Rangku Dutta Alias Ranjan Kumar Dutta v. State Of Assam .

A.K Ganguly, J.— Heard the learned counsel for the parties. This is a statutory appeal under Section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as “the said Act”) impugning an order dated 10-9-2009 passed by the Designated Court TADA. The learned counsel appearing for the sole appellant has impugned the judgment 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.

2. The material facts of the case are these: that an FIR was lodged on 6-11-1993 by one Ajit Kumar Sarma, Officer in charge of Bihpuria Police Station against several persons including the appellant. Of the four accused persons, no charges were framed against Moni Pathak. Insofar as Bhaben Gogoi alias Bikram was concerned, he was acquitted by the Designated Court and Indreswar Hazarika alias Babul Handique died during the pendency of the proceedings before the Designated Court. Only Rangku Dutta alias Ranjan Kumar Dutta was convicted and is the appellant before us.

3. The FIR which has been lodged on 6-11-1993 runs as follows:

“I beg to report that on 5-11-1993 at 2150 hrs while SI AQM Zahingir I/C, Dholpur O.P along with the PSO Hav. Loknath Konwar and other police personnel were informed (sic performing) law and order duty in connection with Debraj Theatre show at Dholpur Circle in open place by the side of hill, some ULFA extremist fired at SI AQM Zahingir and PSO Hav. Loknath simultaneously from a close range behind them and as a result both of them succumbed to injuries.

Earlier to this incident, on 5-10-1993 an encounter took place between the ULFA with Dholpur O.P place and under the leadership of SI AQM Zahingir I/C, Dholpur, O.P where Lakhimpur District ULFA Commander Jogen Gogoi was killed and since then the banned ULFA activists associates of Jogen Gogoi were planning with criminals, conspiracy to liquidate SI AQM Zahingir.

On 5-11-1993 evening the said ULFA activists with the help of Shri Rangku Dutta got identified SI AQM Zahingir and then ULFA extremist, namely, (1) Shri Indreswar Hazarika alias Babul Handique, (2) Shri Nobel Gogoi alias Bikram under the leadership of Shri Moni Pathak alias Debo Pathak taking advantage of darkness attacked simultaneously with firearms and killed SI AQM Zahingir and PSO Hav. Loknath Konwar.

So I request to register a case under Sections 120-B/302 IPC read with Sections 3/4/5 TADA (P) Act, 1987 against the (illegible) ULFA activist and four other associates, I have already taken up the investigation of the case.”

4. On the basis of the FIR, a case being Bihpuria Police Station Case No. 497 of 1993, was initiated under Sections 120-B/302 IPC read with Sections 3/4 and 5 of the TADA (P) Act and the Designated Court vide order dated 31-10-2002 framed charges against the appellant, inter alia, under Sections 120-B/302 of the Penal Code and Section 3(2)(i) of the said Act. Thereafter, the Designated Court by the impugned judgment dated 10-9-2009 passed in TADA Sessions Case No. 116 of 2000 found the appellant guilty of offences punishable under Sections 120-B/302 IPC read with Section 3(2)(i) of the said Act and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 2000, in default, further imprisonment for two months.

5. The learned counsel appearing for the appellant urged that in accordance with the provisions contained under Section 20-A(1) of the said Act, no information about the commission of any offence under the said Act shall be recorded by the police without the prior approval of the District Superintendent of Police.

6. The learned counsel submitted that the said provision under Section 20-A(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.

7. 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, the Commissioner of Police.”

8. 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 SP concerned for registering the case.”

9. From the evidence of PW 11, who is one Sanjit Sekhar Roy, learned counsel stated that the said PW 11 was working on 22-6-2000 as DSP, Headquarter at North Lakhimpur. In his cross-examination, he stated that the occurrence took place on 6-11-1993 and prior to the filing of the ejahar which is the FIR, the written approval of the SP concerned was not obtained and in the ejahar itself, there is no approval of the SP, North Lakhimpur.

10. We have looked into the original FIR, Ext. P-12. In the original FIR, the following endorsement which has been made by Ajit Kumar Sarma is quoted below:

“Received and registered Bihpuria PS Case No. 0497 of 1993 under Sections 120-B/302 IPC read with Sections 3/4/5 TADA (P) Act, 1987 with the approval of SP (I) NL.”

11. It is an admitted position in this case that even though the aforesaid endorsement has been made in the FIR, the SP (I), North Lakhimpur, whose approval is alleged to have been taken by PW 15 Ajit Kumar Sarma has not been examined by the prosecution. Apart from that, in the substantive evidence before the Court, PW 15 Ajit Kumar Sarma has categorically stated that he has not obtained the approval of the SP before registering the case. He rather said that he registered the case and himself took up the investigation of the case, prepared the seizure list and recorded the statement of witnesses and at that point of time, the rank of Ajit Kumar Sarma was that of Sub-Inspector of Police.

12. We have already referred to the evidence of PW 11 who has also deposed that written approval of the SP was not obtained.

13. In the background of these facts, the question is whether in this case the mandatory requirement of Section 20-A(1) was complied with. Attention of this Court has been drawn to certain decisions of the Court wherefrom it appears that there was a controversy and divergence of judicial view as to whether written approval or oral approval is required. The said divergence of judicial view has been set at rest by the judgment of a three-Judge Bench of this Court in State of A.P v. A. Sathyanarayana (2001) 10 SCC 597. A three-Judge Bench of this Court setting out the controversy in this matter ultimately came to hold as follows: (A. Sathyanarayana case (2001) 10 SCC 597)

“8. Having applied our mind to the aforesaid two judgments of this Court, we are in approval of the latter judgment and we hold that it is not the requirement under Section 20-A(1) to have the prior 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 Kalpnath 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.

14. Attention of this Court has also been drawn to a decision rendered in Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602 as to the requirement of the provision of Section 20-A(1). The learned Judges of this Court after considering the 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 SCC para 12 by Dr. A.S Anand, J. (as His Lordship then was), which is set out below: (Hitendra Vishnu case (1994) 4 SCC 602)

“12. Of late, we have come across some cases where the Designated Courts have charge-sheeted and/or convicted an accused person under TADA even though there is not even an iota of evidence from which it could be inferred, even prima facie, let alone conclusively, that the crime was committed with the intention as contemplated by the provisions of TADA, merely on the statement of the investigating agency to the effect that the consequence of the criminal act resulted in causing panic or terror in the society or in a section thereof. Such orders result in the misuse of TADA. Parliament, through Section 20-A of TADA has clearly manifested its intention to treat the offences under TADA seriously inasmuch as under Section 20-A(1), notwithstanding anything contained in the Code of Criminal Procedure, no information about the commission of an offence under TADA shall even be recorded without the prior approval of the District Superintendent of Police and under Section 20-A(2), no court shall take cognizance of any offence under TADA without the previous sanction of the authorities prescribed therein. Section 20-A was thus introduced in the Act with a view to prevent the abuse of the provisions of TADA.”

(emphasis in original)

15. The learned counsel appearing on behalf of the State wanted to urge that in the instant case, the requirement of Section 20-A(1) has been complied with and in support of her submissions, the learned counsel has drawn the attention of this Court to the evidence of PW 4 and PW 6. In his evidence, PW 4, Nitul Gogoi has said that on 21-10-1994 he was working as the DSP, Headquarters at Lakhimpur. On that day, the SP, Lakhimpur handed over the CD of this case to him to hold “remaining part of the investigation of the case”.

16. PW 6, Dr. Nirmal Das also deposed that on 25-9-1999, he was working as the Deputy Superintendent of Police, Headquarters at North Lakhimpur. On that day, SP, Lakhimpur entrusted the investigation of the case in his name and accordingly, he got the CD from RSI.

17. Relying on the aforesaid depositions of PW 4 and PW 6, the learned counsel urged that in the instant case, the investigation was conducted by the DSP, therefore, the requirement of Section 20-A(1) has been complied with. We are unable to appreciate the aforesaid submission.

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., at pp. 404-05, 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 10-A of the Medical Council Act, 1956 (as amended in 1993), and similar other provisions have therefore, been construed as mandatory. A provision requiring ‘not less than three months’ notice' is also for the same reason mandatory.”

We are in respectful agreement with the aforesaid statement of law made by the learned author.

19. So there can be no doubt about the mandatory nature of the requirement of this section. Apart from that, since the said section has been amended in order to prevent the abuse of the provisions of TADA, this Court while examining the question of complying with the said provision must examine it strictly.

20. Going by the aforesaid principles, this Court finds that no information about the commission of an offence under the said Act can be recorded by the police without the prior approval of the District Superintendent of Police. Therefore, the requirement of prior approval must be satisfied at the time of recording the information. If a subsequent investigation is carried on without a proper recording of the information by the DSP in terms of Section 20-A(1), that does not cure the inherent defect of recording the information without the prior approval of the District Superintendent of Police.

21. Whether the Deputy Superintendent of Police is a District Superintendent of Police or not is a different question which we need not decide in this case. But one thing is clear that the requirement of approval must be made at the initial stage of recording the information. If there is absence of approval at the stage of recording the information, the same cannot be cured by subsequent carrying on of the investigation by the DSP. Reference in this connection is made to the principles laid down by Lord Denning speaking for the Judicial Committee of Privy Council in Benjamin Leonard MacFoy v. United Africa Co. Ltd. 1962 AC 152, (1961) 3 WLR 1405, (1961) 3 All ER 1169 (PC) Lord Denning, speaking for the unanimous Bench, pointed out the effect of an act which is void so succinctly that I better quote him: (AC p. 160)

“… If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

(emphasis in original)

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.

22. 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 investigating officer in this case (PW 15) had 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.

23. Therefore, having regard to the clear evidence of PW 15, this Court is constrained to hold that even the verbal approval of the authority concerned was not obtained in the case before recording the information. Therefore, the entire proceeding right from the registering 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 requirement of law. We have, therefore, no hesitation in setting aside the impugned judgment of the Designated Court.

24. The appeal is, therefore, allowed. The appellant who is in jail must be set at liberty forthwith, if not required in connection with any other case.