdiction. 21. Reliance has been placed on behalf of the learned Standing Counsel No 1 on the Single Bench decision reported in Hiren Brahma cases (supra). The Question for decision in that case was whether the High Court can interfere with the order passed by the designated court refusing the prayer for bail on the around of its being premature. It has been held, relying upon the decision reported in -- (supra) that the High Court has no Jurisdiction to interfere with the order passed by the designated court and on this finding the learned Single Judge rejected the prayer for bail. However, it has been held in that case that the High Court can definitely issue a direction to the designated court in exercise of its power under Article 227 of the Constitution to observe the law laid down by the apex court. 22. In my view, the ratio of the case reported in Hiren Brahmas case (supra) is not applicable to the facts and circumstances of this case. 22. In my view, the ratio of the case reported in Hiren Brahmas case (supra) is not applicable to the facts and circumstances of this case. Coming to the decision in Usmanbhai Dawoodbhai Merons case (supra), their Lordships have observed in paragraph 26 of the judgment: 26. The other category of cases have arisen out of communal riots Normally such cases have to be dealt with under the ordinary procedure prescribed by the Code, unless offences under Secs. 3 and 4 of the Act are made out. 23. Their Lordships further observed in paragraph 15 of the judgment: 15. Before dealing with the contention advanced, it is well to remember that the legislation is limited in its scope and effect. The act is an extreme measure to be resorted to when the police cannot tackle the situation under the ordinary penal law. The intendment is to provide special machinery to combat the growing menace of terrorism in different parts of the country. Since, however, the Act is a drastic measure, it should not ordinarily be resorted to unless the Governments law enforcing machinery fails. 24. The question before their Lordships was whether the High Court can entertain an application for bail under Sec. 439 or even quashing application under Sec. 482 of the Code of Criminal Procedure (hereinafter referred to as "the Code"). Their Lordships, in the facts and circumstances of that case, answered the question in negative, but this much can be easily inferred from the ratio of the Usmanbhais case (supra) that the provisions of the Act do not take away the constitutional remedy available to the citizen to invoke the jurisdiction of the High Court under Articles 226 and 227 and/or the Supreme Court under Article 32 of the Constitution. In this connection, the observations of their Lordships in parapraph 12 of the judgment is relevant, which read as follows: 12. At the very outset, Shri Poti, learned Counsel appearing for the State Government with his usual fairness, unequivocally accepted that the provisions of the Act do not take away the constitutional remedies available to a citizen to approach the High Court under Art. 226 or Art. 227 or move this Court by a petition under Art. 32 for the grant of an appropriate writ, direction or order. It must necessarily follow that a citizen can always move the High Court under Article 226 or Article 227, or this Court under Article 32 challenging the constitutional validity of the Act or its provisions on the ground that they offend against Articles 14, 21 and 22 or on the ground that a notification issued by the Central Government or the State Government under Sec. 9 (1) of the Act constituting a Designated Court for any area or areas or for such case or class or group of cases as specified in the notification was a fraud on powers and thus constitutionally invalid. 25. Thus," from the aforesaid observations made in the Usmanbhais case (supra), it necessarily follows that the High Court, under Article 226 of the Constitution, can certainly entertain and examine the question involved and, particulary, when there is a real threat to the infringement of fundamental rights. 26. The next citation on the issue in question relied upon is a Division Bench decision reported in 1991 Criminal Law Journal 1085 (supra) wherein the question similar to the one involved in the instant case, came up before their Lordships for consideration. In the aforesaid case, the argument was that the High Court has no jurisdiction to examine whether the facts stated in the written report constitute the offence under the provisions of the Act. 27. Relying upon the ratio of the decisions reported in 1988 Supreme Court 922 (supra) it has been submitted on behalf of the respondent State in that case that whether the offence will come under the purview of the Act can only be determined by the designated court on the basis of the evidence adduced as well as other materials including the police papers. In substance, the argument of the learned Counsel appearing on behalf of the State was that the moment reference to Sec. 3 (1) of the Act is made by the Investigating Officer, the jurisdiction of the High Court cases and, accordingly, the learned Counsel has submitted that the High Court has no jurisdiction to examine whether the facts alleged in the written report constitute the offence under the Act or not. 28. 28. Repelling the argument of the learned Counsel for the State in that case, it has been submitted on behalf of the petitioner relying upon a decision of the Supreme Court in the case of S.M.D. Kiran Pasha V/s. Govt. of Andhra Pradesh reported in (1989) 4 JT 366 wherein, their Lordships of the Supreme Court has held that Article 226 of the Constitution of India empowers the High Court to issue to any person or authority, including, in appropriate cases, any Government, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them for the enforcement of any of the rights conferred by Part-Ill and for any other purpose. Their Lordships of the Supreme Court, in the said case, have also held as under: ...The question is at what stage the right can be enforced ? Does a citizen have to wait till the right is infringed ? Is there no way of enforcement of the right before it is actually infringed ? Can the obligation or compulsion on the part of the State to observe the right be made effective only after the right is violated or in other words can there be enforcement of a right to life and personal liberty before it is actually infringed ? what remedy will be left to a person when his right to life is violated ? When a right is yet to be violated, but is threatened with violation can the citizen move the court for protection of the right. The protection of the right is to be distinguished from its restoration or remedy after violation. When right to personal liberty is guaranteed and the rest of the society, including the State, is compelled or obligated not to violate that right, and if someone has threatened to violate it or its violation is imminent, and the person whose right is so threatened or its violation so imminent resorts to Article 226 of the Constitution, could not the court protect observance of his right by restraining those who threatened to violate it until the court examines the legality of the action. Post-violation resort to Article 226 is for remedy against violation and for restoration of the right, while pre-violation protection is by compelling observance of the obligation or compulsion under law not to infringe the right by all those who are so obligated for compelled .... Law surely can act only after overt acts. If overt acts towards violation have already been done and the same has come to the knowledge of the person threatened with that violation and he approaches the court under Article 226 giving sufficient particulars of proximate actions as would imminently lead to violation of right, should not the court call upon those alleged to have taken those steps to appear and show cause why they should not be restrained from violating that right ? Instead of doing so would it be the proper course to be adopted to tell the petitioner that the court cannot take any action towards preventive justice until his right is actually violated whereafter alone he could petition for a writ of habeas corpus ?...If a thereatened invasion of a right is removed by restraining the potential violator from taking any steps towards violation, the rights remain protected and the compulsion against its violation is enforced. If the right has . already been violated, what is left is the remedy against such violation and for restoration of the right.... 29. The Division Bench in 1991 Criminal Law Journal 1085, after considering various decisions of the High Courts including that of the Supreme Court, has held while concluding paragraph 16 of the judgment, as under: 16...The aforesaid observations are made with a view to see that there is no misuse of the powers under the TADA Act by the Police. Under the circumstances we are of the opinion that this Court has power to examine the question as to whether the provisions of the TADA Act apply or not when writ petition under Article 226 of the Constitution is maintainable, to protect the fundamental rights guaranteed under Articles 14 and 21 of the Constitution of India. 30. After having so held, their Lordships, in the facts and circumstances of that case, has held that no case has been made out in the written report so as to attrack the provisions of the Act and, accordingly, held in paragraph 22 of the judgment, as under: 22. 30. After having so held, their Lordships, in the facts and circumstances of that case, has held that no case has been made out in the written report so as to attrack the provisions of the Act and, accordingly, held in paragraph 22 of the judgment, as under: 22. The result of the above finding would be that the petitioner cannot be arrested by the respondents for the alleged commission of offences under Secs. 3 and 4 of the TADA Act as the investigation stands today and, therefore, we direct the second respondent to treat mentioning of violation of Secs. 3 and 4 of the TADA Act in column-6 of the FIR as un-warranted and wrong and not to proceed with the arrest of the petitioner on the basis of said mentioning column-6 of the FIR. However, it is clarified that the second respondent would be at liberty to further investigate the matter and on getting further material if he is satisfied that it is necessary to proceed against the petitioner under the provisions of the TADA Act taking into consideration the observations made by the Supreme Court in the case of Usmanbhat, (1988) Cri LJ 938 (supra), he would be at liberty to do so and thereafter he should proceed in accordance with law in making report to the Designated Court, if necessary. Accordingly, to the aforesaid extent we allow this petition. Rule is made absolute to the aforesaid extent. 31. Now in the light of the decision, aforementioned, here and now I proceed to consider the allegations, mentioned in the written report (Annexure-1). From a bare reading of the allegations made in the written report (Annexure-1), it can safely be said that absolutely no allegation has been made so as to constitute the offence under the provisions of the Act. Merely asking the informant to part with the gun without using the same cannot be said to constitute an offence under the Act. 32. It further appears from the statement made in the written report that no overt act has been alleged against the petitioner. On the contrary, an affidavit has been sworn in before the Chief Judicial Magistrate by the informant himself to the effect that the petitioner is neither, in any way, involved in the instant case nor has he named the petitioner in the first information report. On the contrary, an affidavit has been sworn in before the Chief Judicial Magistrate by the informant himself to the effect that the petitioner is neither, in any way, involved in the instant case nor has he named the petitioner in the first information report. It is really surprising as to how the name of the petitioner has been dragged in when the written report submitted by the informant is the basis of initiating the instant proceeding. 33. It is admitted position that no notification either by the Central Government or by the State Government has been issued declaring the district of Palamau as Terrorists affected area nor has there been any notification issued declaring the said district as prohibited place or protected place /protected area. 34. Having regard to the facts and circumstances of this case and after having considered the submissions advanced on behalf of the Counsel appearing for the parties as well as relying upon the ratio of the aforesaid Decisions, I am definitely of the view that the allegation, as it stands, in the written report (Annexure-1) does not constitute any offence under the Act. 35. In view of the aforesaid finding, the ultimate result is that the alleged commission of offence under Sec. 3 (1) of the Act has not been made out. I, therefore, direct the second respondent, namely, the Investigating Officer, to treat mentioning of violation of Sec. 3(1) of the Act as un-warranted and un-called for. However, it is made clear that the second respondent will be at liberty to investigate into the matter and if he finds further material to proceed against the petitioner under the Act, he can do so but in accordance with law as and when the situation so demanded. (Underlining is mine for the sake of emphasis). 36. It is further made clear that any finding and observation made in this order will not, in any way, affect the case of the either party, so far the substantive case recorded against the petitioner under Sec. 395 of the Code is concerned. 37. This writ application is, accordingly, allowed to the extent indicated above.