Judgment : This writ petition by accused Nos. 11 and 12 in C.C.No. 9 of 1992 on the file of the Designated Court No. 3, Madras is (i) for a writ of certiorarified mandamus to quash the order dated 1. 1994, (refusing to discharge them under Sec. 227, Cr.P.C.) in Crl.M.P.No. 99 of 1993 in the said case against them and other accused and (ii) for quashing the charges framed against the petitioners by the said Designated Court in the said criminal case and to direct the discharge of the petitioners. 2. The material allegations in the affidavit in support of the writ petition are: The petitioners were arrested on 2. 1991 from Nithiya Apartments by the Adayar Law and Order police and a case in Crime No. 42 of 1991 was registered against them. First Information Report is pending in 11th Metropolitan Magistrate’s Court, Madras, but charge sheet has not yet been filed. The petitioners were produced before Court on 2. 1991, but were remanded to police custody till 12. 1991 and subsequently it was extended till 12. 1991. Initially the petitioners were detained in Adayar police station and subsequently in Avadi police station. The petitioners were then sent to Central Prison on 12. 1991 and preventive detention order under National Security Act was passed against the petitioners and they were detained in Madras prison till 7. 1991 and from 7. 1991, they were detained in Central Prison, Salem. Thereafter, the 1st respondent ‘Q’ Branch Police C.I.D. had taken them from the Central Prison under police custody and one Narayanaswamy Inspector ‘Q’ Branch brought them to Madras and they were produced before the Designated Court at Madras on 1. 1992. Then they were told that they were accused in the ‘ship case’. A false charge sheet has been filed against them alleging that they are close associates of one Balan, accused in the above said case and that the petitioners had established a dairy farm in the year 1988 at Perumugai and that the 1st petitioner facilitated the acts which would come under Terrorist Act, rendering himself liable under Sec. 3(3) of Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as ‘the Act’). The petitioners were actually charged under Sec. 120(B), I.P.C. read with Secs. 3(3), 5 and 6 of the Act and Sec. 5 of the Explosives Substances Act, 1908. The petitioners were actually charged under Sec. 120(B), I.P.C. read with Secs. 3(3), 5 and 6 of the Act and Sec. 5 of the Explosives Substances Act, 1908. The petitioners filed the above said Criminal M.P.No. 99 of 1993 for discharge on various grounds. But the same was dismissed by the said Designated Court on 1. 1994. Aggrieved by the said order, this writ petition is filed. 3. The submissions of learned Counsel for the petitioners are as follows: The ingredients of the offence under Sec. 3(3) of the Act are not at all made out and therefore the Designated Court failed to exercise its jurisdiction to discharge the said two accused Nos. 11 and 12. According to learned Counsel for the petitioners, Sec. 3(3) of the Act speaks not of the main offence, which is spoken to under Sec. 3(1) of the Act, but speaks only of the offence relating to abetment of the main offence and the like. But, according to learned counsel, all the accused, including accused 1 to 10 are only charged as such abettors, and when none has committed an offence under Sec. 3(1) of the Act, according to the charge-sheet the offence under Sec. 3(3) could not arise at all. According to learned counsel, this point was not considered by the Designated Court. Therefore, according to learned counsel, this petition is filed under Art. 226 of the Constitution of India, the other remedies to this court having been barred, in view of Sec. 19 of the Act. Learned Counsel also relies on the observations in Niranjan Singh and Karam Singh Punjabi v. Jitendra Bhimraj Bijja, A.I.R. 1990 S.C. 1962, which speaks of the scope of the relevant provisions of the Act and Sec. 227 of the Criminal Procedure Code. 4. No doubt, initially there was the question of maintainability of this petition under Art. 226 of the Constitution of India. However, it appears that that question has been answered in favour of the petitioners earlier. 4. No doubt, initially there was the question of maintainability of this petition under Art. 226 of the Constitution of India. However, it appears that that question has been answered in favour of the petitioners earlier. No doubt in D. Veerasekaran v. State of Tamil Nadu represented by D.S.P. ‘Q’ Branch, C.I.D. Madras, 1992 M.L.J. (Crl.) 426: 1992 L.W. (Crl.) 1, a Division Bench of this Court has held that there is no bar for this Court entertaining a petition under Art.226 of the Constitution of India against the order of the Designated Court under the Act, despite Sec. 19 of the Act, stating that appeal would lie only to Supreme Court against the order of the Designated Court and not “appeal or revision” to this Court or any other Court. 5. However, before entering into the merits of the case, I must point out a very relevant observation of the Supreme Court in a very recent case in Kartar Singh v. State of Punjab, 1994(4)(1) Crimes. 1031. In that case, no doubt the question was whether bail could be granted to an accused under the Act by this Court under Art. 226 of the Constitution of India. In that connection, the observation of the Supreme Court is as follows: “Though the High Court have very wide powers under Art. 226, the very vastness of the powers imposes on it the responsibility to use them with circumspection and in accordance with the judicial consideration and well established principles. The legislative history and the object of TADA Act indicate that the special Act has been enacted to meet challenges arising out of terrorism and disruption. Special provisions are enacted in the Act with regard to the grant of bail and appeals arising from any judgment, sentence or order (not being an interlocutory order) of Designated Court etc. The over-riding effect of the provisions of the Act (i.e. Sec. 25 of TADA) and the Rules made thereunder and the non-obstante clause in Sec. 20(7) reading, “Notwithstanding anything contained in the Code ....” clearly postulate that in granting of bail the special provisions alone should be made applicable. If any party is aggrieved by the order, the only remedy under the Act is to approach the Supreme Court by way of an appeal. If any party is aggrieved by the order, the only remedy under the Act is to approach the Supreme Court by way of an appeal. If the Courts entertain bail applications invoking their extraordinary jurisdiction under Art. 226 and pass orders, then the very scheme and object of the Act and the intendment of the Parliament would be completely defeated and frustrated. But at the same time it cannot be said that the High Courts have no jurisdiction. Therefore, we totally, agree with the view taken by this Court in Abdul Hamid v. Haji Mohammed, (1994)2 J.T. 1 , that if the High Court is inclined to entertain any application under Art. 226, that power should be exercised most sparingly and only in rare and appropriate cases in extreme circumstances. [Italics supplied] 6. Further even the above referred decision relied on by learned Counsel for the petitioners, viz., Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijja, A.I.R. 1990 S.C. 1962, while dealing with Sec. 227 of the Criminal Procedure Code, has observed as follows: "Under this section a duty is cast on the Judge to apply his mind to the material on record and if on examination of the record he does not find sufficient ground for proceedings against the accused, he must discharge him. On the other hand if after such consideration and hearing he is satisfied that a prima facie case is made out against the accused, he must proceed to frame a charge as required by Sec. 228 of the Code.......Sec. 227, introduced for the first time in the New Code, confers a special power on the Judge to discharge an accused at the threshold if upon ‘consideration’ of the record and documents he considers that there is not sufficient ground’ for proceedings against the accused." It is further observed in the said decision, while dealing with the same scope of Sec. 227 of the Criminal Procedure Code: "It is obvious that since he is at the stage of deciding whether or not there exists sufficient grounds for framing the charge, his enquiry must necessarily be limited to deciding if the facts emerging from the record and documents constitute the offence with which the accused is charged. At that stage he may sift the evidence for that limited purpose but he is not required to marshal the evidence with a view to separating the grain from the chaff. All that he is called upon to consider is whether there is sufficient ground to frame the charge and for this limited purpose he must weight the material on record as well as the documents relied on by the prosecution. In State of Bihar v. Ramesh Singh, A.I.R. 1977 S.C. 2018: (1978)1 S.C.R. 257 : (1977) Crl.L.J. 1606: 1977 S.C.C. (Crl.) 533: (1977)4 S.C.C. 39 this Court observed that at the initial stage of the framing of a charge if there is a strong suspicion-evidence which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused ...... it is not necessary for the Court to enter into the pros and cons of the matter or into weighing and balancing of evidence and probabilities but he may evaluate the material to find out if the facts emerging therefrom taken at their face value establish the ingredients constituting the said offence." [Italics supplied]. In the above background, I have to consider whether there is any scope for interference of the above said order of the Designated Court, under Art. 226 of the Constitution of India. 7. The reasoning of the Designated Court in passing the impugned order can be gathered from the following observation of the said Court in the impugned order: "No doubt accused 11 and 12 are not crew members of Tongnova Ship and only accused 1 to 10 are members of the crew of Tongnova Ship. The learned Public Prosecutor contended that accused 11 and 12 facilitated the commission of Terrorist Act and that accused 11 and 12 rendered necessary facilities to accused No. 2 to go abroad for purchase of arms and ammunitions and therefore accused 11 and 12 have committed the offence under Sec. 3 of TADA Act. After the arrest of the 2nd accused confessions statements was recorded on 211. 1991. After the arrest of the 2nd accused confessions statements was recorded on 211. 1991. A perusal of the statement would go to show the accused 11 and 12 were residing together at Madras and that accused No. 11 has made necessary arrangements for getting passport at Trichy and with the help of that passport at Trichy and with the help of that passport he went to Calcutta and then to Singapore. It is also seen from the statement that arms and ammunitions were brought in Tongnova ship to Tamil Nadu for concealing in coastal area of Tamil Nadu......The witnesses Palani and Sivaraj have also given statements. It is seen from their statements that at Perumugai a dairy farm was run by 12th accused and that 11th accused used to visit the dairy farm. A similar statement was also given by the witness N.Kumar. They have also stated that after the assassination of Rajiv Gandhi the above said persons absconded. The witnesses Natesa Mudaliar, Ravi and Selvaraj, have also given similar statements. A perusal of the statements of the witnesses would go to show that the 11th accused belonged to Ceylon and he came to Nithya Apartments 2nd Main Road, Gandhi Nagar, Adyar, Madras and was living there and they were having electronic machines and during night time a number of Ceylone people would come to see the accused and they used to have discussion and that no one would be allowed to enter into the house. A perusal of the statements of the witness Kalaivani would go to show that her husband Sugirthakumar is a member of LTTE and that accused 11 and 12 used to go to Perumugai to supervise the dairy farm and that LTTE people would come and stay in his house and the 11th accused is an important member of the LTTE and that he was having connections with the Ceylon Tamillians who were living abroad A perusal of the statements of the witness Gurusamy would go to show that accused 11 and 12 when they were caught by the police threatened that they would kill the police and they will die after consuming Cyanide poison. 8. 8. In the light of the above said findings in the impugned order, it is clear to me that the present case cannot at all be considered as one where I can exercise my discretion to interfere under Art. 226 of the Constitution of India, particularly in the light of the above said observations of the Supreme Court Kartar Singh v. State of Punjab, 1994(4)(1) Crimes. 1031. 9. The other submission of learned counsel that accused 11 and 12 could not be charged for mere abetment spoken to in Sec. 3(3) of the Act, when there is no principal offender under Sec. 3(1) of the Act, has no merit. First of all, (even assuming that accused Nos. 1 to 10 are not principal offenders), it is well-known that even asper Explanation 2 to Sec. 108 of Indian Penal Code, “to constitute the offence of abetment it is not necessary that the act abetted should be committed, or that the effect requisite to constitute the offence should be caused.” Illustration (a) therein is also significant which is as follows: “A instigates B to murder C. B refused to do so. A is guilty of abetting B to commit murder.” In other words, the offence of abetment is a substantive one and the conviction of an abettor is, therefore, in no way dependent on the conviction of the principal. (Vide Maruti Dado, (1875) 1 Bombay 15: Sahib Ditta, (1885) PR No.20 of 1885). 10. That apart, Sec. 3(3) of the Act does not simply speak of abetment, but it also speaks of conspiracy. Further Sec. 120-B, I.P.C. which deals with punishment for criminal conspiracy under Sec. 120-A, I.P.C. is also one of the section under which the above said accused and all other accused are charged. From what has been found by the Designated Court in its order, as stated above, it is clear that at least there is a grave suspicion regarding the above said conspiracy among all the accused, including accused Nos. 11 and 12. 11. Even generally, as already indicated, the Supreme Court has held that even if there is grave suspicion of the offences charged with, discharge cannot be granted. 11 and 12. 11. Even generally, as already indicated, the Supreme Court has held that even if there is grave suspicion of the offences charged with, discharge cannot be granted. Here it may also be pointed out that Sec. 14(3) of the Act runs as follows: “Subject to the other provisions of this Act, a Designated Court shall for the purpose of trial of any offence, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session so far as may be in accordance with the procedure prescribed in the Code for the trial before a Court of Session.” Further in Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijja, A.I.R. 1990 S.C. 1962 the Supreme Court has also held, based on Sec. 14(3) that the procedure that the Designated Court must follow at the trial is the one prescribed in the Code for the trial of cases before the Sessions Court, and that if there is any provisions in the Act which is not inconsistent with the procedure stipulated in the Code then the procedure in the Act shall prevail. 12. The net result is, there is no scope at all for exercising my jurisdiction under Art. 226 of the Constitution of India and hence the writ petition is not admitted, but dismissed in limine.