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TMI Blog2011 (5) TMI 902X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment of the designated court (TADA) on various grounds but at the time of arguments, he made emphasis on a particular ground, namely, that in the instant case, the FIR has been recorded in clear violation of the provisions contained under Section 20(A)(1) of the said Act, as a result whereof, the entire proceeding subsequent thereto has been vitiated and this has also vitiated the judgment and order of the designated court. The material facts of the facts are these. That FIR was lodged on 6.11.1993 by one Ajit Kumar Sarma, Office-in-Charge of Bihpuria Police Station against several persons including the appellant. Of the four accused persons, no charges were framed against Moni Pathak. In so far as Bhaben Gogoi @ Bikram was concerned, he was acquitted by the designated court and Indreswar Hazarika @ Babul Handique died during the pendency of the proceedings before the designated court. Only Rangku Dutta @ Ranjan Kumar Dutta was convicted and is the appellant before us. The FIR which has been lodged on 6.11.1993 runs as follows:- I beg to report that on 5.11.93 at 2150 hrs. while SI AQM Zahingir I/C Dholpur O.P. along with the PSO Hav. Loknath Konwar and other police ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )(1) was incorporated by way of an amendment vide Section 9 of Act 43 of 1993. The said amendment came into effect on 23.5.1993 and the FIR was recorded on 6.11.1993. Therefore, at the time when the FIR was recorded, the provision of Section 20(A)(1) was clearly attracted. It will be in the fitness of things that to appreciate the points urged by the appellant, Section 20(A) is set out below: 20-A Cognizance of offence - (1) Notwithstanding anything contained in the Code, no information about the commission of an offence under this Act shall be recorded by the police without the prior approval of the District Superintendent of Police. (2)No court shall take cognizance of any offence under this Act without the previous sanction of the Inspector-General of Police, or as the case may be, Commissioner of Police. Relying on the said section, the learned Counsel for the appellant submitted that from the evidence of PW 15 Ajit Kumar Sarma who recorded the FIR, it is clear that he did not take the approval of the Superintendent of Police before recording the FIR. In his cross-examination, PW 15 clearly stated I did not obtain the approval from the concerned SP for registering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ior approval only in writing. Prior approval is a condition precedent for registering a case, but it may be either in writing or oral also, as has been observed by this Court in Kalpanath Rai case 1997(8) SCC 732 and, therefore, in the case in hand, the learned Designated Judge was wholly in error in refusing to register the case under Sections 4 and 5 of TADA. We, therefore, set aside the impugned order of the learned Designated Judge and direct that the matter should be proceeded with in accordance with law. It is, therefore, clear that approval has to be taken, even if it is an oral approval. Attention of this Court has also been drawn to a decision rendered in Hitendra Vishnu Thakur and Others Vs. State of Maharashtra and Others 1994(4)SCC 602 as to the requirement of the provision of Section 20(A)(1). The learned Judges of this Court after considering various provisions of the said Act held that the requirement of Section 20(A)(1) of TADA was introduced by way of an amendment with a view to prevent abuse of the provisions of TADA. We, therefore, reiterate the principles laid down by this Court in paragraph 12 by Justice Dr. A.S. Anand(as His Lordship then was), which is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mandatory nature, it uses the expression No after the overriding clause. Whenever the intent of a statute is mandatory, it is clothed with a negative command. Reference in this connection can be made to G.P. Singh's Principles of Statutory Interpretation, 12th Edition. At page 404, the learned author has stated: As stated by CRAWFORD: Prohibitive or negative words can rarely, if ever, be directory. And this is so even though the statute provides no penalty for disobedience. As observed by SUBBARAO, J.: Negative words are clearly prohibitory and are ordinarily used as a legislative device to make a statute imperative . Section 80 and Section 87-B of the Code of Civil Procedure, 1908, section 77 of the Railways Act, 1890; section 15 of the Bombay Rent Act, 1947; section 213 of the Succession Act, 1925; section 5-A of the Prevention of Corruption Act, 1947; section 7 of the Stamp Act, 1899; section 108 of the Companies Act, 1956; section 20(1) of the Prevention of Food Adulteration Act, 1954; section 55 of the Wild Life Protection Act, 1972, the proviso to section 33(2)(b) of the Industrial Disputes Act, 1947 (as amended in 1956); section 10A of Medical Council Act, 1956 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay there. It will collapse. We are in respectful agreement with the aforesaid view. Therefore, the evidence of PW 4 and PW 6 do not come to any aid of the State Counsel in the facts of the present case. We are, however, surprised to find that the Designated Court in the impugned judgment has come to a finding that there has been verbal approval from the Superintendent of Police even after noting that the I.O. In this case (PW 15) admitted that he did not obtain approval. It is nobody's case that PW 15 was confronted with the FIR while he was giving his evidence. Therefore, the prosecution in this case has failed to bring on record that verbal approval was obtained. It may be noted that PW 15 has not been declared hostile. Therefore, having regard to the clear evidence of PW 15, this Court is constrained to hold that even verbal approval of the concerned authority was not obtained in the case before recording the information. Therefore, the entire proceeding right from the reigstering of the FIR, filing of the charge-sheet and the subsequent trial is vitiated by a legal infirmity and there is a total miscarriage of justice in holding the trial, ignoring the vital ..... 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