NIRANJAN SINGH KARAM SINGH PUNJABI AND ORS ETC. ETC. v. JITENDRA BHIMARAJ BIJJE AND ORS. ETC. ETC

Citation: [1990] 3 S.C.R. 633

Court: Supreme Court of India

Bench: A.M. AHMADI, N.M. KASLIWAL

Case summary

If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be...

Judgment text

the Judgment of the Court was delivered by ;>---" ' AHMADI, J. These three appeals arise out of the charge levelled by the police against the five petitioners of the a~eve special leave petition under Section 3 of the Terrorists and Disruptive Activities (Prevention) Act, 1987, (hereinafter called 'the Act'), Sections 302, 307 read with Sections 147, 148 and 149 IPC and Section 37 of the Bombay Police Act, 1951, for the murder of one Raju alias Avtar Singh, son of the appellant of Criminal Appeal No. 703/89, and for injuries caused to his companion Keshav Vitthal, the first informant. The facts giving rise to thes. e proceedings are as under: On the afternoon of the 12th July, 1989 when Raju and his companion Keshav were proceeding on a motor-cycl~ at about 3. 00 p. m. they were intercepted by the accused Jitendra and one another known as a wrestler. Following some altercation and heated exchange of words between them, the other three accused persons arrived at the spot.

Two of them were armed with knives and the third possessed an iron-rod. On seeing them Keshav who was on the pillion seat took to his heels whereupon Raju who was in the driver's seat abandoned the ·motor-cycle and ran in another direction. Two of the accused persons ran after Raju while the others including the wrestler chased Keshav. On being over-taken accused Vijay gave a knife blow on the chest of Keshav and his companion Santosh ciealt blows with the iron-rod. Thereafter all the three fled from the scene of occurrence. The other two who had chased Raju are alleged to have killed him as he. was found lying in an unconscious condition on the road. Both the injured were removed to the hospital. Raju succumbed to the injuries soon after reaching the hospital. Keshav, however, responded to medical treatment and has survived to give evidence. On the same day at about 5. 30 p. m. the first information report was lodged by the injured Keshav.

On the basis thereof an entry was made in CR No. 138 of 1989 and a case under Section 302 and 307 read with Sections 147, 148 and 149 IPC and Section 37 of the Bombay Police Act was registered. The accused were arrested on 15th July, 1989 and were taken on remand for 9 days which period was extended upto 29th July, 1989 on which data the Investigating Officer invoked Section 3 of the Act. On 3rd August, 1989 the accused moved an application in the Designated Court, Jalgaon, for bail, inter alia, contending that the provisions of the Act had been wrongly and maliciously invoked. The said application was heard and decided by the Designated Court on 2nd September, 1989 which took the view that Se' ,- It is well-settled that statutes which impose a term of imprisonment for what is a criminal offence under the law must be strictly construed. In Usmanbhai Dawoodbhai Memon & Ors. v.

State of Gujarat, [1988) 2 SCC 271 this Court in paragraph 15 of the judgment observed as under: "The Act is an extreme measure to be resorted to when the police cannot tackle the situation under the ordinary penal law. The intendment is to provide special machinery to combat the growing menace of terrorism in different parts of the country. Since, however, the Act is a drastic measure, it should not ordinarily be resorted to unless the government's law enforcing machinery fails. " To put it differently the ratio of the decision is that the provisions of the Act need not be resorted to if the nature of the activities of the accused can be checked and controlled under the ordinary law of the land. It is only in those cases where the law enforcing machinery finds the ordinary law to be inadequate or not sufficiently effective for tackl- ing the menace of terrorist and disruptive activities that resort should be had to the drastic provisions of the Act.

While invoking a criminal statute, such as the Act, the prosecution is duty bound to show from the record of the case and the documents collected in the course of investigation that facts emerging therefrom prima facie constitute an offence within the letter of the law. When a statute provides special or enhanced punishments as compared to the punishments prescribed for similar offences under the ordinary penal laws of the country, a higher responsibility and duty is cast on the Judge to make sure there exists prima facie evidence for supporting the charge levelled by the prosecution. Therefore, when a law visits a person with serious penal consequences extra care must be taken to ensure that those whom the legislature did not intend to be covered by the express language of the statute are not roped in by stretching the language of the law.

But that does not mean that the judicial officer called upon to decide whether or not a case for framing a charge under the Act is made out should -___;... adopt a negative attitude. He should frame a charge if the prosecution shows that the material placed on record and the documents relied on give rise to a strong suspicion of the accused having committed the crime alleged against him. We may now proceed to apply the law stated above to the facts of the present case. The prosecution case against the five accused persons is that they formed an unlawful assembly, killed Raju and injured keshav 'with intent to strike terror in the people or any section of the people' i. e. the residents of the locality, by the use of lethal weapons such as knives and iron-rods and thereby committed offences punishable under Section 3(1) of the Act read with the offences under the Penal Code and the Bombay Police Act.

When the complaint was lodged by the injured Keshav on 12th July, 1989 no offence under ~. section 3(1) of the Act was registered. The offence under section 3(1) of the Act was introduced for the first time on 29th July, 1989. That means that between 12th July, 1989 and 29th July, 1989 the Investigating Officer collected evidence which enabled him to register an offence · under section 3(1) of the Act. When the first bail application was disposed of on 2nd September, 1989, the Designated Court came to the conclusion that prima facie section 3(1) of the Act had no application. In taking that view the Designated Court examined the statements of witnesses on which reliance was placed to support the prosecution case that sectiort3(1) of the Act was attracted. It may be stated that accused Santosh Rathod runs a cycle repair shop. On the /day previous to the occurrence the deceased Raju had gone to the cycle shop as his tube was punctured.

At that time accused Jitendra and some others were present at the cycle shop and in their presence accused Jitendra is alleged to have stated as under: "Presently Raju and Keshav are having dominance in the town. We would become dadas of the town upon taking lives out of them. Then there would not be any rival to us in this town. Upon commission of murder of Raju and Keshav on account of terror the people would be scared. " This is unfolded in the statements of Raju Narain, Sukharam Shinde and Bhau Saheb. Thus according to the prosecution the genesis of the ~ crime was to gain supremacy in the underworld by eliminating the members of the rival gang. Ram Lokhande speaks about the incident in question and states that he had heard the assailants stating that on the elimination of Raju and Keshav they will become the Dadas and no one will dare to raise his voice against them. Bhika spoke about the previous incident on the same day at about 11. 30 a. m. which shows 1.

_that there was rivalry between the two gangs. Mr. Masodkar, the learned counsel for the State Government, as well as the appellant of criminal Appeal No. 703/89, therefore, contended that the acts of violence were perpetrated with intent to strike terror in the people at large and in particular the residents of the locality in which the crime was committed. Our attention was also drawn to certain statements of witnesses to the effect that some of the accused persons were related to the members of the Shiv Sena party. The Designated Court came to y the conclusion that the material placed before it and the statements recorded by the Investigating Officer did not disclose the commission of an offence under Section 3(1) of the Act. According to the Designated Court the intention of the accused persons was not to strike terror in the people or a section of the people but only to eliminate Raju and Keshav with a view to gaining supremacy in the under- -~ world.

The learned Judge presiding-over the Designated Court then proceeds to add as under: "True it is that few people might have been terror-striken and terror might have been the fall out of naked act, but to strike the terror amongst people was not the object of this naked act. If at all people are getting terror-striken, it is those few people who live by the crime and not the peopley law abiding majority of citizens. Going by these statements there is nothing more to this crime than a strife between two warring factions staking claim to the supremacy of underworld. " ~ The learned Judge also came to the conclusion that there was nothing -41 on record to show that the Government's law enforcing machinery had .. _ failed and it had become necessary to resort to the drastic provisions of the Act with a view to combating the menace of terrorism.

We have carefully considered the statements of the witnesses on which the prosecution relies in support of its contention that the accused had committed an offence under section 3(1) of the Act. We think that the Designated Court was right in coming to the conclusion that the intention of the accused persons was to eliminate Raju and Keshav for gaining supremacy in the underworld. A mere statement to >--'the effect that the show of such violence would create terror or fear in the minds of the people and none would dare to oppose them cannot constitute an offence under section 3(1) of the Act. That may indeed NIRANJAN SINGH v. J. B. BIJJE [AHMAD! , J. ] 647 be the fall out of the violent act but that cannot be said to be the intention of the perpetrators of the crime. It is clear from the statement extracted earlier that the. intention of the accused persons was to eliminate.

the rivals and gain supremacy in the underworld so that they may be known as the bullies of the locality and would be dreaded as such. But it cannot be said that their intention was to strike terror in the people or a section of the people and thereby commit a terrorist act. It is clear that there was rivalry between the party of the accused on the one hand and Raju and Keshav on the other. The former desired to gain supremacy which necessitated the elimination of the latter. With that in view they launched an attack on Raju and Keshav, kill~d the former and injured the latter. Their intention was clearly to eliminate them and not to strike terror in the people or a section of the people. It would have been a different matter if to strike terror some innocent persons were killed. In that case the intention would be to strike terror and the killings would be to achieve that objective.

In the instant case the intention was to liquidate Raju and Keshav and thereby achieve the objective of gaining supremacy in the underworld. The consequence of such violence is bound to cause panic and fear but the intention of committing the crime cannotbe said to be strike terror in the people or any section of the people:· We are, therefore, of the view that the Designated Court was fully justified in taking the view that the material placed on record and the documents relied on did not prima facie disclose the commission of the offence punishable under section 3(1) of the Act. It was next contended by the learned counsel for the State of Maharashtra that under section 12(1), when trying the offence under the Act, the Designated Court was entitled to try any other offence \_,· with which the accused were charged at the same trial since the offences punishable under the Penal Code and the Bombay Police Act were committed in the course of the same incident.

Section 12(1) no doubt empowers the Designated Court to try and offence punishable under any other statute along with the offence punishable under the Act if the former is connected with the latter. That, however, does not mean that even when the Designated Court comes to the conclusion that there exists no sufficient ground for framing a charge against the accused under section 3(1) of the Act it must proceed to try the accused for the commission of offences under other statutes. That would tantamount to usurping jurisdiction. Section 18, therefore, in terms provides that where after taking cognizance of any offence the Designated Court is of the opinion that the offence is not triable by it, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for the trial of such offence to any court having jurisdiction under the Code. Therefore, when the Designated Court 1.

_ ~ came to the conclusion that there was no prima facie evidence to frame a charge under section 3(1) of the Act, it was justified in transferring the case to the Court of Sessions, Ahmadnagar, which alone had jurisdiction under the Code. Once the Designated Court came to the conclusion that the evidence was not sufficient to frame a charge under section 3(1) of the Act, the Designated Court had no alternative but to resort to Section 18 and transfer the case to the competent court under the Code. We, therefore, do not see any merit in the contention of the ~· learned counsel for the State of Maharashtra that even after the Degisnated Court came to the conclusion that-no ground was made out under section 3(1) of the Act, it was duty bound by virtue of section 12(1) of the Act to proceed with the trial for the other offences under the Penal Code and the Bombay Police Act.

We think the course adopted by the Designated Court in transferring the case to the -- Sessions Court in clearly in keeping with section 18 of the Act. 0 Before we part we may state that Mr. Lalit the learned counsel for the accused tried to urge before us that the provisions of the Act were intended to deal with political terrorism intended to undermine the security of the State and not to ordinary law and order problems. We do not consider it necessary to go into this larger question because, in our opinion, the Designated Court was right in coming to the con- )'. ~ clusion that this was a case of inter-gang rivalry not attracting Section 3( 1) of the Act. In the above view that we take all the three appeals fail and are dismissed. Mr. Lalit the learned counsel for the accused stated that since the High Court has directed expeditious disposal of the case he would not press the special leave petition directed against ·the High - Court's order refusing bail.

In view of the said statement, the Special ... • leave petition No. 2459/89 will stand disposed of as not pressed. We may, however, state that the Sessions Court to which the case stands transferred should endeavour to complete the trial as early as possible, preferably within four months from the date of receipt of this Court's order. T. N. A. Petition disposed of.