K.T Thomas, J.— The military action “Operation Blue Star” carried out in the Golden Temple complex at Amritsar had a series of aftermaths involving many horrendous incidents. In one such incident a leader of the Sikh community, Sant Harcharan Singh Longowal, was shot dead from close range on the evening of 20-8-1985. Appellant Gian Singh and 6 others were arraigned before a Designated Court under the Terrorist and Disruptive Activities (Prevention) Act, 1985 (for short “TADA, 1985”) for various offences connected with the said murder. The Special Judge of the Designated Court convicted the appellant of a number of offences including Section 3(2)(i) of TADA, 1985. He was sentenced to death for the said offence as the Special Judge noticed that no other alternative sentence was prescribed for that offence under TADA, 1985. However, lesser sentences were awarded for the remaining offences of which too the appellant was convicted including Section 302 read with Section 34 IPC. This appeal was filed by the appellant as of right since it is so provided under Section 16 of TADA, 1985. The remaining 6 accused in the array of the indicted persons were found not guilty of any offence and hence they were all acquitted. Two others were also shown as participants in the same offences, one Harinder Singh alias Billa (he later died on account of the bullet wounds sustained) and one Jurnail Singh (he is now a proclaimed offender as his whereabouts are still untraced).
2. As the appellant has been in jail for a period exceeding 14 years in connection with this case, his learned counsel seems to be disinterested in canvassing for an acquittal. But he focussed all his efforts to have the sentence brought down to imprisonment for life for the main offence as he feels that the maximum term of fourteen years which the appellant has already spent in jail would help him to get the benefit of a release order from the jail authorities. But the question of sentence need be considered only if his conviction is liable to be upheld because we are dealing with the first appeal which the appellant, as of right, has preferred against his conviction passed by the trial court.
3. The facts which led to the present case can be stated in brief:
The State of Punjab was passing through a tortuous period during the first half of the 1980s. The State as a whole was then a terrorist-infested area where killings of human beings with illegal firearms were a daily occurrence. Sant Harcharan Singh Longowal (hereinafter referred to as Sant Longowal) was the President of the Shiromani Akali Dal which was a widely represented association of the Sikh community. Another association consisting of extremists of the Sikh community had recognised one Jurnail Singh Bhindranwale as the leader. He was supported by another extremist faction called the All-India Sikh Students' Federation (AISSF).
4. The Golden Temple at Amritsar has been the most revered place of worship for Sikhs all over the world. Within the Golden Temple complex is situate a multi-tier edifice called “the Akal Takht” which is regarded as the seat of the Almighty. All important decisions concerning the religious affairs of the community are being adopted at the Akal Takht. It has always been eliciting obeisance from the devotees of the great temple. But during the first half of that decade a lot of extremists under the leadership of Jurnail Singh Bhindranwale had perched inside “the Akal Takht” and army action was resorted to by the Government of India, presumably, to flush out all the illegal occupants therein. The army action so resorted to is now recorded in history as “Operation Blue Star” which caused the magnificent Akal Takht to crumble down and a large number of occupants therein were crushed to death. It happened in June 1984.
5. Sant Longowal was arrested soon after the aforesaid army action and was interned in prison where he remained till 12-3-1985.
6. In the meanwhile efforts were on to mollify the wounded feelings of the Sikh community. An accord was arrived at between the then Prime Minister Rajiv Gandhi and Sant Longowal on 24-7-1985 and a pact was signed on its basis by the aforesaid two leaders.
7. But the followers of Bhindranwale including members of AISSF opposed the said pact as they considered the truce a virtual surrender of Sikh pride to the destroyers of the Akal Takht. They publicly abused the leaders who signed the pact without securing any relief for the Sikh youths lodged in jails and without restoring the Sikh soldiers to their ranks who had impulsively deserted the defence services on hearing the news of the destruction of the Akal Takht.
8. The above was the backdrop of the murderous attack launched on Sant Longowal. According to the prosecution case a criminal conspiracy hatched by some persons to eliminate deceased Sant Longowal and his henchmen for the acts of betrayal of Sikh Panth. They considered it imperative to teach all such betrayers a lesson and terrorise all those who declined to obey the edicts issued by the organisations spearheaded by Jurnail Singh Bhindranwale.
9. On 30-7-1985 an attempt was made on the lives of Sant Longowal and his comrades when they visited the Golden Temple at Amritsar. But the attempt did not succeed due to some unforeseen developments. Though the security cover of Sant Longowal was beefed up consequent on the aforesaid attempt on his life, the determined conspirators were not deterred by any such security measures.
10. The conspirators came to know that Sant Longowal was scheduled to address a meeting on 20-8-1985 at Sherpur Gurudwara. The appellant and his co-assailants were entrusted with the risky task of shooting Sant Longowal and his colleagues. Revolvers and cartridges were supplied to the assailants for achieving the purpose. A motorcycle was also lent to them for swift movement to reach the target at the appropriate opportunity.
11. The meeting at Sherpur Gurudwara started at 3.30 p.m but Sant Longowal addressed the audience around 5.30 p.m As he was closing the speech, the appellant and Jurnail Singh opened fire towards the stage. Some people from the audience made a bold bid to thwart the onslaught. But the assailants continued to shower bullets at the personages on the dais. A number of persons including Sant Longowal sustained serious firearm injuries.
12. The bodyguard of Sant Longowal, besides other police personnel present, tried to catch the assailants. Though one of them (Jurnail Singh) succeeded in escaping, the appellant and Harinder Singh @ Billa were overpowered and were caught with the illegal firearms in their possession.
13. Sant Longowal was taken to the Civil Hospital at Sangrur and the other injured were removed to different hospitals. Sant Longowal succumbed to his injuries at 8.40 p.m on the same night.
14. The Designated Court acquitted all the remaining accused who were tried along with the appellant, on the premise that the prosecution did not succeed in proving that they were members of the criminal conspiracy. Regarding the appellant the Designated Court found that he shared the common intention to murder Sant Longowal and his comrades and they fired the revolvers in pursuance thereof. Hence the conviction and sentence.
15. There is no dispute that Sant Longowal and the other deceased were shot at while they were attending the meeting at Sherpur Gurudwara on the evening of 20-8-1985. There is also no dispute that the appellant and Harinder Singh alias Billa were overpowered by the people at the same site and they were arrested by the police. So the limited question regarding facts is whether the appellant was one of the assailants and whether he did it in concert with his co-assailants.
16. The occurrence which happened at 5.30 p.m in which Sant Longowal was shot down was witnessed by a large number of persons. A few among them were examined as prosecution witnesses. PW 29 Surinder Singh was a Member of the Legislative Assembly during the relevant time. He was the nephew of Sant Longowal. He said that he too was present at the meeting and narrated the incident and identified the appellant as one of the assailants using a revolver to shoot the persons on the stage. PW 30 Rajinder Singh, PW 34 Karamjit Singh, PW 35 Santosh Singh, PW 40 Joginder Singh, PW 41 Sher Singh and PW 102 Amir Singh were the other eyewitnesses examined by the prosecution.
17. Among the above eyewitnesses PW 34 had sustained injuries while the assailants fired revolvers. PW 40 Joginder Singh was the General Secretary of the Akali Dal District Committee. Both of them narrated that after Sant Longowal completed his speech, purses were presented to him by some people in the audience as contributions towards the movement which Sant Longowal spearheaded. Thereafter “Jaikara” was said (it is the traditional slogan of the Sikh people) and it was then that the appellant opened firing from a distance of 5-6 karamps away from the stage. They and PW 29 Surinder Singh have said that Sant Longowal was dragged backwards to save him from further onslaughts, and one person tried to catch the appellant but he too was shot at by the appellant; thereafter the appellant took to his heels and he was chased and intercepted. When the police came, they took charge of the appellant and they also took into custody the revolver from the hands of the appellant. PW 41 Sher Singh was the bodyguard of Sant Longowal. It was PW 102 Amir Singh who succeeded in catching the appellant after the chase.
18. The Designated Court has considered the evidence of the aforesaid witnesses in detail. Nothing has been shown to us for doubting the correctness or the truth of their version. Therefore we are also in agreement with the finding of the Designated Court that the appellant was one of the assailants, in concert with the other assailants, who used firearms aiming at Sant Longowal and his associates who were present at the meeting.
19. We have now to consider whether the aforesaid acts of the appellant would fall within the ambit of “terrorist act” in Section 3 of the TADA Act, 1985. We extract Section 3(1) here:
“3. (1) Whoever with intent to overawe the Government as by law established or to strike terror in the people or any section of the people or to alienate any section of the people or to adversely affect the harmony amongst different sections of the people does any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisons or noxious gases or other chemicals or any other substances (whether biological 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 damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community, commits a terrorist act.”
20. The abovesaid sub-section is identically worded with the corresponding sub-section in the TADA Act of 1987 except the added limb in the subsequent Act having the following words:
“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.”
21. Sub-section (2) of Section 3 of the TADA Act, 1985 deals with punishment. It reads thus:
“3. (2) Whoever commits a terrorist act shall,—
(i) if such act has resulted in the death of any person, be punishable with death;
(ii) in any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to term of life and shall also be liable to fine.”
The only difference between sub-section (2) of Section 3 quoted above and its corresponding provision in the TADA Act, 1987 is that the latter provides one more alternative punishment even for the most serious offence i.e “death or imprisonment for life”.
22. In State v. Nalini (1999) 5 SCC 253 a three-Judge Bench of this Court has quoted the dictum laid down in Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602 with approval and concluded thus:
“51. Thus the legal position remains unaltered that the crucial postulate for judging whether the offence is a terrorist act falling under TADA or not is whether it was done with the intent to overawe the Government as by law established or to strike terror in the people etc.”
23. Here, there is overwhelming evidence to show that the main intention of the persons who fired the revolvers towards the podium wherefrom Sant Longowal spoke, was to administer a terror or shock wave to the people at large that the fate of all those who did not fall in line with Bhindranwale and AISSF would be the same as inflicted on the victims of the shoot-out at Sherpur. Sant Longowal was not the only target of the shooters, though perhaps he was one of the principal targets. We have, therefore, no doubt that the said act would fall within the ambit of Section 3(1) of the TADA Act, 1985.
24. It does not require much discussion to concur with the conviction passed on the appellant for offences under Section 302 read with Section 34 IPC as well. As pointed out earlier, learned counsel for the appellant did not address any arguments regarding that aspect as he has focussed solely on the extent of sentence by pleading that it should not go beyond imprisonment for life.
25. We have extracted Section 3(2) of the TADA Act, 1985 above. It could be discerned therefrom that the only sentence which the sub-section permitted for awarding is death penalty in case the terrorist act resulted in the death of any person. It must be pointed out that TADA Act, 1985 remained in force only for a period of 2 years starting from 23-5-1985. In other words, TADA Act, 1985 expired on 22-5-1987 (sic 23-5-1987). Instead of the statute reaching the stage of expiry by the efflux of time, if it was repealed by another statute, nothing would have survived from the repealed statute unless the succeeding enactment incorporates necessary provision to the contrary. This is pithily amplified in Section 6 of the General Clauses Act. But the aforesaid legal implications of repeal of a statute cannot be applied in the case of expiry of a statute, (vide State of Punjab v. Mohar Singh Pratap Singh AIR 1955 SC 84). Normally the proceedings terminate ipso facto with the expiry of the statute. Craies on Statute Law at p. 409 of the 7th Edn. has stated thus:
“As a general rule, and unless it contains some special provision to the contrary, after a temporary Act has expired, no proceedings can be taken upon it, and it ceases to have any further effect. Therefore, offences committed against temporary Acts must be prosecuted and punished before the Act expires, and as soon as the Act expires any proceedings which are being taken against a person will ipso facto terminate.”
26. A Constitution Bench of this Court in S. Krishnan v. State of Madras AIR 1951 SC 301, 52 Cri LJ 1103 has given approval to the above observation of the celebrated author.
27. While dealing with the implications of “ipso facto termination of temporary statutes” another Constitution Bench of this Court in State of Orissa v. Bhupendra Kumar Bose AIR 1962 SC 945, 1962 Supp (2) SCR 380 has held that
“the legislature can, and often does, avoid such an anomalous consequence by enacting in the temporary statute a saving provision, the effect of which is in some respects similar to that of Section 6 of the General Clauses Act”.
28. Incidentally it has to be pointed out that in the expired statute i.e TADA Act, 1985 there is a saving clause which is embodied in Section 1(3) which mandates for a different outflow even after the expiry of the Act. The sub-section reads thus:
“(3). It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint and shall remain in force for a period of two years from the date of its commencement, but its expiry under the operation of this sub-section shall not affect—
(a) the previous operation of, or anything duly done or suffered under, this Act or any rule made thereunder or any order made under any such rule, or
(b) any right, privilege, obligation or liability acquired, accrued or incurred under this Act or any rule made thereunder or any order made under any such rule, or
(c) any penalty, forfeiture or punishment incurred in respect of any offence under this Act or any contravention of any rule made under this Act or of any order made under any such rule, or
(d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid,
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if this Act had not expired.”
29. The effect of operation of the above sub-section is that in spite of the expiry of TADA Act, 1985 on 22-5-1987 all liabilities, penalties or punishments to which a person has already become liable in respect of any offence under the said Act would continue to chase him as though the said Act remains in force. Of course it is only for the limited purpose of such continuity that Parliament wanted the legal fiction to operate that the Act would still continue in force.
30. If the outflow of TADA Act, 1985 had continued as such without any succeeding legislation for covering the same subjects there would not, perhaps, have been any problem. But some difficulty has been posed when TADA Act, 1987 was enacted as its provisions substantially cover the same area as in the former legislation prescribing punishments for identical offences. In TADA Act, 1985 (during the subsistence of which the offence in this case was committed) the extreme penalty, without any alternative, has been provided for the most serious offence under Section 3(2). But in the succeeding legislation the harshness of the sentence has been diluted for the same offence by providing an alternative option to the court to impose.
31. If the position was just in the reverse order i.e the latter Act contained harsher sentence and the former Act contained a lesser sentence the prohibition embodied in Article 20(1) of the Constitution that no person shall “be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence” would have come to the rescue of the offender. But the offender (who is liable to be convicted for the same offence, had it been committed after the coming into force of the subsequent TADA Act, 1987) could have been punished with a sentence of imprisonment for life, because such an alternative is provided in that enactment.
32. What is the jurisprudential philosophy involved in the second limb of clause (1) of Article 20 of the Constitution?
No person shall be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of commission of the offence.
It is a fundamental right of every person that he should not be subjected to greater penalty than what the law prescribes, and no ex post facto legislation is permissible for escalating the severity of the punishment. But if any subsequent legislation would downgrade the harshness of the sentence for the same offence, it would be a salutary principle for administration of criminal justice to suggest that the said legislative benevolence can be extended to the accused who awaits judicial verdict regarding sentence.
33. In the above context a reference to Section 25 of TADA Act, 1987 will provide added strength to the above proposition. Section 25 reads thus:
“25. Overriding effect.—The provisions of this Act or any rule made thereunder or any order made under any such rule shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument having effect by virtue of any enactment other than this Act.”
34. There is inconsistency between the sentencing scope in Section 3(2) of TADA Act, 1985 and in the corresponding provision in TADA Act, 1987. The expression “in any enactment other than this Act” would, under Section 25, encompass even an enactment which, though expired by the efflux of time, continues to operate by virtue of any saving clause. Accordingly, the exclusivity of the extreme sentence contained in Section 3(2) of TADA Act, 1985 must stand superseded by the corresponding benevolent provision in TADA Act, 1987. It is a permissible course and the express prohibition contained in Article 20(1) of the Constitution is not a bar for resorting to the corresponding sub-section in TADA Act, 1987.
35. The result of the aforesaid discussion is that the court gets jurisdiction to award the alternative sentence of imprisonment for life as for the offence under Section 3(1) of TADA Act, 1985. On the fact situation of this case and in view of the distance of time, particularly in view of the long period of 13 (sic 14) years during which the appellant was languishing in jail under the spell of death penalty, we are persuaded to award the lesser alternative i.e imprisonment for life.
36. We, therefore, confirm the conviction of the appellant of the offences under which he stands convicted by the Designated Court as per the impugned judgment. But the sentence as for the offence under Section 3(2) of TADA Act, 1985 is altered to imprisonment for life. The other sentences will remain undisturbed and will run concurrently with the main sentence.