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TMI Blog2009 (7) TMI 1333X X X X Extracts X X X X X X X X Extracts X X X X ..... on over telephone that on the previous day i.e. on 1.9.1991 at about 7.30 p.m. one Dinanath Agarwalla Naohalia was taken away in a Maruti car by some unknown persons and this information was entered vide General Diary Entry No. 19 dated 2.9.1991. 4. Thereafter, Prabhat Gogoi, Officer-in-Charge along with his staff reached the place of occurrence for investigation and subsequently an FIR was lodged by him. 5. On conclusion of the investigation, charge- sheet dated 25.9.2001 was filed under Sections 365/302/34 of the Indian Penal Code read with Sections 3(2)(i) and 3(5) of the TADA (P) Act against the appellant and Premodhar Gogoi. 6. Thereafter, on 10.1.2003, the learned Designated Court, Assam framed charges against the appellant under Section 302 of the Indian Penal Code and Section 3(5) of the TADA(P) Act. In the Trial evidence was adduced and the appellant was examined under Section 313 of the Code of Criminal Procedure and ultimately by the impugned judgment dated 11.7.2007 the appellant was convicted by the learned Designated Court under Section 3(2)(i) of the TADA(P) Act and was sentenced as stated hereinabove. 7. Mr. P.K. Ghosh, learned senior counsel appeari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of P.W.1 is that his elder brother was kidnapped from their house. 15. But the evidence of the prosecution is that Dinanath Agarwalla was kidnapped from the pan shop of Narayan Dey (P.W.2). 16. P.W.2- Narayan Dey in his evidence stated that police took his signatures on a prepared statement to the effect that the deceased was killed on the previous day though he had no knowledge about the killing of Dinanath Agarwalla. P.W.2 was declared hostile and was cross-examined by the prosecution. In his cross-examination also he stuck to his evidence given in Examination-in-Chief. In cross-examination he deposed that he did not state before the I.O. that Dinanath came to his shop for taking pan and one Maruti car arrived near his shop and accused persons while coming out of the car had some discussion with Dinanath and he was taken in the car which was driven towards Madhuting. 17. P.W.3- Sushil Mazumdar was also declared hostile and he stated in Chief that Police did not record any statement from him in regard to the death of the deceased. He was similarly cross-examined by the Police and in the cross- examination also he stuck to his original statement and made it very clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aforesaid statement, investigation in the case had already commenced and once investigation commences the FIR is hit by Section 162 Cr.P.C. and no value can be attached to the same. 23. P.W.8- Satyaraj Hazarika merely deposed that he submitted the prayer for accord of necessary prosecution sanction to the then D.G.P of Assam and he also filed certain other documents. He is not a material witness at all. 24. P.W.9 is Dr. N. Sonowal, who conducted postmortem on the dead body of the victim. 25. P.W.10- Bipulananda Choudhury is another police officer, who obtained sanction from D.G.P Assam and submitted the charge sheet against the accused persons. He is also not a material witness. 26. From the above discussions, this Court finds that there is no evidence to connect the appellant with the alleged incident of killing of the victim. 27. Apart from that this Court finds that in Section 313 Cr.P.C. examination of the accused-appellant, the Court has put a question which is totally unfair. Three questions were put to the appellant. The second question is as follows:- Q. No.2 The witnesses deposed that you are a member of ULFA? 28. It does not appear that any wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal 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, or destruction of, property or disruption of any supplies or 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. 31. The provision of Section 3(1) has been construed by this Court in several cases and reference in this connection may be made to the decision of Hitendra Vishnu Thakur and others Vs. State of Maharashtra and others - (1994) 4 SCC 602, wherein learned judges explained the ambit of a terrorist act which has not been defined in detail under TADA(P) Act. Sub-section (h) of Section 2 of the Act defines `terrorist act' to mean the same thing as assigned to it in sub-section (i) of Section 3. 32. Section 3(1) of the said Act is therefore very vital for understanding the true meaning and purport of terrorist acts. In paragraph 5 of Hitendra Vishnu Thakur (supra), at page 617 of the report, Dr. Justice A.S. Anand (as His L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before charge- sheeting an accused for an offence under TADA. The stringent provisions of the Act coupled with the enhanced punishment prescribed for the offences under the Act make the task of the Designated Court even more onerous, because the graver the offence, greater should be the care taken to see that the offence must strictly fall within the four corners of the Act before a charge is framed against an accused person. Where the Designated Court without as much as even finding a prima facie case on the basis of the material on the record, proceeds to charge-sheet an accused under any of the provisions of TADA, merely on the statement of the investigating agency, it acts merely as a post office of the investigating agency and does more harm to meet the challenge arising out of the `terrorist' activities rather than deterring terrorist activities. The remedy in such cases would be worse than the disease itself and the charge against the State of misusing the provisions of TADA would gain acceptability, which would be bad both for the criminal and the society. Therefore, it is the obligation of the investigating agency to satisfy the Designated Court from the material coll ..... X X X X Extracts X X X X X X X X Extracts X X X X
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