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2011 (5) TMI 902 - SC - Indian Laws


Issues Involved:
1. Compliance with Section 20(A)(1) of the Terrorist and Disruptive Activities (Prevention) Act, 1987.
2. Validity of FIR and subsequent proceedings.
3. Examination of evidence and witness credibility.
4. Legal implications of non-compliance with statutory requirements.

Issue-wise Detailed Analysis:

1. Compliance with Section 20(A)(1) of the Terrorist and Disruptive Activities (Prevention) Act, 1987:
The primary contention raised by the appellant was that the FIR was recorded in violation of Section 20(A)(1) of the said Act, which mandates that no information about the commission of any offence under the Act shall be recorded by the Police without prior approval of the District Superintendent of Police. The provision was incorporated via an amendment effective from 23.5.1993, and the FIR in question was recorded on 6.11.1993. The appellant argued that the mandatory requirement of prior approval was not met, rendering the FIR and subsequent proceedings invalid.

2. Validity of FIR and Subsequent Proceedings:
The FIR was lodged by Ajit Kumar Sarma, Office-in-Charge of Bihpuria Police Station, against several persons, including the appellant. The FIR stated that ULFA extremists, with the help of the appellant, had attacked and killed SI AQM Zahingir and PSO Hav. Loknath Konwar. The designated court framed charges against the appellant under Section 120(B)/302 IPC read with Section 3(2)(1) of the said Act and subsequently found the appellant guilty, sentencing him to life imprisonment and a fine.

3. Examination of Evidence and Witness Credibility:
The appellant's counsel highlighted that PW 15, Ajit Kumar Sarma, admitted in his cross-examination that he did not obtain the approval of the Superintendent of Police before recording the FIR. This was corroborated by PW 11, Sanjit Sekhar Roy, who also stated that no written approval was obtained before filing the FIR. The original FIR contained an endorsement claiming approval from SP(I) NL, but the SP(I), North Lakhimpur, was not examined by the prosecution. The court noted that despite the endorsement, the substantive evidence indicated no approval was obtained.

4. Legal Implications of Non-Compliance with Statutory Requirements:
The court emphasized the mandatory nature of Section 20(A)(1), which starts with an overriding clause and uses prohibitive language, indicating its imperative nature. The court referenced legal principles stating that prohibitive or negative words in a statute are rarely directory and are generally imperative. The court concluded that the requirement of prior approval must be satisfied at the time of recording the information, and any subsequent investigation without proper initial recording does not cure the defect. The court cited the case of Benjamin Leonard MacFoy Versus United Africa Co. Ltd., where it was held that an act that is void is incurably bad and any proceeding founded on it is also void.

Conclusion:
The court found that the mandatory requirement of Section 20(A)(1) was not complied with, as no prior approval, either written or verbal, was obtained before recording the FIR. This non-compliance rendered the entire proceeding, including the FIR, charge-sheet, and trial, legally infirm and a total miscarriage of justice. Consequently, the court set aside the impugned judgment of the Designated Court, allowed the appeal, and ordered the appellant's release unless required in connection with any other case.

 

 

 

 

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