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TMI Blog2014 (7) TMI 1140X X X X Extracts X X X X X X X X Extracts X X X X ..... xercise of the power granting or refusing approval under Section 20-A (1) in its very nature casts a duty upon the officer concerned to evaluate the information and determine having regard to all attendant circumstances whether or not a case for invoking the provisions of TADA is made out. Exercise of that power by anyone other than the designated authority viz. the District Superintendent of Police would amount to such other authority clutching at the jurisdiction of the designated officer, no matter such officer or authority purporting to exercise that power is superior in rank and position to the officer authorised by law to take the decision. If the Statute provides for a thing to be done in a particular manner, then it must be done in that manner alone. All other modes or methods of doing that thing must be deemed to have been prohibited. Section 20-A (1) is mandatory is also no longer res integra having been settled by this Court in Rangku Dutta @ Ranjan Kumar Dutta v. State of Assam [2011 (5) TMI 902 - Supreme Court Of India]. This Court in that case held that since the provision was couched in negative terms, the same is mandatory in nature no matter the statute does not pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In Criminal (TADA) case No.59 of 1995 and 2 of 2000 arising out of C.R. No.32 of 1993 the Designated Court has similarly convicted some of the accused persons who are (appellants before us in Criminal Appeals No.110 of 2009 and 659 of 2009). The State has also assailed in the appeals filed by it the judgment of the Trial Court and sought enhancement of the sentence awarded to those convicted by it in Criminal Appeals No.303-304 of 2009. 3. The facts giving rise to the registration of I.C.Rs. No.32 and 70 of 1993 at Varccha and Surat Railway Police Stations in the State of Gujarat respectively leading to the arrest of those accused of committing the offences and their eventual conviction by the Trial Court have been set out at great length by the said Court below in the two judgments and orders impugned before us. We need not, therefore, recapitulate the entire factual backdrop in which the appellants were tried, found guilty and sentenced except to the extent it is absolutely necessary to do so. Suffice it to say that the two blasts one at Mini Hira Bazar, Varccha Road, Surat and the other at Platform 1, Surat Railway Station took place on 28th January, 1993 and 22nd April, 1993 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and ammunition to be used were kept at different places for use to wreak vengeance against the majority community. The blasts that took place on 28th January, 1993 at Mini Hira Bazar, Varccha Road, Surat and at Surat Railway Station on 22nd April, 1993 were, according to the prosecution, the culmination of the conspiracy hatched by the accused and the efforts made by them including their active participation in the sordid sequence leading up to grievous injuries to several persons including the killing of an innocent child. 6. The prosecution further alleges that investigation into the crime by the Surat Railway Police did not lead to the apprehension of the real culprits. This forced the Director General of Police of the State of Gujarat to constitute an Action Group for inquiry and investigation into the crime. In the course of investigation by the Action Group, one Mushtaq Patel was apprehended on 12th March, 1995 in connection with a case registered in Umra Police Station under the Arms Act. In the course of interrogation the said Mushtaq Patel revealed information relating to the bomb blast at Platform No.1 at Surat Railway Station. This gave the Action Group a break that le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 and 110 of 2009 s. 3(2)(ii) of TADA r/w 120B IPC, 5 of TADA, 307, 326, 325 and 324 r/w 120B IPC, s. 3,4,5 of Explosive Substances Act and 25(1) A of Arms Act. 10 years RI s. 3(2)(i) of TADA r/w 120B IPC, 5 of TADA, s. 302 r/w 120B IPC, s. 3,4,5 of Explosive Substances Act and 25(1) A of Arms Act. 20 years RI 3 Mohamma d Gulam @ Mohamma d Surti A3 92 of 2009 and 110 of 2009 s. 3(2)(ii) of TADA r/w 120B IPC, 5 of TADA, 307, 326, 325 and 324 r/w 120B IPC, s. 3,4,5 of Explosive Substances Act and 25(1) A of Arms Act. 10 years RI s. 3(2)(i) of TADA r/w 120B IPC, 5 of TADA, s. 302 r/w 120B IPC, s. 3,4,5 of Explosive Substances Act and 25(1) A of Arms Act. 20 years RI 4 Mustaq Ibrahim Patel A4 92 of 2009 and 110 of 2009 s. 3(2)(ii) of TADA r/w 120B IPC, 5 of TADA, 307, 326, 325 and 324 r/w 120B IPC, s. 3,4,5 of Explosive Substances Act and 25(1) A of Arms Act. 10 years RI s. 3(2)(i) of TADA r/w 120B IPC, 5 of TADA, s. 302 r/w 120B IPC, s. 3,4,5 of Explosive Substances Act and 25(1) A of Arms Act. 20 years RI 5 Salim Chawal/Ma njro A5 92 of 2009 and 110 of 2009 s. 3(2)(ii) of TADA r/w 120B IPC, 5 of TADA, 307, 326, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o such approval was, however, either sought from or granted by the District Superintendent of police concerned. Approval for recording of the information was instead obtained from the Additional Chief Secretary, Home Department, Government of Gujarat who had no power to grant the same under the Act. So also the purported approval from the Additional Police Commissioner, Surat was of no legal effect as the power to grant such approval vested only in the District Superintendent of Police and could not be exercised by the Additional Commissioner of Police or anyone holding an equivalent rank. The power to grant approval being a sina qua non for recording of any information about the commission of any offence under the Act, absence of such approval was according to Mr. Sushil Kumar sufficient by itself to vitiate any trial that was held in breach of the said provision. Reliance in support of that submission was placed by Mr. Kumar upon several decisions of this Court including one in Aniruddhsinhji Jadeja & Anr. v. State of Gujarat (1995) 5 SCC 302 to which we shall presently turn. It was contended that the conviction and sentence of the appellants ought to be set aside not only becaus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . No.32 of 1993, a request was made by P.C. Pandey Police Commissioner, Surat to the Home Department, Government of Gujarat for re-application of the provisions of TADA. The Police Commissioner pointed out that a Russian made hand grenade was used in the blast. Approval for re-application of TADA provisions was pursuant to the said request granted by the Additional Chief Secretary, Home Department, Government of Gujarat on 12th May, 1995 and intimated to the Additional Commissioner of Police, Surat. In his letter dated 8th May, 1995, the Police Commissioner, Surat City sought approval for reintroduction of TADA provisions in the following words: "In the offence registered at Varacha Police Station, explosion was done by a Russian made grenade which was revealed when accused were arrested in Surat Railway P.St. O. Reg. No.I 60/93. Hence it is required that in Varacha Police Station I O.Reg. No. 32/93 sections of 302, 307, 324, 326, 120(B) of I.P.C. and Sections 3,4,5 of Explosives Substances Act and Sections 3 and 5 of Tada Act are required to be added. Hence sanction to add Sections of Tada may be given. Yours faithfully, (P.C.Pande) Police Commissioner Surat City" 12. Approval ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of TADA had already been introduced with the approval of the Additional Police Commissioner, Range 2, Surat City, the Government appears to have been approached for grant of approval for introduction of the TADA in C.R. No.70 of 1993 which approval was granted by the Additional Chief Secretary, Home Department and conveyed to the designated court by the Assistant Police Commissioner, G Division, Surat City in terms of his letter dated 12th May, 1995. The relevant portion of the letter conveys the Additional Chief Secretary, Home Department's approval for introduction of the TADA. It reads as under: "K.K. Chudasma (I.O) Assistant Police Commissioner Surat City "G" Division reports that:- Sanction of Additional Chief Secretary Home Department has been received vide Fax Message No./ V2/ATK/2893/2768 Home Department, Block No.2, Sardar Bhavan, Sachivalaya, Gandhinagar dt. 15.4.95 has been received with the signature of Section Officer Home Department (Special) for application of Sections of TADA Act in Surat Railway Police Station I.O. Reg. No.70/93 registered u/sec 307, 326, 324, 427, 120(B) of IPC and u/sec. 3, 4, 5 of Explosive Substances Act. Sanction letter Fax message is encl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r General of Civil Aviation and Ors. (2011) 5 SCC 435, this Court declared that even senior officials cannot provide any guidelines or direction to the authority under the statute to act in a particular manner. 18. Secondly, because exercise of the power vested in the District Superintendent of Police under Section 20-A (1) would involve application of mind by the officer concerned to the material placed before him on the basis whereof, alone a decision whether or not information regarding commission of an offence under TADA should be recorded can be taken. Exercise of the power granting or refusing approval under Section 20-A (1) in its very nature casts a duty upon the officer concerned to evaluate the information and determine having regard to all attendant circumstances whether or not a case for invoking the provisions of TADA is made out. Exercise of that power by anyone other than the designated authority viz. the District Superintendent of Police would amount to such other authority clutching at the jurisdiction of the designated officer, no matter such officer or authority purporting to exercise that power is superior in rank and position to the officer authorised by law t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Chief Secretary and asked for permission to proceed under TADA. Why? Was it because he was reluctant to exercise jurisdiction vested in him by the provision of Section 20-A(1)? This is a case of power conferred upon one authority being really exercised by another. If a statutory authority has been vested with jurisdiction, he has to exercise it according to its own discretion. If the discretion is exercised under the direction or in compliance with some higher authority's instruction, then it will be a case of failure to exercise discretion altogether. In other words, the discretion vested in the DSP in this case by Section 20-A(1) was not exercised by the DSP at all." 21. This Court relied upon the decision in Commissioner of Police v. Gordhandas Bhanji AIR 1952 SC 16 where the Commissioner of Police had at the behest of the State Government cancelled the permission granted for construction of a cinema in Greater Bombay. The order passed by the Commissioner was quashed on the ground that the authorities concerned had vested the power to cancel in the Commissioner alone who was bound to exercise the same himself and bring to bear on the matter his own independent and unfettered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re no matter the statute does not provide any penalty for disobedience. This Court observed: "18. It is obvious that Section 20-A(1) is a mandatory requirement of law. First, it starts with an overriding clause and, thereafter, to emphasise its 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 Edn." 24. Relying upon Ahmad Umar Saeed Sheikh v. State of U.P. (1996) 11 SCC 61, this Court has in Ashrafkhan @ Babu Munnekhan Pathan and Anr. v. State of Maharashtra (2012) 11 SCC 606 not only held that the approval given by the Chief Secretary (Home Department) of the State Government was not a sufficient compliance with Section 20-A (1) but also that the difficulty arising out of it was not curable under Section 465 of the Code. This Court observed: "34. Section 465 of the Code, which falls in Chapter 35, covers cases triable by a Court of Session also. Hence, the prosecution can take shelter behind Section 465 of the Code. But Section 465 of the Code shall not be a panacea fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 20-A (1) in the statute book making approval of the competent authority unnecessary has not impressed us. It is true that the two incidents had taken place and cases registered regarding the same under TADA before Section 20-A (1) came on the statute book, but the fact remains that the provisions of TADA were removed from the reports pursuant to the recommendations of the Review Committee. By the time fresh evidence came to light requiring re-introduction of the provisions of the Act approval for recording information regarding commission of offences under TADA, had become necessary. The fact that such approval was considered necessary even by the investigating agency and was prayed for, only shows that the authorities were aware of the requirement of law and had consciously attempted to comply with the said requirement no matter by applying for such approval to an authority not competent to grant the same. 28. Mr. Yashank Adhyaru next argued that even if the provisions of TADA were not available against the appellants the prosecution could still succeed in sustaining the conviction of the appellants under IPC and the Explosive Substances Act. That would indeed be so, provided ..... X X X X Extracts X X X X X X X X Extracts X X X X
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