Kartar Singh v. State Of Punjab .

Editor's Introductory Note

The petitioners challenged the constitutional validity of the Terrorist Affected Areas (Special Courts) Act (No. 61 of 1984), the Terrorist and Disruptive Activities (Prevention) Act, 1985 (No. 31 of 1985) and the Terrorist and Disruptive Activities (Prevention) Act, 1987 (No. 28 of 1987) and Section 9 of the Code of Criminal Procedure (U.P Amendment) Act, 1976 (U.P Act No. 16 of 1976) by which the Legislative Assembly of Uttar Pradesh has deleted Section 438 of the Code of Criminal Procedure as applicable to the State of Uttar Pradesh.

Three judgments have been delivered in this case, the leading judgment authored by Pandian, J. and two separate judgments, one by K. Ramaswamy, J. and the other by Sahai, J.

In the certified copy of the judgment of Pandian, J. the last page shows the same to have been signed by all the five learned Judges who constituted the Bench, that is, signed also by K. Ramaswamy, J. and Sahai, J. who in their separate judgments have dissented on certain aspects. To our query on this aspect addressed to the respective Hon'ble Judges, Justice Ramaswamy has stated : “The said sheet supplied by the Court without our endorsement is not correct one. I have written therein in my language that I agree with the conclusions except on the issues I dealt with in the judgment”; and the P.S to Justice Sahai, as directed by his Lordship, conveyed : “the judgment of Hon'ble Mr Justice S.R Pandian was signed by Hon'ble Mr Justice R.M Sahai as well but it was mentioned therein that he is concurring with Hon'ble Mr Justice S.R Pandian except on the matters dealt by him.” The position in the certified copy that both Justice Ramaswamy and Justice Sahai also signed the leading judgment by Justice Pandian must therefore be understood in the light of the above clarifications received.

Ramaswamy, J. in his separate judgment has dissented from the majority judgment in respect of constitutionality of Section 9(7), and Section 15 of TADA Act. On the question of the High Courts' jurisdiction under Article 226 to entertain application for bail of persons indicted under the TADA Act, Ramaswamy, J., has adopted a different approach. Sahai, J. also while generally agreeing with the majority view, has dissented on the aspect of constitutionality of Section 15. He has also taken a different stand from the majority on Section 19 (regarding appeal direct to Supreme Court). He has also given an opinion in respect of validity of Section 5 of TADA Act on which other judges have expressed no opinion. According to him the legislative competence for enacting TADA Act is to be found in Entry 1 of List III and not Entry 1 of List II. The Court unanimously declared Section 22 of the TADA Act, 1987 as invalid.

B. Terrorist and Disruptive Activities (Prevention) Act, 1985 — Terrorist and Disruptive Activities (Prevention) Act, 1987 — Terrorist Affected Areas (Special Courts) Act, 1984 — Held, per curiam, Parliament competent to enact the said Acts — Per majority, K. Ramaswamy, J. concurring, Acts covered by Art. 248 r/w List I Entry 97 and not by List II Entry 1 of Sch. VII — Per majority, terrorist and disruptive activities are not merely virulent form of disruption of public order within List II Entry 1 but are threat to the very existence and sovereignty of the country — Acts therefore also covered by ‘Defence of India’ under List I Entry 1 — Per Sahai, J., TADA Act does not fall under List II Entry 1 but, falls under List III Entry 1 of Sch. VII — Concept of terrorism is different from public order — Constitution of India, Sch. VII List III Entry 1, List II Entry 1 & List I Entries 1 & 97 and Arts. 245, 246 and 248

C. Constitution of India — Sch. VII List II Entry 1 — ‘Public order’ — Denotes disorders of lesser gravity having impact within the State — Activities of more serious nature which threaten the security and sovereignty of the country as a whole fall within List I Entry 1 or within residuary provisions of Art. 248 r/w List I Entry 97 (Per majority)

D. Constitution of India — Sch. VII List III Entry 1 — Scope — Legislative competence of Parliament — ‘Criminal Law’ — Meaning of — Includes law relating to terrorist and disruptive activities — If the Act does not pertain to ‘public order’ referred to under List II Entry 1, Parliament will have competence under List III Entry 1 — ‘Public order’ under List II Entry 1 is different from terrorism — Hence Parliament and not the State legislature competent to enact law relating to terrorist and disruptive activities — Words and phrases (Per Sahai, J.)

Per majority

The Terrorist Affected Areas (Special Courts) Act, 1984; the Terrorist and Disruptive Activities (Prevention) Act, 1985; and the Terrorist and Disruptive Activities (Prevention) Act, 1987 fall within the legislative competence of Parliament in view of Article 248 read with Entry 97 of List I and could fall within the ambit of Entry 1 of List I, namely, ‘Defence of India’.

[Paras 368(1) and 78]

Having regard to the limitation placed by Article 245(1) on the legislative power of the Legislature of the State in the matter of enactment of laws having application within the territorial limits of the State only, the ambit of the field of legislation with respect to “public order” under Entry 1 in the State List has to be confined to disorders of lesser gravity having an impact within the boundaries of the State. Activities of a more serious nature which threaten the security and integrity of the country as a whole would not be within the legislative field assigned to the States under Entry 1 of the State List but would fall within the ambit of Entry 1 of the Union List relating to defence of India and in any event under the residuary power conferred on Parliament under Article 248 read with Entry 97 of the Union List.

(Para 66)

In order to ascertain the pith and substance of the impugned enactments, the preamble, the Statement of Objects and Reasons, the legal significance and the intendment of the provisions of these Acts, their scope and the nexus with the object that these Acts seek to subserve must be objectively examined in the background of the totality of the series of events — due to the unleashing of terrorism thereby injecting a sense of insecurity in the minds of the people, with the intention of destabilizing the sovereignty or overthrowing the Government as established by law. The way in which the alleged violent crimes is shown to have been perpetrated, the manner in which they have been cruelly executed, the vulnerable territorial frontiers which form part of the scene of unprecedented and unprovoked occurrences, lead to an inescapable illation and conclusion that the activities of the terrorists and disruptionists pose a serious challenge to the very existence of sovereignty as well as to the security of India notwithstanding the fact whether such threats or challenges come by way of external aggression or internal disturbance.

(Para 67)

Prafulla Kumar Mukherjee v. Bank of Commerce Ltd., AIR 1947 PC 60 : 74 IA 23 : 51 CWN 599; Ram Krishna Ramnath Agarwal v. Secretary, Municipal Committee, 1950 SCR 15 : AIR 1950 SC 11; Kerala State Electricity Board v. Indian Aluminium Co., (1976) 1 SCC 466 : (1976) 1 SCR 552; Superintendent, Central Prison v. Dr Ram Manohar Lohia, (1960) 2 SCR 821 : AIR 1960 SC 633 : 1960 Cri LJ 1002, referred to

The terrorism, the Act (TADA) contemplates, cannot be classified as mere disturbance of ‘public order’ disturbing the “even tempo of the life of community of any specified locality” but it is much more, rather a grave emergent situation created either by external forces particularly at the frontiers of this country or by anti-nationals throwing a challenge to the very existence and sovereignty of the country in its democratic polity.

(Para 68)

Arun Ghosh v. State of W.B, (1970) 1 SCC 98 : 1970 SCC (Cri) 67 : (1970) 3 SCR 288, referred to

Therefore, the submission that the preamble of the Act gives a clue that the terrorist and disruptive activities only mean a virulent form of the disruption of public order is inconceivable and unacceptable.

(Para 72)

The impugned legislation does not fall under Entry 1 of List II, namely, ‘Public order’. No other Entry of List II has been invoked. The impugned Act, therefore, falls within the legislative competence of Parliament in view of Article 248 read with Entry 97 of List I and it is not necessary to consider whether it falls under any of the entries in List I or List III. The impugned Act could fall within the ambit of Entry 1 of List I, namely, ‘Defence of India’.

(Para 73)

The definition of the expressions ‘terrorist act’ and ‘disruptive activity’ under Section 2(1)(h) and (d) of Act 28 of 1987 (TADA) respectively are conjointly brought under the definition of the word ‘terrorist act’ in Act 61 of 1984. Therefore, the Act of 1984 also cannot be said to have contemplated only ‘Public order’ but envisages a more grave situation threatening the sovereignty and integrity of India.

(Para 77)

Ram Manohar Lohia (Dr) v. State of Bihar, (1966) 1 SCR 709 : AIR 1966 SC 740 : 1966 Cri LJ 608; Sukhdev Singh v. Union Territory, Chandigarh, AIR 1987 P&H 5 : 1986 Cri LJ 1757 : (1986) 90 Punj LR 109; Lakhi Narayan Das v. Province of Bihar, AIR 1950 FC 59 : 51 Cri LJ 921 : 1949 FCR 693; Romesh Thappar v. State of Madras, 1950 SCR 594 : AIR 1950 SC 124 : 51 Cri LJ 1514; Rev. Stainislaus v. State of M.P, (1977) 1 SCC 677 : 1977 SCC (Cri) 147 : (1977) 2 SCR 611; Ashok Kumar Dixit v. State of U.P, AIR 1987 All 235 : 1987 All Cri R 236 : 1987 All LJ 806 (FB), referred to

Per K. Ramaswamy, J. (concurring)

Parliament does possess power under Article 248 and Entry 97 of List I of the Seventh Schedule to make the law.

(Para 393)

Per Sahai, J. (concurring)

Although it has been accepted by Pandian, J. that the exercise of power could be traced to Entries 1, 2 and 2-A of List I but I would confine it to the alternative submission that the legislation could be upheld under Entry 1 of List III.

(Para 443)

Entry 1 of List III is couched in very wide terms. The words following the expression ‘criminal law’ enlarge the scope to any matter which can validly be considered to be criminal in nature. The exercise of power under this entry, therefore, has to be construed liberally so as to give full play to the legislative activity. The width of the entry, however, is controlled by the latter expression which takes away the power of either legislature to legislate in respect of offences against laws with respect to any of the matters specified in List I or List II. Since this part restricts and narrows the ambit of the Entry it has to be construed strictly. Since under the federal structure the law made by the Parliament has supremacy any enactment made in exercise of power under entry in Concurrent List shall have overriding effect subject to restrictions that may be spelt out from the entry itself. A legislation by Union Parliament to be valid under this entry must satisfy two requirements; one, that it must relate to criminal law and the offence should not be such as has been or could be provided against laws with respect to any of the matters specified in List II.

(Para 445)

Harakchand Ratanchand Banthia v. Union of India, (1969) 2 SCC 166 : AIR 1970 SC 1453; Union of India v. H.S Dhillon, (1971) 2 SCC 779 : AIR 1972 SC 1061, relied on

Any Act or rules dealing with crime is criminal law. What is a crime in a given society at a particular time has a wide connotation as the concept of crime keeps on changing with change in political, economic and social set-up of the country. The Constitution makers therefore, conferred such powers both on Central and State Legislatures to make laws in this regard. Such right includes power to define a crime and provide for its punishment. Use of the expression, “including all matters included in the Indian Penal Code at the commencement of the Constitution” is unequivocal indication of comprehensive nature of this entry. It further empowers the legislature to make laws not only in respect of matters covered by the Indian Penal Code but any other matter which could reasonably and justifiably be considered to be criminal in nature. Terrorist or disruptive activity is criminal in content, reach and effect. The Central and State Legislature both, therefore, are empowered to legislate in respect of such an activity in exercise of the power conferred under Entry 1 of the Concurrent List. But this wide power is otherwise controlled and restricted by the latter part of the entry. It carves out an exception by precluding either of the legislatures from exercising the power if it is in respect of offence against laws with respect to any of the matters specified in List I or II. Therefore, if the legislation relating to TADA Act can fall in Entry 1 of List II then the State Legislature would have competence to make a law under this entry and create offences for violation of such law under Item 64 of List II and the Central Legislature would be precluded from making any law.

(Para 446)

The offences under the TADA Act do not relate to public order. The terrorism with which our country is faced is sponsored terrorism. Terrorism whether it is sponsored or revolutionary or even political by its nature cannot be considered to be public order. Conceptually public order and terrorism are different not only in ideology and philosophy but also in cause or the mens rea, the manner of its commission and the effect or result of such activity. Public order is well understood and fully comprehended as a problem associated with law and order. Terrorism is a new crime far serious in nature, more graver in impact, and highly dangerous in consequence. One pertains to law and order problem whereas the other may be political in nature coupled with unjustifiable use of force threatening security and integrity of the State. The submission thus advanced on legislative competence, more as a matter of form than with any feeling of conviction and belief in its merit, does not appear to be sound. TADA Act having been enacted under Entry 1 of List III of the Seventh Schedule, it did not suffer from lack of legislative competence,

(Paras 446 and 447)

Romesh Thappar v. State of Madras, 1950 SCR 594 : AIR 1950 SC 124 : 51 Cri LJ 1514; Ram Manohar Lohia (Dr) v. State of Bihar, (1966) 1 SCR 709 : AIR 1966 SC 740 : 1966 Cri LJ 608, relied on

Hence the three Acts — Act 61 of 1984, Act 31 of 1985, and Act 28 of 1987 have been validly enacted by the Parliament in exercise of its power under Entry 1 of List III of the Constitution.

[Para 460(1)]

E. Terrorist Affected Areas (Special Courts) Act, 1984 — S. 3(1) — Power vested in Central Govt. to declare any area as ‘terrorist affected area’ — Provision does not suffer from vagueness and invalidity — Power vested in Central Govt., for making such declaration, not unguided — Essential pre-requisites for declaring an area as ‘terrorist affected area’ stated — Constitution of India, Art. 14

Per curiam

The prerequisite conditions which are sine qua non for declaring any area as “terrorists affected area” by the Central Government by virtue of the authority conferred on it under Section 3(1) of the Act of 1984 are:

(1) The offences of the nature committed in any area to be declared as “terrorists affected area” should be one or more specified in the Schedule;

(2) The offences being committed by terrorists should satisfy the definition of the nature of the offence mentioned in Section 2(1)(h), namely, indulging in wanton killing of persons or in violence or in the disruption of services or means of communications essential to the community or in damaging property with a view to commit any of the offences enumerated under any of the clauses (i) to (iv) indicated under the definition of the word ‘terrorist’;

(3) The scheduled offences committed by terrorists should be on such a scale and in such a manner that it is expedient for the purpose of coping with the activities of such terrorists to have recourse to the provisions of this Act.

(Para 136)

Unless all the above three conditions are fully satisfied, the Central Government cannot invoke the power under Section 3(1) to declare any area as “terrorist affected area”. In other words, in the absence of any of the conditions, Section 3(1) cannot be invoked. Therefore, the contention that Section 3(1) suffers from vagueness and lacks guidance is unmerited.

[Paras 137 and 368(3); Para 372; Para 449]

There is also some force in the submission that the legislature considered it proper to prescribe a uniform procedure for serious offences having a direct relationship with peace and tranquillity of the area in the notified area after the notified date and that serious offences which are likely to create terror and panic in the minds of the people were/are sought to be dealt with under the Act by prescribing a speedier trial so that disturbed situations could be brought under control without loss of time to prevent the situation from getting deteriorated and spreading to other areas.

[Para 138; Para 372; Para 449]

F. Statute Law — Vagueness — Vague law is void — Jurisprudence — Constitution of India, Arts.. 14 and 21 — Substantive due process of law

Per curiam

An enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. It is insisted or emphasised that laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Such a law impermissibly delegates basic policy matters to policemen and also judges for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. More so uncertain and undefined words deployed inevitably lead citizens to “steer far wider of the unlawful zone … than if the boundaries of the forbidden areas were clearly marked”.

(Para 130)

G. Terrorist and Disruptive Activities (Prevention) Act, 1987 — S. 2(1)(a)(i) — ‘Abet’ — Mens rea if essential — Cl. (i) of the definition vague inasmuch as in absence of expression of intention or knowledge, even an innocent person communicating or associating can be held to be an abettor — Since substantive provisions expressly require an intention or knowledge the same should be read as a requirement into cl. (i) for an abettor — Criminal Law — Abetment — Penal Code, 1860, Ss. 107 and 108 — Words and phrases

H. Criminal Trial — Mens rea — Exclusion of — Must be by express words or by necessary implication in the statute — Court can go behind the words to ascertain legislative intendment — Interpretation of Statutes — Legislative intent

Per curiam

Clause (i) of Section 2(1)(a) which defines ‘abet’ is impermissibly vague and imprecise. Even an innocent person who ingenuously and undefiledly communicates or associates without any knowledge or having no reason to believe or suspect that the person or class of persons with whom he has communicated or associated is engaged in assisting in any manner terrorists or disruptionists, can be arrested and prosecuted by abusing or misusing or misapplying this definition. In ultimate consummation of the proceedings, perhaps that guiltless and innoxious innocent person may also be convicted. Since the substantive provisions of the Act expressly require the intention as an essential ingredient to constitute an offence, exclusion of mens rea or intention or knowledge on the part of the abettor cannot be justified. Therefore, the expressions ‘communication’ and ‘association’ deployed in the definition should be qualified so as to save the definition, in the sense that “actual knowledge or reason to believe” on the part of a person to be roped in with the aid of that definition should be read into it instead of reading it down and clause (i) of the definition 2(1)(a) should be read as meaning “the communication or association with any person or class of persons with the actual knowledge or having reason to believe that such person or class of persons is engaged in assisting in any manner terrorists or disruptionists” so that the object and purpose of that clause may not otherwise be defeated and frustrated. Clauses (ii) and (iii) need not require any exposition since both the clauses themselves are self-explanatory.

[Paras 131, 120, 121, 122, 128, 129 to 134; and 368(2); Para 372; Para 449]

In a criminal action, the general conditions of penal liabilities are indicated in old maxim “actus non facit reum, nisi mens sit rea” i.e the act alone does not amount to guilt, it must be accompanied by a guilty mind. But there are exceptions to this rule and the reasons for this is that the legislature, under certain situations and circumstances, in its wisdom may think it so important, in order to prevent a particular act from being committed, to forbid or rule out the element of mens rea as a constituent part of a crime or of adequate proof of intention or actual knowledge. However, unless a statute either expressly or by necessary implication rules out ‘mens rea’ in cases of this kind, the element of ‘mens rea’ must be read into the provisions of the statute. The question is not what the word means but whether there are sufficient grounds for inferring that the Parliament intended to exclude the general rule that mens rea is an essential element for bringing any person under the definition of ‘abet’.

(Para 115)

It is generally necessary to go behind the words of the enactment and take other factors into consideration as to whether the element of ‘mens rea’ or actual knowledge should be imported into the definition.

(Para 116)

Brand v. Wood, 62 TLR 462; Sherras v. De Rutzen, (1895) 1 QB 918 : 11 TLR 369; Nicholls v. Hall, LR (1873) 8 CP 322 : 28 LT 473; State of Maharashtra v. Mayer Hans George, (1965) 1 SCR 123 : AIR 1965 SC 722 : (1965) 1 Cri LJ 641; Nathulal v. State of M.P, AIR 1966 SC 43 : 1966 Cri LJ 71; Srinivas Mall Bairoliya v. King-Emperor, AIR 1947 PC 135 : 49 Bom LR 688 : (1947) 2 MLJ 328; Ravula Hariprasada Rao v. State, 1951 SCR 322 : AIR 1951 SC 204 : 52 Cri LJ 768, relied on

State v. Abdul Aziz, AIR 1962 Bom 243 : 64 Bom LJ 16 : (1962) 2 Cri LJ 472, approved

Sarjoo Prasad v. State of U.P, (1961) 3 SCR 324 : AIR 1961 SC 631 : (1961) 1 Cri LJ 747; Pukhraj v. D.R Kohli, 1962 Supp 3 SCR 866 : AIR 1962 SC 1559; Nathulal v. State of M.P, AIR 1966 SC 43 : 1966 Cri LJ 71; Y.S Parmar (Dr) v. Hira Singh Paul, 1959 Supp 1 SCR 213 : AIR 1959 SC 244 : 16 ELR 483; State of Maharashtra v. Mayer Hans George, (1965) 1 SCR 123 : AIR 1965 SC 722 : (1965) 1 Cri LJ 641; Jagdish Prasad v. State of W.B, (1972) 1 SCC 326 : 1972 SCC (Cri) 63 : (1972) 2 SCR 845; Collector of Customs v. Chetty Nathela Sampathu, (1962) 3 SCR 786 : AIR 1962 SC 316 : (1962) 1 Cri LJ 364; Inder Sain v. State of Punjab, (1973) 2 SCC 372 : 1973 SCC (Cri) 813, referred to

Corpus Juris Secundum, Vol. 1 at page 306; Collins English Dictionary, relied on

I. Terrorist and Disruptive Activities (Prevention) Act, 1987 — Ss. 3 and 4 — Held, valid — Legality and efficaciousness of, cannot be questioned on grounds of overlapping of offences under Ss. 3 and 4 with those under ordinary penal laws and absence of guiding principle as to when to proceed under ordinary laws and when under the Act — Question of discrimination also does not arise in view of separate machinery provided for trial under the Act — Provisions to be strictly construed and invoked only in extreme situations — Constitution of India, Art. 14

The legality and the efficaciousness of Sections 3 and 4 of 1987 Act were assailed on the grounds,—

(1) These two sections cover the acts which constitute offences under ordinary laws like the Indian Penal Code, Arms Act and Explosive Substances Act;

(2) There is no guiding principle laid down when the executive can proceed under the ordinary laws or under the impugned Act of 1987; and

(3) The Act and Sections 3 and 4 thereof should be struck down on the principle laid down in State of W.B v. Anwar Ali Sarkar, 1952 SCR 284 : AIR 1952 SC 75 and followed in many other cases including A.R Antulay v. Union of India, (1988) 2 SCC 602, at 764 (appendix).

Held :

Per curiam

The contention that Sections 3 and 4 of the Act of 1987 are liable to be struck down on the grounds that both the sections cover the acts which constitute offences under ordinary laws and that there is no guiding principle as to when a person is to be prosecuted under these sections, is rejected.

[Para 368(4); Para 372; Para 449]

Having regard to the object and purpose of the Act of 1987 as reflected from the preamble and the Statement of Objects and Reasons of the Act, the submission made questioning the legality and efficaciousness of Sections 3 and 4 on the grounds (1) and (2) mentioned above cannot be countenanced. The validity of these two provisions cannot be challenged under the third ground also as there is no discrimination in view of the separate machinery provided for the trial of the cases under this Act to achieve the object of it.

(Para 148)

True, the offences arising out of the acts enumerated in Sections 3 and 4 may be similar to the offences falling under the ordinary penal laws and various offences arising out of the terrorist or disruptive activities may overlap some of the offences covered by the other ordinary penal laws.

(Para 142)

The Act tends to be very harsh and drastic containing the stringent provisions and provides minimum punishments and to some other offences enhanced penalties also. The provisions prescribing special procedures aiming at speedy disposal of cases, departing from the procedures prescribed under the ordinary procedural law are evidently for the reasons that the prevalent ordinary procedural law was found to be inadequate and not sufficiently effective to deal with the offenders indulging in terrorist and disruptive activities. Secondly the incensed offences are arising out of the activities of the terrorists and disruptionists which disrupt or are intended to disrupt even the sovereignty and territorial integrity of India or which may bring about or support any claim for the cession of any part of India or the secession of any part of India from the Union, and which create terror and a sense of insecurity in the minds of the people. Further the Legislature being aware of the aggravated nature of the offences have brought this drastic change in the procedure under this law so that the object of the legislation may not be defeated and nullified.

(Para 145)

Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya, (1990) 4 SCC 76 : 1991 SCC (Cri) 47; Usmanbhai Dawoodbhai Memon v. State of Gujarat, (1988) 2 SCC 271 : 1988 SCC (Cri) 318, relied on

State of W.B v. Anwar Ali Sarkar, 1952 SCR 284 : AIR 1952 SC 75 : 1952 Cri LJ 510; Abdul Rahman Antulay v. Union of India, (1988) 2 SCC 602, at 764 (appendix) referred to

J. Terrorist and Disruptive Activities (Prevention) Act, 1987 — S. 5 — Mere possession of specified arms and ammunition made substantive offence under — Held, provision harsh — To save it from arbitrariness, it should be invocable only where possession of the arms and ammunitions is connected with use thereof — Constitution of India, Art. 14

Per Sahai, J.

Section 5 is much serious in nature and graver in impact as it results in prosecution of a man irrespective of his association or connection with a terrorist or terrorist activity. A comparison of this section with Sections 3 and 4 demonstrates the arbitrariness inherent in it. A terrorist or a disruptionist and a person possessing any of the arms and ammunition mentioned in the section have been placed on a par. In Sections 3 and 4 the offence arises on the act having been done whereas in Section 5 it is founded only on possession. The Act, therefore, visualises prosecution of the terrorist or disruptionist for offences under Sections 3 and 4 and of others only if they are associated or related with it. That is in keeping with the objective of the Act. The legislation has been upheld as the legislature is competent to enact in respect of a crime which is not otherwise covered by any Entry in List II of the Seventh Schedule. The definition of the crime, is contained in Sections 3 and 4 of the Act and it is true that while defining the crime it is open to the legislature to make provision which may serve the objective of the legislation and from a wider point of view one may say that possession of such arms, the use of which may lead to terrorist activity, should be taken as one of the offences as a preventive or deterrent provision. Yet there must be some inter-relation between the two, howsoever, remote it may be. The harshness of the provisions is apparent as all those provisions of the Act for prosecuting a person including forfeiture of property, denial of bail etc., are applicable to a person accused of possessing any arms and ammunition as one who is charged for an offence under Sections 3 and 4 of the Act. Though no one has justification to have such arms and ammunitions as are mentioned in Section 5, but unjustifiable possession does not make a person a terrorist or disruptionist. Since both the substantive and procedural law apply to a terrorist and disruptionist or a terrorist act or a disruptive act, it is necessary that this section if it has to be immune from attack of arbitrariness may be invoked only if there is some material to show that the person who was possessed of the arms intended it to be used for terrorist or disruptionist activity or it was an arm and ammunition which in fact was used.

[Paras 451 and 460(2)]

K. Terrorist and Disruptive Activities (Prevention) Act, 1987 — S. 8(1) and (2) — Forfeiture of property — Discretionary power of Designated Court — Held, not violative of Arts. 21 and 14 on grounds of the discretion being unguided and forfeiture free from all encumbrances being an unmerited punishment to third parties having interest in the forfeited property — Constitution of India, Arts.. 14 and 21 — Words and phrases — “Order”, Meaning of

It was contended that Section 8 is violative of Articles 21 and 14 on the grounds that (1) no guidelines have been provided for when the property of a convicted person should or should not be forfeited; and (2) forfeiture to Government ‘free from all encumbrances’ may amount in many cases to unmerited punishment of third parties who have no concern whatsoever with the offence with which the person under this provision has been convicted and who have got interest by advancing money on the security of the forfeited property. Rejecting the contention

Held :

Per curiam

The discretionary power given to the Designated Court under Section 8(1) and (2) is to be exercised under strict contingencies, namely that (1) there must be an order of forfeiture and that order must be in writing; (2) the property either moveable or immovable or both must belong to the accused convicted of any offence of TADA Act or rule thereunder; (3) the property should be specified in the order; (4) even though attachment can be made under Section 8(2) during the trial of the case, the forfeiture can be ordered only in case of conviction and not otherwise.

(Para 156)

The very fact that the order should be in writing implies that the Designated Court must give reasons for such an order even though the section does not specifically require the Designated Court to record its reasons for so doing, because the word ‘order’ even according to the lexicon meaning is that it is a decision or direction either interlocutory or preliminary or final by the court trying the offence. Secondly, under Section 19 of the Act, an appeal lies straight to the Supreme Court as a matter of right from any order not being interlocutory order both on facts and law.

(Para 157)

Therefore Section 8 of the TADA Act is not violative of Articles 14 and 21 of the Constitution.

[Para 368(5); Para 372; Para 451]

L. Terrorist and Disruptive Activities (Prevention) Act, 1987 — S. 9 — Legislative competence — Constitution of Designated Courts — Held, provision not violative of Entry 65 of List II of Seventh Sch. and Arts. 233, 234 and 235, the Act being covered by Entry 1 of List I — Constitution of India, Sch. VII List I Entry 1 List II Entry 65 and Arts. 233, 234 & 235

Held :

Per curiam

The challenge on the validity of Section 9 on the ground of lack of legislative competence has no merit.

[Para 368(6); Para 372; Para 451]

There is no substance in the contention that Section 9 is violative of Entry 65, List II of the Seventh Schedule and Articles 233, 234 and 235 of the Constitution.

(Para 162)

As the Act is enacted under Entry 1 of List I, the constitution of the Designated Courts by the Central Government cannot be said to be in violation of Entry 65 of List II which empower the State Legislature to constitute the courts. Under Section 9 of the Act, both the Central Government and the State Governments are authorised to constitute Designated Courts by notification under sub-section (2) of Section 9. The courts constituted by the Central Government either before or after the issue of the notification constituting the Designated Courts by the State Government shall have jurisdiction to try any offence committed in that area or areas and the Designated Courts constituted by the State Government shall not have any jurisdiction to try any offence committed in that area or areas. In addition, sub-section (3) of Section 9 states that where any question arises as to the jurisdiction of any Designated Court, the decision taken by the Central Government in that regard will be final.

(Paras 160 and 161)

M. Terrorist and Disruptive Activities (Prevention) Act, 1987 — S. 9(7) — Continuance of Judge of Designated Court even after attaining age of superannuation — Held, per majority, provision not violative of Art. 21 — However, at the time of appointment of a Judge to Designated Court Central/State Govts. should keep in mind that the Judge designate has sufficient tenure — Per Sahai, J. concurring, no one should be appointed as Judge of Designated Court after his retirement — Per K. Ramaswamy, J. dissenting, provision unconstitutional being violative of basic structure and judicial independence envisaged in the Constitution — However, by virtue of the de facto doctrine and Art. 233-A, trials conducted, convictions made punishments imposed and judgments/orders passed to be treated as legal and valid — Constitution of India, Arts.. 21 and 233-A

Sub-section (7) of Section 9 is challenged on the ground that the continuance of a Judge of a Designated Court even after attainment of the age of superannuation is a regressive provision because a Judge who is permitted to hold the office, hitherto held, after superannuation will not be having his judicial independence; but on the other hand his holding the office on the pleasure of the executive, will be subversive since there is nothing to prevent the executive from terminating his appointment as and when it likes. This legal sanction of continuance in the service, according to the counsel, will not serve the purpose of just and fair trial and it would be violating the principle enshrined in Article 21. The contention was based on the following observation of Chandrachud, C.J in Special Courts Bill, 1978, In re while dealing with constitutionality of clause (7) of the Special Courts Bill [which provided that a Special Court shall be presided over by a sitting Judge of a High Court in India or a person who has held the office as a Judge in a High Court in India and nominated by the Central Government in consultation with the Chief Justice of India.]: “… clause (7) of the Bill violates Article 21 of the Constitution to the extent that a person who has held office as a Judge of the High Court can be appointed to preside over a Special Court, merely in consultation with the Chief Justice of India.” Rejecting the contention

Held :

Per majority

The observation of the Supreme Court with reference to clause (7) of the Special Courts Bill cannot be strictly applied to the situation of the continuance of a Judge of a Designated Court under Section 9(7) for the reason that the person who was to be nominated by the Central Government in consultation with the Chief Justice of India under clause (7) of the Special Courts Bill was a person who had held the office as a Judge of the High Court, that is to say the appointment was after the retirement. But in the present Act, the Judge is permitted to continue the same judicial service as a Judge or Additional Judge, as the case may be, on the attainment of superannuation. In other words, the Judge on the attainment of the age of superannuation does not retire. Therefore, there is no force in the above argument challenging the constitutional validity of Section 9(7) by availing the observation in Special Courts Bill, In re.

(Paras 167 and 168)

Special Courts Bill, 1978, In re, (1979) 1 SCC 380 : (1979) 2 SCR 476, distinguished

Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : (1978) 2 SCR 621, referred to

However, it is suggested that the Central Government and the State Government at the time of appointing a Judge or an Additional Judge to the Designated Court with the concurrence of the Chief Justice of the High Court concerned should keep in mind that the Judge designate has sufficient tenure of service even at the initial stage of appointment, so that no one may entertain any grievance for continuance of service of a Judge of the Designated Court after attainment of superannuation. Hence Section 9(7) does not offend any constitutional provision.

[Paras 168 and 368(7)]

Per Sahai, J. (concurring)

While agreeing with Brother Pandian, J., it has to be added that although the provisions relating to appointment of a person as Designated Court are clear yet in the written arguments it was pointed out that some of them were appointed even after retirement. Such appointments would be in teeth of the express provisions in the statute. Therefore, no one should be appointed as Designated Court who has retired from service.

[Paras 460(3) and 452]

Per K. Ramaswamy, J. (dissenting)

Constitution of a Designated Court per se may be valid but as a court parallel to Courts of Session and appointment of Sessions Judge or Additional Sessions Judge as a judge of the Designated Court without administrative and judicial control of the High Court concerned and continuance in office after attaining superannuation are clearly in negation of and subversive to the independence of the judiciary, carefully conserved and given to the people of India. It would foster the “pleasure doctrine” laying the seeds to bear fruits of poisoned tree to destroy independence and impartiality of justice which the Constitution of India consciously avoided. It is, therefore, unconstitutional.

(Paras 408 to 419)

Liyanage v. Queen, (1967) 1 AC 259 : (1966) 1 All ER 650 (PC); Northern Pipeline Construction Co. v. Marathon Pipe Line Co. and United States, 73 L Ed 2d 598 : 458 US 50 (1982); Managing Director, ECIL, Hyderabad v. B. Karunakar, (1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704 : JT (1993) 6 SC 1; Victor Linkletter v. Victor G. Walker, 14 L Ed 2d 601 : 381 US 618 (1965); Danny Escobedo v. Illinois, 12 L Ed 2d 977 : 378 US 478 (1964); Sylvester Johnson v. State of New Jersey, 16 L Ed 2d 882 : 384 US 719 (1966); Gokaraju Rangaraju v. State of A.P, (1981) 3 SCC 132 : 1981 SCC (Cri) 652 : (1981) 3 SCR 474; Ernesto A. Miranda v. State of Arizona, 384 US 436 : 16 L Ed 2d 694 (1966), relied on

This conclusion does not mean that the offences under the Act cannot be tried by the regular courts especially assigned by the High Court to the Sessions or Additional Sessions or Joint Sessions Judges to exercise those functions or the power under the Act. Moreover, Section 19 confers appellate powers on the Supreme Court.

(Para 420)

It is true that in the light of the finding that Section 9(7) is invalid, violative of the basic structure and judicial independence envisaged in the Constitution, public policy requires that the doctrine of de facto be engrafted on necessity to protect the interest of the public and the individuals involved in the official acts of persons exercising the duty of an office without actually being one in strict point of law. Therefore, though, de jure they are not by title validly appointed, but by colour of title the exercise and functions as Judge of the Designated Court, trials conducted, judgments rendered, orders passed, punishments imposed and convictions made are legal and valid. The de facto doctrine is not a stranger to the Constitution or to the Parliament and the legislature of the States. Article 233-A recognises this doctrine brought by Constitution Twentieth Amendment Act, 1966. Therefore, the trials conducted, judgments pronounced and the orders or punishment imposed under the Act remained valid. Thus though Section 9(7) is unconstitutional but any judgment or order made and conviction rendered exercising powers under the Act and sentence imposed relying thereon does not become invalid or void. It is open to the Parliament to amend Section 9(7) suitably. The operation of this judgment is postponed for a year from the date of the present judgment to carry out the amendments and necessary steps be taken to have Section 9(7) suitably amended. If no amendments are effected within the period or extended period on and from the date of expiry of the period aforementioned, or any extended time by order of the Supreme Court, Section 9(7) would thereafter become void.

(Paras 422 and 423)

N. Terrorist and Disruptive Activities (Prevention) Act, 1987 — S. 11(2) & (3) — Transfer of case on motion moved by Attorney General — Natural justice — Audi alteram partem — Absence of requirement of hearing the accused before transfer in accordance with natural justice would not render S. 11(2) violative of Art. 14 — Concurrence of CJI essential pre-requisite to passing of order by Central Govt. under sub-section (2) or (3) — Order granting concurrence a statutory order — CJI may in exceptional circumstances obtain the view of the accused and accord or refuse concurrence — This would eliminate objections regarding bias, mala fides and extraneous considerations — But grant of concurrence would not obligate the Central Govt. to pass the order — Final order of Central Govt. open to judicial review — Administrative Law — Natural justice — Constitution of India, Art. 14

Per curiam

Sub-sections (2) and (3) of Section 11 are not violative of Articles 14 of the Constitution.

[Para 368(8); Para 372; Para 451]

It may be noted that there are specific provisions already in vogue under the Constitution and some statutes for transfer of cases and appeals from one court subordinate to the transferring court to another court.

(Para 180)

Now under Section 11(2) and (3) of TADA Act, the concurrence of the Chief Justice is sought for when the exigencies of the situation prevailing in the State is not conducive to a fair, impartial or speedy trial. The authority to give concurrence is vested upon an independent judicial authority who is none other than the head of judiciary in India, namely, the Chief Justice of India as a persona designata. The vesting of this power in the Chief Justice of India is evidently with the purpose of making it known that the Central Government is not seeking to obtain the concurrence either with a motivation of bias or mala fide or on being influenced by any extraneous consideration, but on a reasonable and justifiable ground taking into consideration the prerequisite essential conditions, those being — (1) that the situation prevailing in the State from which a case under Section 11(2) is sought to be transferred to some other Designated Court is not conducive to a fair, impartial or speedy trial; (2) that it is not likely to be feasible without occasioning the breach of peace or grave risk to the safety of the accused, the witnesses, the Public Prosecutor and the judge of the Designated Court or any of them; and (3) it is not otherwise in the interests of justice. The reasons for seeking such concurrence, of course, will be manifested in the motion moved by the law officers. The Chief Justice of India, while discharging his statutory function passes a statutory order and gives or refuses the concurrence on drawing his requisite subjective satisfaction on the materials placed before him in the motion. The mere according of concurrence by itself is not an order of transfer but it only facilitates the Central Government to pass an order under either of the above provisions. The obtaining of concurrence of the Chief Justice of India is one of the specified conditions to be fulfilled or complied with before any order either under sub-section (2) or sub-section (3) of Section 11 is passed by the Central Government. The according of the concurrence though imperative does not compel the Government to pass any order if, for any other intervening causes, the Central Government even after obtaining the concurrence decides that there is no necessity of transferring any case. In that situation the concurrence will have no effect. The according of concurrence being only a statutory order and not a judicial order because there is no adjudication of any ‘lis’ and determination of any issue, the final order passed by the Government may be open to judicial review but not the concurrence accorded which is only a statutory condition to be satisfied before passing the transfer order by the Central Government. Notwithstanding the power of the Parliament to exclude the application of rule of ‘audi alteram partem’ in exceptional circumstances, it may be open to the Chief Justice of India in an appropriate case to have the view of the accused.

(Paras 185, 186 and 190)

R v. Cain, (1975) 2 All ER 950 : (1975) 3 WLR 131; Gouriet v. Union of Post Office Workers, (1977) 3 All ER 70 : (1977) 3 WLR 300, relied on

A.K Kraipak v. Union of India, (1969) 2 SCC 262 : (1970) 1 SCR 457; K. (H.) (An Infant), In re, (1967) 2 QB 617 : (1967) 1 All ER 226; State of Orissa v. Dr (Miss) Binapani Dei, (1967) 2 SCR 625 : AIR 1967 SC 1269; Bimal Kaur Khalsa v. Union of India, AIR 1988 P&H 95 : (1988) 93 Punj LR 189 : 1988 Cri LJ 169; Union of India v. Tulsiram Patel, (1985) 3 SCC 398 : 1985 SCC (L&S) 672; Satya Vir Singh v. Union of India, (1985) 4 SCC 252 : 1986 SCC (L&S) 1; C.B Gautam v. Union of India, (1993) 1 SCC 78, referred to

O. Terrorist and Disruptive Activities (Prevention) Act, 1987 — S. 15 — Confession recorded by police officer, not lower in rank than Superintendent of Police, made admissible — Such special provision based on classification, made by the Act, of terrorists and disruptionists being a separate class of offenders from ordinary criminals under normal laws and of offences specified under the Act being aggravated offences requiring special provision of S. 15 — Held, (per majority) provision non-discriminatory, the classification of offenders and offences by the Act having a reasonable nexus with the object and purpose of the Act — Parliament has legislative competence to enact it — Procedure for recording confession, being subject to certain conditions under S. 15 as well as under Rules, not in the circumstances unjust unfair or oppressive — Severe safeguards required when confession recorded by mechanical devices — Hence provision not violative of Arts. 14 and 21 — However, recording of confession by Magistrate under S. 164 CrPC not excluded by the Act — Guidelines laid down for recording confession by police officer — Central Govt. directed to incorporate the guidelines in the Act and the Rules — Constitution of Screening/Review Committees by Central and State Govts. also suggested — Held (per K. Ramaswamy, J. dissenting), vesting of power to record confession on police officer, whatever may be his rank, violates fundamental principles of fair justice and shocks the conscience and is violative of Arts. 14, 20(3), 21 and 50 — It is not the hierarchy of the police officer but the suspicion in mind of the common man about adherence to procedural safeguards which are relevant, for, appearance of injustice is denial of justice — Moreover, even if the offenders and the offences under the Act constitute a separate class, the harsher procedure prescribed for dealing with them must satisfy the test of Arts. 21 and 14 which S. 15 fails — Held, (per Sahai, J., dissenting), S. 15 is violative of Arts. 20(3) and 21 — Approach of police is basically different from that of judicial officer as the former is concerned with the result and not with procedural fairness and this approach does not change by hierarchy of the officer — Police culture is not yet mature enough for such a drastic change in procedure — It is destructive of basic values of the Constitution — Legislative competence does not empower Parliament to enact the law curtailing or violating fundamental rights — Law must still be just and fair — Constitution of India, Arts.. 14, 20(3), 21 and 50 — Administrative Law — Natural justice — Fair justice — Concept of — Words and phrases — ‘Confession’ and ‘compelled’

P. Constitution of India — Arts. 21 and 14 — Procedure established by law — Classification — Where two procedures exist for two class of persons, both must satisfy the test of Arts. 14 and 21 — If one of the procedures is harsh, oppressive, unconscientious, unfair, unjust and unreasonable the same would be unconstitutional

Per majority

If the procedural law is oppressive and violates the principle of just and fair trial offending Article 21 of the Constitution and is discriminatory violating Article 14 of the Constitution, then Section 15 of TADA Act is to be struck down. As a distinction has been made in TADA Act grouping the terrorists and disruptionists as a separate class of offenders from ordinary criminals under the normal laws and the classification of the offences under TADA Act as aggravated form of crimes distinguishable from the ordinary crimes; it has to be tested and determined as to whether this distinction and classification are reasonable and valid within the term of Article 14. Hence it is essential to examine the classification of ‘offenders’ and ‘offences’ so as to decide whether Section 15 is violative of Article 14.

(Paras 217, 220 and 236)

The persons who are to be tried for offences specified under the provisions of TADA Act are a distinct class of persons and the procedure prescribed for trying them for the aggravated and incensed nature of offences are under different classification distinguishable from the ordinary criminals and procedure. This distinction and classification of grouping of the accused and the offences to be tried under TADA Act are to achieve the meaningful purpose and object of the Act as reflected from the preamble as well as the ‘Statement of Objects and Reasons’.

(Para 222)

The classification of ‘offenders’ and ‘offences’ to be tried by the Designated Court under the TADA Act or by the Special Courts under the Act of 1984, are not left to the arbitrary and uncontrolled discretion of the Central Government but the Act itself has made a delineated classification of the offenders as terrorists and disruptionists in the TADA Act and the terrorists under the Special Courts Act, 1984 as well as the classification of offences under both the Acts. Therefore, the complaint of incorporation of invidious discrimination in the Act has to be turned down. All that the court has to see is whether the power is used for any extraneous purpose i.e to say not for achieving the object for which the power is granted and whether the Act (TADA) has been made on grounds which are not germane or relevant to the policy and purpose of this Act and whether it is discriminatory so as to offend Article 14. The classifications have rational nexus with the object sought to be achieved by the TADA Acts and Special Courts Act and consequently there is no violation of Article 14.

[Paras 243, 244 and 368(9)]

State of Bombay v. F.N Balsara, AIR 1951 SC 318 : 1951 SCR 682 : 52 Cri LJ 1361, relied on

N.B Khare (Dr) v. State of Delhi, 1950 SCR 519 : AIR 1950 SC 211 : 1951 Cri LJ 550; Kathi Raning Rawat v. State of Saurashtra, 1952 SCR 435 : AIR 1952 SC 123 : 1952 Cri LJ 805; Kedar Nath Bajoria v. State of W.B, 1954 SCR 30 : AIR 1953 SC 404 : 1953 Cri LJ 1621; State of Bombay v. R.M.D Chamarbaugwala, 1957 SCR 874 : AIR 1957 SC 699; Pannalal Binjraj v. Union of India, 1957 SCR 233 : AIR 1957 SC 397 : (1957) 31 ITR 565; Talib Haji Hussain v. Madhukar P. Mondkar, 1958 SCR 1226 : AIR 1958 SC 376 : 1958 Cri LJ 701; Kangsari Haldar v. State of W.B, (1960) 2 SCR 646 : AIR 1960 SC 457 : 1960 Cri LJ 654, referred to

State of W.B v. Anwar Ali Sarkar, 1952 SCR 284 : AIR 1952 SC 75 : 1952 Cri LJ 510, explained and distinguished

Willis: Constitutional of Law, 1st Edn. p. 578, relied on

Parliament has got the legislative competence to enact the TADA Act as also the Special Courts Act of 1984. Having regard to the legal competence of the legislature to make the law prescribing a different mode of proof, the meaningful purpose and object of the legislation, the gravity of terrorism unleashed by the terrorists and disruptionists endangering not only the sovereignty and integrity of the country but also the normal life of the citizens, and the reluctance of even the victims as well as the public in coming forward, at the risk of their life, to give evidence, Section 15 cannot be said to be suffering from any vice of unconstitutionality. In fact, if the exigencies of certain situations warrant such a legislation then it is constitutionally permissible, provided none of the fundamental rights under Chapter III of the Constitution is infringed.

[Paras 223 and 253]

Asbury Hospital v. Cass County, 90 L Ed 6 : 326 US 207 (1945); Goesaert v. Cleary, 93 L Ed 163 : 335 US 464 (1948); Railway Express Agency v. New York, 93 L Ed 533 (F) : 336 US 106 (1948), relied on

An accused or a person accused of any offence is protected by the constitutional provisions as well as the statutory provisions to the extent that no self-incriminating statement made by an accused to the police officer while he is in custody, could be used against such maker. Hence the submission on behalf of the State that while a confession by an accused before a specified officer either under the Railway Protection Force Act or Railway Property (Unlawful Possession) Act or Customs Act or Foreign Exchange Regulation Act is made admissible, the special procedure prescribed under the TADA Act making a confession of a person indicted under that Act given to a police officer admissible cannot be questioned, is misnomer because all the officials empowered to record statements under those special Acts are not police officers.

(Para 214)

State of U.P v. Durga Prasad, (1975) 3 SCC 210 : 1974 SCC (Cri) 828 : AIR 1974 SC 2136; Balkishan A. Devidayal v. State of Maharashtra, (1980) 4 SCC 600 : 1981 SCC (Cri) 62 : AIR 1981 SC 379; Ramesh Chandra Mehta v. State of W.B, (1969) 2 SCR 46 : AIR 1970 SC 940 : 1970 Cri LJ 863; Poolpandi v. Superintendent, Central Excise, (1992) 3 SCC 259 : 1992 SCC (Cri) 620; Ekambaram v. State of T.N, 1972 MLW (Cri) 261; Directorate of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440 : JT (1994) 1 SC 290, relied on

M.P Sharma v. Satish Chandra, District Magistrate, Delhi, 1954 SCR 1077 : AIR 1954 SC 300 : 1954 Cri LJ 865; Raja Narayanlal Bansilal v. Maneck Phiroz Mistry, (1961) 1 SCR 417 : AIR 1961 SC 29 : (1960) 30 Comp Cas 644; State of Bombay v. Kathi Kalu Oghad, (1962) 3 SCR 10 : AIR 1961 SC 180 : (1961) 2 Cri LJ 856; Nandini Satpathy v. P.L Dani, (1978) 2 SCC 424 : 1978 SCC (Cri) 236, referred to

In view of the legal position vesting authority on higher police officer to record the confession hitherto enjoyed by the judicial officer in the normal procedure, there should be no breach of procedure and the accepted norms of recording the confession which should reflect only the true and voluntary statement and there should be no room for hyper criticism that the authority has obtained an invented confession as a source of proof irrespective of the truth and creditability.

(Para 254)

As per Section 15(1), a confession can either be reduced into writing or recorded on any mechanical device like cassettes, tapes or sound tracks from which sounds or images can be reproduced. Since the recording of evidence on mechanical device can be tampered, tailored, tinkered, edited and erased etc., there must be some severe safeguards which should be scrupulously observed while recording a confession under Section 15(1) so that the possibility of extorting any false confession can be prevented to some appreciable extent.

(Para 257)

Sub-section (2) of Section 15 enjoins a statutory obligation on the part of the police officer recording the confession to explain to the person making it that he is not bound to make a confession and to give a statutory warning that if he does so it may be used as evidence against him. Also Rule 15 of the TADA Rules imposes certain conditions on the police officer with regard to the mode of recording the confession and imposes certain requirements on the police officer recording the confession. For these and foregoing reasons it must be held that Section 15 is not liable to be struck down since that section does not offend either Article 14 or Article 21 of the Constitution.

[Paras 259, 260 and 368(9)]

Nonetheless, the recording of a confession by a Magistrate under Section 164 of the Code is not excluded by any exclusionary provision in the TADA Act, contrary to the Code but on the other hand the police officer investigating the case under the TADA Act can get the confession or statement of a person indicted with any offence under any of the provisions of the TADA Act recorded by any Metropolitan Magistrate, Judicial Magistrate, Executive Magistrate or Special Executive Magistrate of whom the two latter Magistrates are included in Section 164(1) by sub-section (3) of Section 20 of the TADA Act and empowered to record confession.

(Para 261)

Accordingly, any confession or statement of a person under the TADA Act can be recorded either by a police officer not lower in rank than of a Superintendent of Police, in exercise of the powers conferred under Section 15 or by a Metropolitan Magistrate or Judicial Magistrate or Executive Magistrate or Special Executive Magistrate who are empowered to record any confession under Section 164(1) in view of sub-section (3) of Section 20 of the TADA Act.

(Para 262)

Bhuboni Sahu v. King, AIR 1949 PC 257 : 76 IA 147 : 50 Cri LJ 872; Periyaswami Mooppan v. Emperor, ILR (1931) 54 Mad 75 : AIR 1931 Mad 177 : 32 Cri LJ 448; Hari Charan Kurmi and Jogia Hajam v. State of Bihar, (1964) 6 SCR 623 : AIR 1964 SC 1184 : (1964) 2 Cri LJ 344; Olga Tellis v. Bombay Municipal Corpn., (1985) 3 SCC 545 : 1985 Supp 2 SCR 51; E.P Royappa v. State of T.N, (1974) 4 SCC 3 : 1974 SCC (L&S) 165 : (1974) 2 SCR 348; M.H Hoskot v. State of Maharashtra, (1978) 3 SCC 544 : 1978 SCC (Cri) 468 : (1979) 1 SCR 192; Sita Ram v. State of U.P, (1979) 2 SCC 656 : 1979 SCC (Cri) 576 : (1979) 2 SCR 1085; Sunil Batra (II) v. Delhi Administration, (1980) 3 SCC 488 : 1980 SCC (Cri) 777 : (1980) 2 SCR 557; Jolly George Varghese v. Bank of Cochin, (1980) 2 SCC 360 : (1980) 2 SCR 913; Kasturi Lal Lakshmi Reddy v. State of J&K, (1980) 4 SCC 1 : (1980) 3 SCR 1338; Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608 : 1981 SCC (Cri) 212 : (1981) 2 SCR 516; Gurbachan Singh v. State of Bombay, 1952 SCR 737 : AIR 1952 SC 221 : 1952 Cri LJ 1147, referred to

However, following guidelines are laid down so as to ensure that the confession obtained in the pre-indictment interrogation by a police officer not lower in rank than a Superintendent of Police is not tainted with any vice but is in strict conformity with the well-recognised and accepted aesthetic principles and fundamental fairness:

(1) The confession should be recorded in a free atmosphere in the same language in which the person is examined and as narrated by him;

(2) The person from whom a confession has been recorded under Section 15(1) of the Act, should be produced before the Chief Metropolitan Magistrate or the Chief Judicial Magistrate to whom the confession is required to be sent under Rule 15(5) along with the original statement of confession, written or recorded on mechanical device without unreasonable delay;

(3) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate should scrupulously record the statement, if any, made by the accused so produced and get his signature and in case of any complaint of torture, the person should be directed to be produced for medical examination before a Medical Officer not lower in rank than of an Assistant Civil Surgeon;

(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, no police officer below the rank of an Assistant Commissioner of Police in the Metropolitan cities and elsewhere of a Deputy Superintendent of Police or a police officer of equivalent rank, should investigate any offence punishable under this Act of 1987.

This is necessary in view of the drastic provisions of this Act, more so when the Prevention of Corruption Act, 1988 under Section 17 and the Immoral Traffic Prevention Act, 1956 under Section 13, authorise only a police officer of a specified rank to investigate the offences under those specified Acts.

(5) The police officer if he is seeking the custody of any person for pre-indictment or pre-trial interrogation from the judicial custody, must file an affidavit sworn by him explaining the reason not only for such custody but also for the delay, if any, in seeking the police custody;

(6) In case, the person, taken for interrogation, on receipt of the statutory warning that he is not bound to make a confession and that if he does so, the said statement may be used against him as evidence, asserts his right to silence, the police officer must respect his right of assertion without making any compulsion to give a statement of disclosure;

The Central Government may take note of these guidelines and incorporate them by appropriate amendments in the Act and the Rules.

[Paras 263 and 368(9)]

Though it is entirely for the court trying the offence to decide the question of admissibility or reliability of a confession in its judicial wisdom strictly adhering to the law, it must, while so deciding the question should satisfy itself that there was no trap, no track and no importune seeking of evidence during the custodial interrogation and all the conditions required are fulfilled.

(Para 264)

In order to ensure higher level of scrutiny and applicability of TADA Act, there must be a screening Committee or a Review Committee constituted by the Central Government consisting of the Home Secretary, Law Secretary and other secretaries concerned of the various Departments to review all the TADA Act cases instituted by the Central Government as well as to have a quarterly administrative review, reviewing the States' action in the application of the TADA Act provisions in the respective States, and the incidental questions arising in relation thereto. Similarly, there must be a Screening or Review Committee at the State level constituted by the respective States consisting of the Chief Secretary, Home Secretary, Law Secretary, Director General of Police (Law and Order) and other officials as the respective Government may think it fit, to review the action of the enforcing authorities under the Act and screen the cases registered under the provisions of the Act and decide the further course of action in every matter and so on.

(Para 265)

When the validity of Section 15 is scrutinised in the above background, it must be held that the procedure prescribed under this Act cannot be said to be unjust, unfair and oppressive, offending Articles 14 and 21.

[Para 368(9)]

Per K. Ramaswamy, J. (dissenting)

It is settled law that conferment of power in a high ranking officer is presumed to be exercised according to law or rules. Such conferment of power may be prima facie presumed to be valid. But the crux of the question would be whether the power given as to the police officer unlike an independent agency from which the suspicion least generates is a civilised procedure.

(Para 393)

Any officer not below the rank of the Superintendent of Police, being the head of the District Police Administration responsible to maintain law and order is expected to be keen on cracking down the crime and would take all tough steps to put down the crime to create terror in the heart of the criminals. It is not the hierarchy of officers but the source and for removal of suspicion from the mind of the suspect and the objective assessor that built-in procedural safeguards have to be scrupulously adhered to in recording the confession and trace of the taint must be absent. It is, therefore, obnoxious to confer power on police officer to record confession under Section 15(1). If he is entrusted with the solemn power to record a confession, the appearance of objectivity in the discharge of the statutory duty would be seemingly suspect and inspire no public confidence. If the exercise of the power is allowed to be done once, may be conferred with judicial powers in a lesser crisis and be normalised in grave crisis, such an erosion is anathema to rule of law, spirit of judicial review and a clear negation of Article 50 of the Constitution and the constitutional creases. It is, therefore, unfair, unjust and unconscionable, offending Articles 14 and 21 of the Constitution.

(Para 406)

The procedure envisaged in Article 21 means the manner and method of discovering the truth. The constitutional human rights perspectives; the history of working of the relevant provisions in the Evidence Act and the wisdom behind Section 164 of the Code ignites inherent invalidity of sub-section (1) of Section 15 and the court would little afford to turn Nelson's blind eye to the above scenario and blissfully bank on Section 114 Ill. (e) of the Evidence Act that official Acts are done according to law and put the seal that sub-section (1) of Section 15 of the Act passes off the test of fair procedure and is constitutionally valid.

(Paras 406 and 399)

Conferment of judicial powers in higher degree on the police will erode public confidence in the administration of justice. The veil of expediency to try the cases by the persons acquainted with the facts and to track the problems posed or to strike down the crime or suppression thereof cannot be regarded as a valid ground to give primacy to the arbitrary or irrational or ultra vires action taken by the Government in appointing the police officers as Special Executive Magistrate, nor is the right of revision against his decision a solace. It not only sullies the stream of justice at its source but also chills the confidence of the general public and erodes the efficacy of rule of law and is detrimental to the rule of law.

(Para 399)

State of Maharashtra v. Sukhdev Singh, (1992) 3 SCC 700 : 1992 SCC (Cri) 705 : JT (1992) 4 SC 73; Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96 : 1983 SCC (Cri) 353 : AIR 1983 SC 378; V.M Ranga Rao v. State of A.P, (1985) 2 APLJ 361; Andrew R. Mallory v. USA, 354 US 449 : 1 L Ed 2d 1479 (1957); Winston Massiah v. United States, 377 US 201 : 12 L Ed 2d 246 (1964); William Malloy v. Patrick J. Hogan, 378 US 1 : 12 L Ed 2d 653 (1964); William Murphy v. Waterfront Commission of New York Harbor, 378 US 52 : 12 L Ed 2d 678 (1964); Ernesto A. Miranda v. State of Arizona, 384 US 436 : 16 L Ed 2d 694 (1966); Edward v. Arizona, 451 US 477 (1981); Arizona v. Robertson, 486 US 675 (1988), referred to

The further contention that the Parliament being competent to enact Section 15(1) of the Act, the effect of Sections 24 to 30 of Evidence Act can equally be taken away by employing non-obstante clause and that the legislature adopted the above device in its legislative claim to contain the escalated large scale crimes by organised terrorists and gangsters and the apprehended misuse is eliminated as it was vested in high ranking officer, cannot be given acceptance for the aforestated reasons.

(Para 407)

Article 50 enjoins the State to separate the judiciary from the executive. Having done so by the Code and having entrusted under Article 164 judicial duty on the Judicial Magistrate of First Class, conferment of selfsame power on Superintendent of Police under Section 15 by employing a non-obstante would not be just, fair and reasonable. Where two procedures coexist and classify one procedure to one set of accused and another one for some other accused, both must satisfy the test of Articles 14 and 21. It is true and courts also would take judicial notice that terrorists or organised criminals have committed and have been committing murders of innocent people in countless number, thereby rudely shaking the foundations of stable social order. Equally the lawless elements who flout the law with impunity need to be dealt with separately. But suppression of crime by harsh procedure should meet the test of Articles 14 and 21.

(Para 395)

A police officer is clearly a person in authority and insistence on the accused/suspect to answer his interrogation is a form of pressure, especially in the atmosphere of police station unless certain safeguards erasing duress are adhered to. Policy or rationale or object of the Act have little relevance in determining the constitutional validity of the offending provision. The court is not sitting over the policy of the State in enacting the law, nor at this stage to sift the evidence. The standard of fairness in recording confession under Section 15(1) of the Act must be within constitutionally sustainable parameters.

(Paras 398 and 394)

Thus it must be held that the confession recorded by police officer under Section 15(1) is unconstitutional. Yet the confession so recorded shall remain valid and would be considered at the trial or in appeal in accordance with law by virtue of the de facto doctrine and Article 233-A. Any judgment or order made and conviction rendered exercising powers under the Act and sentence imposed relying thereon does not become invalid or void. The operation of this judgment is postponed for a year from the date of the judgment and it is open to the Parliament to amend the section suitably. If no amendment is effected within the period or extended period Section 15(1) would thereafter become void.

(Paras 422 and 423)

Per Sahai, J. (dissenting)

There is a basic difference between the approach of a police officer and a judicial officer. A judicial officer is trained and tuned to reach the final goal by a fair procedure. The basis of a civilized jurisprudence is that the procedure by which a person is sent behind the bars should be fair, honest and just. A conviction obtained unfairly has never been countenanced by a system which is wedded to rule of law. A police officer is trained to achieve the result irrespective of the means and method which is employed to achieve it. So long the goal is achieved the means are irrelevant and this philosophy does not change by hierarchy of the officers. By their training and approach they are different. Procedural fairness does not have much meaning for them. Dignity of the individual and liberty of person — the basic philosophy of Constitution — has still not percolated and reached the bottom of the hierarchy as the constabulary is still not accountable to public and unlike British police it is highly centralised administrative instrumentality meant to wield its stick and spread awe by harsh voice more for the executive than for the law and society.

(Para 453)

The inadmissibility attaches to a confession recorded by a police officer not because of him but because of uncertainty if the accused was not made a witness against himself by forcing out something which he would not have otherwise stated. Further a confession made to a police officer for an offence committed irrespective of its nature in non-notified area is inadmissible. But the same police officer is beyond reproach when it comes to notified area. An offence under TADA Act is considered to be more serious as compared to the one under Indian Penal Code or any other Act. Normally graver the offence more strict the procedural interpretation. But here it is just otherwise. What is inadmissible for a murder under Section 302 is admissible even against a person who abets or is possessed of the arms under Section 5 of the Act. Giving power to police officer to record confession may be in line with what is being done in England and America. But that requires a change in outlook by the police. Before doing so the police force by education and training has to be made aware of their duties and responsibilities, as observed by Police Commission. The defect lies not in the personnel but in the culture. In a country where few are under law and there is no accountability, the cultural climate was not conducive for such a drastic change. Even when there was no Article 21, Article 20(3) and Article 14 of the Constitution any confession to police officer was inadmissible. It has been the established procedure for more than a century and an essential part of criminal jurisprudence. It was, therefore, necessary to bring about change in outlook before making a provision the merits of which are attempted to be justified on law existing in other countries. Section 15 of the TADA Act throws all established norms by making a confession to a police officer admissible only because it is recorded by a high police officer. Our social environment was not mature for such a drastic change as has been effected by Section 15. It is destructive of basic values of the constitutional guarantee.

(Paras 454 and 455)

A confession is an admission of guilt. The person making it states something against himself. Therefore it should be made in surroundings which are free from suspicion. Otherwise it violates the constitutional guarantee under Article 20(3) that no person accused of an offence shall be compelled to be a witness against himself. The word ‘offence’ used in the article should be given its ordinary meaning. It applies as much to an offence committed under TADA Act as under any other Act. The word, ‘compelled’ ordinarily means ‘by force’. This may take place positively and negatively. When one forces one to act in a manner desired by him it is compelling him to do that thing. Same may take place when one is prevented from doing a particular thing unless he agrees to do as desired. In either case it is compulsion. A confession made by an accused or obtained by him under coercion suffers from infirmity unless it is made freely and voluntarily. No civilised democratic country has accepted confession made by an accused before a police officer as voluntary and above suspicion, therefore, admissible in evidence. One of the established rule or norms accepted everywhere is that custodial confession is presumed to be tainted. The mere fact that the Legislature was competent to make the law, as the offence under TADA Act is one which did not fall in any State entry, did not mean that the Legislature was empowered to curtail or erode a person of his fundamental rights. Making a provision which has the effect of forcing a person to admit his guilt amounts to denial of the liberty. The class of offences dealt by TADA Act may be different than other offences but the offender under TADA Act is as much entitled to protection of Articles 20 and 21 as any other. The difference in nature of offence or the legislative competence to enact a law did not affect the fundamental rights guaranteed by Chapter III. Section 15 cannot be held to be valid merely because it is as a result of law made by a body which has been found entitled to make the law. The law must still be fair and just. A law which entitles a police officer to record confession and makes it admissible is thus violative of both Articles 20(3) and 21 of the Constitution. Thus the conclusion is that Section 15 is violative of Articles 20 and 21 of the Constitution and, therefore, is liable to be struck down.

[Paras 456 and 460(4)]

A.K Gopalan v. State of Madras, AIR 1950 SC 27 : 1950 SCR 88 : 51 Cri LJ 1383, referred to

Q. Terrorist and Disruptive Activities (Prevention) Act, 1987 — S. 16(1) (as amended by Act 43 of 1993) — Designated Court's discretion to hold proceedings in camera — Held, provision not unconstitutional — Constitution of India, Art. 14

R. Constitution of India — Arts. 14 and 21 — Open or public trial — Right to, not absolute — In exceptional circumstances trial can be held in camera — Criminal Procedure Code, 1973, Ss. 237(2), 327(2)

S. Terrorist and Disruptive Activities (Prevention) Act, 1987 — S. 16(2) & (3) — Identity, names and addresses of witnesses — Should normally be disclosed before commencement of trial when no application made by witness or by Public Prosecutor for keeping the identity and address secret nor any decision taken by court on its own motion in that regard — But can be kept secret in exceptional circumstances by the Designated Court in exercise of its discretion

T. Criminal Trial — Cross-examination — Object of — Identity, names and addresses of witnesses can be kept secret by court in exceptional circumstances — Fair trial would not be affected thereby — Evidence Act, 1872, Ss. 137 to 145

It was argued that Section 16(1) is violative of the provisions of Article 14 of the Constitution on the ground that this provision destroys the guarantee of an open trial and the proviso thereto transfers to the Public Prosecutor the rights of the accused as well as of the public in demanding an openness in conformity with fair trial to the discretion of the Public Prosecutor.

Held :

Per curiam

The challenge made to Section 16(1) does not require any consideration in view of the substitution of the newly introduced sub-section by Amendment Act 43 of 1994 giving discretion to the Designated Court either to hold or not to hold the proceedings in camera.

[Para 368(10); Para 372]

(1) The trials are traditionally open which is an indispensable attribute of the criminal justice. This characteristic flowed not merely from the public interest in seeing fairness and proper conduct in the administration of criminal trials, but, more important, the “therapeutic value” to the public of seeing its criminal laws in operation, purging the society of the outrage felt with the commission of many crimes. This is the accepted practice of guaranteeing a public trial to an accused as having its roots in the English Common Law heritage. However, though it is an indispensable attribute of the criminal justice, in exceptional circumstances there cannot be any legal ban in having the trial in camera. Though the criminal justice prevailing in our country recognises and accepts the practice of only open trial, there is an exception to such trial as contemplated under Section 237(2) of the Code of Criminal Procedure.

(Para 269)

(2) It is the jurisprudence of law that cross-examination is an acid-test of the truthfulness of the statement made by a witness on oath in examination-in-chief, the objects of which are:

(1) to destroy or weaken the evidentiary value of the witness of his adversary;

(2) to elicit facts in favour of the cross-examining lawyer's client from the mouth of the witness of the adversary party;

(3) to show that the witness is unworthy of belief by impeaching the credit of the said witness;

and the questions to be addressed in the course of cross-examination are to test his veracity; to discover who he is and what is his position in life; and to shake his credit by injuring his character.

(Para 278)

The identity of the witness is necessary in the normal trial of cases to achieve the above objects and the right of confrontation is one of the fundamental guarantees so that he could guard himself from being victimised by any false and invented evidence that may be tendered by the adversary party.

(Para 279)

However, notwithstanding the provisions of the Evidence Act and the procedure prescribed under the Code, there is no imposition of constitutional or statutory constraint against keeping the identity and address of any witness secret if some extraordinary circumstances or imperative situations warrant such non-disclosure of identity and address of the witnesses.

(Para 281)

Gurbachan Singh v. State of Bombay, 1952 SCR 737 : AIR 1952 SC 221 : 1952 Cri LJ 1147; Hira Nath Mishra v. Principal, Rajendra Medical College, (1973) 1 SCC 805; A.K Roy v. Union of India, (1982) 1 SCC 271 : 1982 SCC (Cri) 152 : (1982) 2 SCR 272, relied on

Under the provisions of the TADA Act, the right of cross-examination is not taken away but the identity, and addresses of the witnesses are permitted to be withheld. There is no substance in the submission that the withholding or the issuance of any direction not to disclose the identity, names and addresses of the witnesses prevents the accused from having a fair trial to which right he is otherwise legitimately entitled. This difficulty does not arise. In fact when the copies of the documents on which the prosecution proposes to rely upon are furnished to the accused with a memo of evidence under Section 173 of the Code, he is informed of the names and addresses of the witnesses.

(Para 280)

Under Section 16(2) of the 1987 Act, the Designated Court is given only a discretionary authority to keep the identity and address of any witness secret on the following three contingencies:

(1) On an application made by a witness in any proceedings before it; or

(2) on an application made by the Public Prosecutor in relation to such witness; or

(3) on its own motion.

(Para 286)

If neither the witness nor the Public Prosecutor has made an application in that behalf nor the court has taken any decision of its own then the identity and addresses of the witnesses have to be furnished to the accused. The measures are to be taken by the Designated Court under any one of the above contingencies so that a witness or witnesses may not be subjected to any harassment for having spoken against the accused.

(Para 287)

Generally speaking, when the accused persons are of bad character, the witnesses are unwilling to come forward to depose against such persons fearing harassment at the hands of those accused. The persons who are put for trial under this Act are terrorists and disruptionists. Therefore, the witnesses will all the more be reluctant and unwilling to depose at the risk of their life. The Parliament having regard to such extraordinary circumstances has thought it fit that the identity and addresses of the witnesses be not disclosed in any one of the above contingencies.

(Para 288)

Hira Nath Mishra v. Principal, Rajendra Medical College, (1973) 1 SCC 805; Russell v. Duke of Norfolk, (1949) 1 All ER 1091; Byrne v. Kinematograph Renters Society Ltd., (1958) 2 All ER 579 : (1958) 1 WLR 762, referred to

Nevertheless, in order to ensure the purpose and object of the cross-examination, the identity, names and addresses of the witnesses may be disclosed before the trial commences; but it should be subject to an exception that the court for weighty reasons in its wisdom may decide not to disclose the identity and addresses of the witnesses especially of the potential witnesses whose life may be in danger.

[Paras 290 and 368(11)]

Bimal Kaur Khalsa v. Union of India, AIR 1988 P&H 95 : (1988) 93 Punj LR 189 : 1988 Cri LJ 169, approved

Hence sub-sections (2) and (3) of Section 16 are not liable to be struck down.

[Para 368(11); Para 372]

U. Terrorist and Disruptive Activities (Prevention) Act, 1987 — S. 19 — Appeal — Traditional right of appeal and revision under CrPC denied — Provision for appeal direct to Supreme Court involving high expenditure and hardship — Held, not unconstitutional — However, having regard to the practical difficulties to be faced by the aggrieved person under the appeal provisions, the Parliament may devise a suitable mode of redress by making the necessary amendments in the appeal provisions

Per majority

The indisputable reality is that the Supreme Court is beyond the reach of an average person considering the fact of distance, expense etc. One could understand the right of appeal directly to the Supreme Court under Section 19 of the Act against any judgment pronounced, sentence passed or order made by a Designated Court solely under the provisions of TADA Act or under both the provisions of TADA Act and the ordinary criminal law. But it would be quite unreasonable to compel a person to prefer an appeal only to the Supreme Court even in a case wherein the trial was for charges under both the provisions of TADA Act and the ordinary or general criminal law and the trial has ended in acquittal of the offences punishable under the TADA Act but in conviction of the offences under the penal provisions of general law alone.

(Para 294)

There is no logic or convincing reasoning in providing no choice but forcing a person aggrieved by the judgment, sentence or order of the Designated Court passed only under the ordinary criminal law to prefer an appeal to the Supreme Court directly in which case the aggrieved person has to deny himself firstly, the right of appeal to the High Court and secondly, the benefit of approaching the Supreme Court under Article 136 of the Constitution. If every such person aggrieved by the judgment and order of the Designated Court passed under any criminal law other than the TADA Act has to approach the Supreme Court from far-flung areas, many of the persons suffering from financial constraints may not even think of preferring an appeal at all but to languish in jail indefinitely on that count. The statutory compulsion, in such a situation, would not only deny fair play and justice to such person but also amount to destruction of the professed object of criminal justice system in the absence of any other valid reason for an abnormal procedure.

(Para 295)

This predicament and practical difficulty an aggrieved person has to suffer can be avoided if a person who is tried by the Designated Court for offences under the TADA Act but convicted only under other penal provisions and is acquitted of the offences under the provisions of TADA Act, is given the right of preferring an appeal before the next appellate court as provided under the Code of Criminal Procedure and if the State prefers an appeal against the acquittal of the offence under the provisions of TADA Act then it may approach the Supreme Court for withdrawal of the appeal or revision, as the case may be, preferred by such person to the Supreme Court so that both the cases may be heard together.

(Para 296)

Parliament may take note of the practical difficulties faced by the aggrieved persons under the appeal provisions and devise a suitable mode of redress by making the necessary amendments in the appeal provisions. This does not, however, mean that the existing appeal provisions are constitutionally invalid.

[Paras 297 and 368(12)]

Syed Qasim Razvi v. State of Hyderabad, 1953 SCR 589 : AIR 1953 SC 156 : 1953 Cri LJ 862; V.C Shukla v. State (Delhi Admn.), 1980 Supp SCC 249 : 1980 SCC (Cri) 849 : AIR 1980 SC 1382, referred to

Per K. Ramaswamy, J. (concurring)

Though expeditious trial and disposal of the cases and appeals is one of the aims of the Act, but there is considerable force in the contention that many an accused being indigent, cannot effectively pursue the remedy of appeal in the Supreme Court due to oppressive distance and heavy litigation costs, conferment of appellate power on the High Court would be just and fair remedy. Yet it being a legislative policy, it would be left to the wisdom of the Parliament to decide and suitably amend the Act, keeping in view Article 39-A which itself is a fundamental right to the indigent. The remedy of appeal to the High Court would be easily accessible at the State level, lest the poor may be constrained to forego the remedy of appeal. The right to approach the Supreme Court under Article 136 has constitutionally been preserved to everyone.

(Para 420)

Per Sahai, J. (concurring)

The effect of extension of the Act even to far off States is that for every sentence, may be under Section 3 or 4 or any other section, one has to approach the Supreme Court. In many cases, the remedy of appeal may be illusory. For instance, one may be prosecuted under Sections 3, 4 and 5 or under any other section and provision. He may be acquitted for the offences under Sections 3 and 4 and yet may be convicted under other sections or provisions for minor offences which were tried by the Designated Court by virtue of Section 12 of the Act. He may not be able to approach the Supreme Court because of enormous expenditure and exorbitant legal expenses involved in approaching the Supreme Court. It should not be forgotten that ours is a vast country with majority on the poorer side. The knowledge of economic inability of sizeable section of the society to approach the Supreme Court by way of appeal may result in arbitrary exercise of power and excesses of the police. A provision for appeal to the Supreme Court in minor cases may result in defeating the remedy itself. Inability to file appeal due to financial reasons in petty matters may amount to breach of guarantee under Articles 14 and 21 of the Constitution. It may in many cases be denial of justice. I would, therefore, suggest that it may be examined if a proviso to sub-section (1) of Section 19 can be added that a person convicted of any offence other than Sections 3 and 4 of the Act shall be entitled to file an appeal in the High Court under whose jurisdiction the Designated Court is situated. Further in case the State files an appeal against acquittal of the accused under Sections 3 and 4 in the Supreme Court then the appeal of the accused filed in the High Court shall stand, automatically, transferred to the Supreme Court and shall be connected and heard along with appeal filed by the State. The State on such transfer should allow the accused to have a counsel of his choice the expenses for which should be borne by the State.

[Paras 457 and 460(5)]

V. Terrorist and Disruptive Activities (Prevention) Act, 1987 — Ss. 20(3) and (4)(a) (as amended by Act 43 of 1993) — Inclusion of Executive Magistrate or Special Executive Magistrate within the purview of Ss. 164 and 167 CrPC — Held, not violative of Arts. 50, 14 and 21 — Likewise S. 15(a) of Special Courts Act also does not suffer from any infirmity — Executive Magistrates also constitute a class of criminal court — Executive Magistrates are judicial officers — However, whenever Judicial Magistrate is available, he should record confession or statement in presence of Executive Magistrate — Terrorist Affected Areas (Special Courts) Act, 1984, S. 15(a) — Criminal Procedure Code, 1973, Ss. 164(1), 167, 3, 6, 20(1), (4) — Constitution of India, Arts.. 50, 14 and 21

A reading of sub-section (3) of Section 20 of TADA Act and sub-section (1) of Section 164 CrPC in juxtaposition shows that Section 164(1) of the Code is made substantially applicable in relation to a case involving an offence punishable under the TADA Act or any rule made thereunder. But the modification is only to the extent that the Executive Magistrate and Special Executive Magistrate are included along with the Metropolitan Magistrate and Judicial Magistrate and they are all empowered to record the confession or statement. It was contended that the inclusion of the Executive Magistrate or Special Executive Magistrate to record any confession or statement is with an oblique motive of making it possible that the confession or statement may be recorded and admitted in evidence even if the confessions or statements are not made voluntarily but are extorted under coercion or inducement. The empowering of these two Magistrates, it was contended, is against the very principle of separation of judiciary from the executive enunciated in Article 50 of the Constitution, and therefore, this provision is bad under Articles 14 and 21 of the Constitution. It was further stated that the conferment of judicial functions on the newly added non-judicial authorities, who cannot be expected to have judicial integrity and independence, is totally opposed to the fundamental principle of governance contained in Article 50 of the Constitution.

Held :

Per curiam

(1) The Executive Magistrates are also brought in as one of the classes of criminal courts in every State. This revised set up and the allocation of magisterial functions between the two categories of Magistrates, judicial under the control of the High Court and the executive under the control of the State Government, the new Code has provided for, make for the simple scheme of separation of the judiciary from the executive on an all India basis. The Executive Magistrates have not been further classified evidently for the reason that the judicial functions to be performed by the Executive Magistrates under the new Code are very few. Broadly speaking the functions which are essentially of judicial nature are for the Judicial Magistrates and the functions which are of police and administrative nature are for the Executive Magistrates as appears from the rules of construction contained in sub-section (4) of Section 3. When Section 6 brings Executive Magistrates' Courts as one of the classes of criminal courts, it must be held that it is acting as a criminal court. The orders passed by the criminal courts inclusive of the Executive Magistrates are revisable as having been passed in ‘judicial proceedings’. There is no classification or gradation of the Courts of Executive Magistrates but the Special Executive Magistrate is the one appointed by the State Government for a particular area or for the purpose of particular functions.

(Para 305)

R. Subramaniam v. Commissioner of Police, AIR 1964 Mad 185 : (1964) 1 Cri LJ 519, relied on

Therefore, merely because the Executive Magistrates and Special Executive Magistrates are included along with the other Judicial Magistrates in Section 164(1) of the Code and empowered with the authority of recording confessions in relation to the case under the TADA Act, it cannot be said that it is contrary to the accepted principles of criminal jurisprudence and that the Executive Magistrates and Special Executive Magistrates are personam outside the ambit of machinery for adjudication of criminal cases.

(Para 309)

The Executive Magistrates while exercising their judicial or quasi-judicial functions though in a limited way within the frame of the Code of Criminal Procedure, which judicial functions are normally performed by Judicial Magistrates can be held to be holding the judicial office. Therefore, the contention that the conferment of judicial functions on the Executive Magistrates and Special Executive Magistrates is opposed to the fundamental principle of governance contained in Article 50 of the Constitution cannot be countenanced. Resultantly, it is held that sub-section (3) of Section 20 of the TADA Act does not offend either Article 14 or Article 21 and hence this sub-section does not suffer from any constitutional invalidity.

(Para 316)

Statesman (P) Ltd. v. H.R Deb, (1968) 3 SCR 614 : AIR 1968 SC 1495; Shree Hanuman Foundries v. H.R Deb, Matter No. 120 of 1961, decided on July 28, 1965; Shri Kumar Padma Prasad v. Union of India, (1992) 2 SCC 428 : 1992 SCC (L&S) 56 : (1992) 20 ATC 239; Chandra Mohan v. State of U.P, (1967) 1 SCR 77 : AIR 1966 SC 1987; Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549 : (1955) 2 SCR 225, relied on

Though Section 20(3) is constitutionally valid, but in order to remove the apprehension that the Executive Magistrates and the Special Executive Magistrates who are under the control of the State may not be having judicial integrity and independence as possessed by the Judicial Magistrates and the recording of confessions and statements by those Executive Magistrates may not be free from any possible oblique motive, it would be always desirable and appreciable that a confession or statement of a person is recorded by the Judicial Magistrate whenever the Magistrate is available in preference to the Executive Magistrates unless there is compelling and justifiable reason to get the confession or statement, recorded by the Executive or Special Executive Magistrates.

(Para 317)

(2) The modification in sub-section (4)(a) of Section 20 is in the same line of sub-section (3); in that the Executive Magistrate and the Special Executive Magistrate are included along with the Judicial Magistrate. Therefore, whenever a person is arrested for an offence under the provisions of TADA Act, the arrestee can be transmitted to the Judicial Magistrate or the Executive Magistrate or the Special Executive Magistrate though the transmission of the accused under Section 167(1) for other offences is still only to the Judicial Magistrate. For the reasons mentioned above while disposing the submission made with reference to sub-section (3) of Section 20, it must be held that the criticism that the inclusion of Executive Magistrate and Special Executive Magistrate in sub-section (1) of Section 167 is with an ulterior motive, cannot be countenanced and this provision cannot be said to be unconstitutional.

(Paras 319 and 322)

Bimal Kaur Khalsa v. Union of India, AIR 1988 P&H 95 : (1988) 93 Punj LR 189 : 1988 Cri LJ 169, overruled

Thus sub-section (3) and (4)(a) of Section 20 do not suffer from any infirmity on account of the inclusion of the Executive Magistrate and Special Executive Magistrate within the purview of Sections 164 and 167 of the Code of Criminal Procedure in respect of their application in relation to a case involving an offence punishable under the TADA Act or any rule made thereunder. Likewise, clause (a) of Section 15 of the Special Courts Act, 1984 does not suffer from any infirmity.

[Para 368(13); Para 372]

W. Terrorist and Disruptive Activities (Prevention) Act, 1987 — S. 20(7) — Exclusion of benefit of S. 438 CrPC regarding anticipatory bail — Held, not violative of Art. 21 — Constitution of India, Art. 21

X. Statute Law — New provision in the statute creating a new right — Can be taken away by subsequent enactment

Y. Criminal Procedure Code (U.P Amendment) Act, 1976 — S. 9 — Deleting the operation of S. 438 CrPC — Held, provision valid and not violative of Arts. 14, 19 and 21 — State legislature competent to do so — Act having been applied throughout the State, there is no discrimination — Constitution of India, Art. 254(2)

Per curiam

(1) Both the Parliament as well as the State Legislatures have got legislative competence to enact any law relating to the Code of Criminal Procedure. No provision relating to anticipatory bail was in the old Code and it was introduced for the first time in the present Code of 1973 on the suggestion made of the Forty-first Report of the Law Commission and the Joint Committee Report. One of the reasons given by the Law Commission for its suggestions to introduce the provision for anticipatory bail, that reason being “… where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail”. Thus a person accused of non-bailable offence, who is likely to abscond or otherwise misuse his liberty while on bail, will have no justification to claim the benefit for anticipatory bail. Can it be said with certainty that terrorists and disruptionists who create terrorism and disruption and inject sense of insecurity, are not likely to abscond or misuse their liberty if released on anticipatory bail. Evidently, the Parliament has thought it fit not to extend the benefit of Section 438 to such offenders.

(Paras 327 and 328)

Section 438 is a new provision incorporated in the present Code creating a new right. If that new right is taken away, it cannot be said that the removal of Section 438 is violative of Article 21. In Gurbaksh Singh, there is no specific statement that the removal of Section 438 at any time will amount to violation of Article 21.

[Paras 329 and 368(14); Para 372]

Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 465 : (1980) 3 SCR 383, distinguished

Bimal Kaur Khalsa v. Union of India, AIR 1988 P&H 95 : (1988) 93 Punj LR 189 : 1988 Cri LJ 169, approved

(2) In view of the discussion made in relation to Section 20(7) of the TADA Act and of the legislative competence of the State, the contention that Section 9 of the Code of Criminal Procedure (U.P Amendment) Act, 1976 is violative of Articles 14, 19 and 21 of the Constitution has no merit and as such has to be rejected.

[Paras 334 and 368(15); Para 372]

The State Legislature is competent to amend Central Act. The Legislature has passed Act No. 16 of 1976 in exercise of powers under List III (Concurrent List) of the Seventh Schedule and deleted Section 438 of the Code. Moreover, the Amendment Act which has received the assent of the President of India on 30-4-1976 by virtue of Article 254(2) of the Constitution prevails in U.P State, notwithstanding any prior law made by the Parliament. As the Act is applied throughout the State, there is no question of discrimination in the application of this provision in the State of Uttar Pradesh.

[Paras 333 and 368(15); Para 372]

U.P Electric Supply Co. Ltd. v. R.K Shukla, (1969) 2 SCC 400, relied on

Z. Terrorist and Disruptive Activities (Prevention) Act, 1987 — S. 20(8) and (9) — Conditions for release on bail — Held, provisions not violative of Art. 21 — Sub-section (8) is in consonance with S. 437 CrPC and source of power for release on bail is S. 437 and not S. 439 CrPC — While exercising power court should keep in mind not only liberty of the accused but also the interest of the victims, collective interest of the community and safety of the nation — Criminal Procedure Code, 1973, Ss. 437 and 439

Per curiam

Sub-section (8) which imposes a complete ban on release on bail against the accused of an offence punishable under this Act minimises or dilutes that ban under two conditions, those being (1) the Public Prosecutor must be given an opportunity to oppose the bail application for such release; and (2) where the Public Prosecutor opposes the bail application the court must be satisfied that the two conditions, namely, (a) there are reasonable grounds for believing that the person accused is not guilty of such offence and (b) he is not likely to commit any offence while on bail. Sub-section (9) qualifies sub-section (8) to the effect that the above two limitations imposed on grant of bail specified in sub-section (8) are in addition to the limitations under the Code or any other law for the time being in force on granting of bail. If either of the two conditions mentioned therein is not satisfied, the ban operates and the accused person cannot be released on bail but of course it is subject to Section 167(2) as modified by Section 20(4) of the TADA Act in relation to a case under the provisions of TADA Act. The conditions imposed under Section 20(8)(b) are in consonance with the conditions prescribed under clauses (i) and (ii) of sub-section (1) of Section 437 and clause (b) of sub-section (3) of that section. Section 439 CrPC cannot be availed of for grant of bail in cases under the TADA Act. The condition that “there are grounds for believing that he is not guilty of an offence”, which condition in different form is incorporated in other Acts such as clause (i) of Section 437(1) of the Code and Section 35(1) of FERA and 104(1) of the Customs Act, cannot be said to be an unreasonable condition infringing the principle of Article 21.

[Paras 342, 345, 347 and 349 and 368(16); Para 372]

Usmanbhai Dawoodbhai Memon v. State of Gujarat, (1988) 2 SCC 271 : 1988 SCC (Cri) 318, affirmed

Gudikanti Narasimhulu v. Public Prosecutor, (1978) 1 SCC 240 : 1978 SCC (Cri) 115 : (1978) 2 SCR 371, referred to

Balchand Jain v. State of M.P, (1976) 4 SCC 572 : 1976 SCC (Cri) 689 : (1977) 2 SCR 52; Ishwar Chand v. State of H.P, ILR 1975 HP 569, distinguished

Bimal Kaur Khalsa v. Union of India, AIR 1988 P&H 95 : (1988) 93 Punj LR 189 : 1988 Cri LJ 169, overruled

No doubt, liberty of a citizen must be zealously safeguarded by the courts; nonetheless the courts while dispensing justice in cases like the one under the TADA Act, should keep in mind not only the liberty of the accused but also the interest of the victim and their near and dear and above all the collective interest of the community and the safety of the nation so that the public may not loose faith in the system of judicial administration and indulge in private retribution.

(Para 351)

However, the invocation of the provisions of TADA Act in cases, the facts of which do not warrant, is nothing but sheer misuse and abuse of the Act by the police. Unless, the public prosecutors rise to the occasion and discharge their onerous responsibilities keeping in mind that they are prosecutors on behalf of the public but not the police and unless the Presiding Officers of the Designated Courts discharge their judicial functions keeping in view the fundamental rights particularly of the personal right and liberty of every citizen as enshrined in the Constitution to which they have been assigned the role of sentinel on the qui vive, it cannot be said that the provisions of TADA Act are enforced effectively in consonance with the legislative intendment.

(Para 352)

State of Maharashtra v. Anand Chintaman Dighe, (1990) 1 SCC 397 : 1990 SCC (Cri) 142, relied on

AA. Terrorist and Disruptive Activities (Prevention) Act, 1987 — Ss. 20(8) and 19 — High Court's jurisdiction under Art. 226 to entertain application for bail of persons indicted under the Act or against the proceedings or other offences committed in the course of same transaction covered by TADA Act — Considerations of judicial pragmatism, concomitance between Supreme Court and High Courts calling for observance of comity and self-imposed limitation — Held, per majority, Sahai, J. concurring, High Court should not normally entertain such applications, but in extreme circumstances its jurisdiction is not excluded — Per K. Ramaswamy, J. High Court should exercise self-discipline and decline to entertain matters covered by the Act, including S. 19 — Constitution of India, Arts.. 226, 227

AB. Constitution of India — Art. 226 — Scope of High Court's jurisdiction under — Jurisdiction cannot be taken away by legislation — Exclusion of jurisdiction by doctrine of concomitance — Jurisdiction of superior courts discussed — Decision of superior courts are conclusive as to all relevant matters thereby decided including its own jurisdiction — Cannot be impeached collaterally — ‘Conclusive’ — Meaning of — Words and phrases

Per majority

The legislative history and the object of TADA Act indicate that the special Act has been enacted to meet challenges arising out of terrorism and disruption. Special provisions are enacted in the Act with regard to the grant of bail and appeals arising from any judgment, sentence or order (not being an interlocutory order) of a Designated Court etc. The overriding effect of the provisions of the Act (i.e Section 25 of TADA Act) and the Rules made thereunder and the non-obstante clause in Section 20(7) reading, “Notwithstanding anything contained in the Code….” clearly postulate that in granting of bail, the special provisions alone should be made applicable. If any party is aggrieved by the order, the only remedy under the Act is to approach the Supreme Court by way of an appeal. If the High Courts entertain bail applications invoking their extraordinary jurisdiction under Article 226 and pass orders, then the very scheme and object of the Act and the intendment of the Parliament would be completely defeated and frustrated. But at the same time it cannot be said that the High Courts have no jurisdiction. Though the High Courts have very wide powers under Article 226, the very vastness of the powers imposes on it the responsibility to use them with circumspection and in accordance with the judicial consideration and well established principles. If the High Court is inclined to entertain any application under Article 226, that power should be exercised most sparingly and only in rare and appropriate cases in extreme circumstances. What those rare cases are and what would be the circumstances that would justify the entertaining of applications under Article 226 cannot be put in strait-jacket. However, the judicial discipline and comity of courts require that the High Courts should refrain from exercising their jurisdiction in entertaining bail applications in respect of an accused indicted under the special Act since the Supreme Court has jurisdiction to interfere and correct the orders of the High Courts under Article 136.

[Paras 359 and 368(17)]

State of Maharashtra v. Abdul Hamid Haji Mohammed, (1994) 2 SCC 664, affirmed

Rafiq Abid Patel v. Inspector of Police, Thane, 1992 Cri LJ 394 (Bom); Writ Petition (Cri) No. 458 of 1991, decided on April 25, 1991; Waryam Singh v. Amarnath, 1954 SCR 565 : AIR 1954 SC 215; State of Gujarat v. Vakhtsinghji Sursinghji Vaghela, (1968) 3 SCR 692 : AIR 1968 SC 1481; Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ram Tahel Ramnand, (1972) 1 SCC 898; Mohd. Yunus v. Mohd. Mustaqim, (1983) 4 SCC 566; Mani Nariman Daruwala v. Phiroz N. Bhatena, (1991) 3 SCC 141; Narcotics Control Bureau v. Kishan Lal, (1991) 1 SCC 705 : 1991 SCC (Cri) 265, referred to

Usmanbhai Dawoodbhai Memon v. State of Gujarat, (1988) 2 SCC 271 : 1988 SCC (Cri) 318, distinguished

Per Sahai, J. (concurring)

The power given to High Court under Article 226 is an extraordinary power not only to correct the manifest error but also to exercise it for sake of justice. Under the scheme of the Constitution a High Court is the highest court for purposes of exercising civil, appellate, criminal or even constitutional jurisdiction so far that State is concerned. The jurisdiction possessed by it before coming into force of the Constitution was preserved by Article 225 and by Articles 226 and 227 an extraordinary jurisdiction was conferred on it to ensure that the subordinate authorities act not only in accordance with law but they also function within the framework of law. That jurisdiction of the High Court has not been taken away and in fact could not be taken away by legislation. Since the High Court under the Constitution is a forum for enforcement of fundamental right of a citizen it cannot be denied the power to entertain a petition by a citizen claiming that the State machinery was abusing its power and was acting in violation of the constitutional guarantee. Rather it has a constitutional duty and responsibility to ensure that the State machinery was acting fairly and not on extraneous considerations. The High Court has jurisdiction to entertain a petition under Article 226 in extreme cases. What are such extreme cases cannot be put in a strait-jacket. But the few on which there can be hardly any dispute are if the High Court is of opinion that the proceedings under TADA Act were an abuse of process of court or taken for extraneous considerations or there was no material on record that a case under TADA Act was made out. If it be so then there is no reason why should the High Court not exercise its jurisdiction and grant bail to the accused in those cases where one or the other exceptional ground is made out. Therefore as regards jurisdiction of the High Court to entertain an application for bail under Article 226 the conclusion is that the High Courts being constitutionally obliged to ensure that any authority which exercises judicial and quasi-judicial powers in its jurisdiction functions within the framework of law, are entitled to entertain the petition to determine if the proceedings were not an abuse of process of court. But while exercising discretion the court must not be oblivious of the sensitivity of the legislation and the social objective inherent in it and, therefore, should exercise it for the sake of justice in rare and exceptional cases the details of which cannot be fixed by any rigid formula.

[Paras 459 and 460(6)]

State of Maharashtra v. Abdul Hamid Haji Mohammed, (1994) 2 SCC 664; Kharak Singh v. State of U.P, (1964) 1 SCR 332 : AIR 1963 SC 1295 : (1963) 2 Cri LJ 329; Paras Ram v. State of Haryana, (1992) 4 SCC 662 : 1993 SCC (Cri) 13; State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426; Usmanbhai Dawoodbhai Memon v. State of Gujarat, (1988) 2 SCC 271 : 1988 SCC (Cri) 318, relied on

Narcotics Control Bureau v. Kishan Lal, (1991) 1 SCC 705 : 1991 SCC (Cri) 265; Waryam Singh v. Amarnath, 1954 SCR 565 : AIR 1954 SC 215; State of Gujarat v. Vakhtsinghji Sursinghji Vaghela, (1968) 3 SCR 692 : AIR 1968 SC 1481; Mohd. Yunus v. Mohd. Mustaqim, (1983) 4 SCC 566, referred to

Per K. Ramaswamy, J. (dissenting)

The jurisdiction and power of the High Court under Article 226 of the Constitution is undoubtedly constituent power and the High Court has untramelled powers and jurisdiction to issue any writ or order or direction to any person or authority within its territorial jurisdiction for enforcement of any of the fundamental rights or for any other purpose. The legislature has no power to divest the court of the constituent power engrafted under Article 226. A superior court is deemed to have general jurisdiction and the law presumes that the court has acted within its jurisdiction. The judgment of a superior court unreservedly is conclusive as to all relevant matters thereby decided, while the judgment of the inferior court involving a question of jurisdiction is not final. The superior court, therefore, has jurisdiction to determine its own jurisdiction, may be rightly or wrongly. Therefore, the court in an appropriate proceeding may erroneously exercise jurisdiction. It does not constitute want of jurisdiction, but it impinges upon its propriety in the exercise of the jurisdiction. Want of jurisdiction can be established solely by a superior court and in practice no decision can be impeached collaterally by an inferior court. However, acts done by a superior court are always deemed valid wherever they are relied upon. The exclusion thereof from the rule of validity is indispensable in its finality. The superior courts, therefore, are the final arbiters of the validity of the acts done not only by other inferior courts or authorities, but also their own decisions. Though they are immune from collateral attack, but to avoid confusion the superior court's decisions lay down the rules of validity; are not governed by those rules. The valid decision is not only conclusive, it may affect, but it is also conclusive in proceedings where it is sought to be collaterally impeached. However, the term conclusiveness may acquire other specific meanings. It may mean that the finding upon which the decision is founded — as distinct or it is the operative part — or has to be conclusive or these findings bind only parties on litigated disputes or that the organ which has made the decision is itself precluded from revoking, rescinding or otherwise altering it.

(Para 427)

The decision or order or a writ issued by the High Court under Article 226 is subject to judicial review by an appeal to the Supreme Court under Article 136 whose sweep is wide and untramelled. The question, therefore, is whether the High Court would be proper to exercise its power under Article 226 over the proceedings or the offences, or the other offences committed in the course of the same transaction, covered under the TADA Act.

(Para 428)

The jurisdiction of the High Court though was not expressly excluded under the Act, by necessary implication it gets eclipsed not so much that it lacked constituent power but by doctrine of concomitance. Hence, though the High Court has jurisdiction and power under Article 226 to issue appropriate writ or direction or order in exceptional cases at the behest of a person accused of an offence triable under the Act or offence jointly triable with the offences under the Act, the High Court being amenable to appellate jurisdiction and judicial review under Article 136 to the Supreme Court, and the Supreme Court having been statutorily invested with the power and jurisdiction under Section 19 of the Act, judicial pragmatism concomitance between the Supreme Court and the High Court, the latter must observe comity and self-imposed limitation, on the exercise of the power under Article 226 and refuse to pass an order or to give direction which would inevitably result in exercising the jurisdiction and power conferred on the Supreme Court under Section 19 of the Act or sitting over the appellate orders passed by the Supreme Court. Exercise of the power — even in exceptional cases or circumstances is, therefore, incompatible with or inconsistent with comity. Therefore, the only check up on a court's exercise of power is one's own sense of self-restraint and due respect to comity. Judicial pragmatism, therefore, poignantly point, per force to observe constitutional propriety and comity imposing self-discipline to decline to entertain proceedings under Article 226 over the matters covered under Section 19 or the matters in respect of which remedy under Section 19 is available or taken cognizance; issue of process or prima facie case in the complaint or charge-sheet etc., in other words all matters covered under the Act. Thus the High Court's jurisdiction got eclipsed and denuded of the powers over the matters covered under the Act.

(Paras 428 and 435)

Connolly Brothers Ltd., Re; Wood v. Connolly Brothers Ltd., (1911) 1 Ch 731 : 80 LJ Ch 409; Imperial Tobacco Ltd. v. Attorney General, (1979) 2 All ER 592 : (1979) 2 WLR 805; Santoshi Tel Utpadak Kendra v. Dy. C.S.T, (1981) 3 SCC 466 : 1981 SCC (Tax) 253; Tilokchand & Motichand v. H.B Munshi, C.S.T, (1969) 1 SCC 110 : AIR 1970 SC 898; Lakshmi Charan Sen v. A.K.M Hassan Uzzaman, (1985) 4 SCC 689 : 1985 Supp 1 SCR 493; Pete Darr v. C.P Burford, 339 US 200 : 94 L Ed 761 (1949); Evelle J. Younger v. John Harris, 401 US 37 : 27 L Ed 2d 669 (1971); Lawrence S. Huffman v. Pursue Ltd., 420 US 592 : 43 L Ed 2d 482 (1975); United States v. Edgar H. Gillock, 445 US 360 : 63 L Ed 2d 454 (1980), relied on

AC. Terrorist and Disruptive Activities (Prevention) Act, 1987 — S. 22 — Identification of accused on the basis of photograph — Held, S. 22 invalid and hence struck down

Per curiam

The is much force in the submission that Section 22 is unintelligible and that it is quite impossible to identify any person on the basis of his photograph especially in the present day when trick photographs are being taken. If the evidence regarding the identification on the basis of a photograph is to be held to have the same value as the evidence of a test identification parade, gross injustice to the detriment of the persons suspected may result. Therefore, Section 22 has to be struck down.

[Paras 360, 361 and 368(18); Para 372]

AD. Terrorist and Disruptive Activities (Prevention) Act, 1987 — S. 2(1)(f) — Terrorist Affected Areas (Special Courts) Act, 1984 — S. 2(1)(i) — Notified area — Periodical review of, by State Govt. to decide whether to denotify any area suggested — Review/Screening Committee may also be empowered to scrutinise the prevailing situation and make recommendations to the Govt.

Per majority

The State Governments should review periodically and take decision either to denotify any area or continue the same as ‘notified area’ and act accordingly. The Screening or Review Committee as suggested while dealing with Section 15 of the 1987 Act, may also be empowered by the respective Governments to scrutinise the prevailing situations and to make recommendations to the State Governments, recommending either to continue or to discontinue the notification. The Supreme Court's opinion in this regard may also be followed in the case of declaring any area as “terrorist affected area”.

(Para 362)

AE. Terrorist and Disruptive Activities (Prevention) Act, 1987 — Deprivation of right to fair trial alleged — Challenge based on ground that in absence of proclamation of emergency when fundamental rights are available right to fair trial cannot be whittled down and even during emergency, rights under Arts. 20 and 21 are saved under Art. 359(1) by virtue of the 44th Amendment — Held, not sustainable — It is for Parliament to enact any law without infringing any of the provisions of the Constitution and within its legislative competence depending upon the need for such enactment — Constitution of India, Arts.. 359(1), 20 and 21 (Per majority)

(Paras 92 to 96)

AF. Terrorist and Disruptive Activities (Prevention) Act, 1987 — Expeditious disposal of cases by Designated Courts commended

Per majority

Keeping in view the doctrine of ‘speedy trial’ which is read into Article 21 as an essential part of the fundamental right to life and liberty guaranteed and preserved under our Constitution and which concept is manifested in the Special Courts Act, 1984 and TADA Act, 1987, the Designated Courts should dispose of the cases pending before them without giving room for any complaint of unreasonable delay. The Government concerned should ensure that no vacancy of Presiding Officer of the Designated Court remains vacant and should take necessary steps to fill up the vacancy as soon as any vacancy arises and also if necessitated, should constitute more Designated Courts so that the undertrials charged with the provisions of TADA Act do not languish in jail indefinitely and the cases are disposed of expeditiously.

(Para 369)

AG. Constitution of India — Art. 14 — Classification — Test of valid classification — Legislative classification for different treatment permissible so long as there is reasonable basis for such classification

Per majority

The principle of legislative classification is an accepted principle whereunder persons may be classified into groups and such groups may differently be treated if there is a reasonable basis for such difference or distinction. The rule of differentiation is that in enacting laws differentiating between different persons or things in different circumstances which govern one set of persons or objects such laws may not necessarily be the same as those governing another set of persons or objects so that the question of unequal treatment does not really arise between persons governed by different conditions and different set of circumstances.

(Para 218)

The limit of valid classification must not be arbitrary but scientific and rational. It must always rest upon some real and substantial distinction bearing reasonable and just relation to the needs in respect of which the classification is made.

(Para 219)

In order to consider the question as to the reasonableness of the distinction and classification, it is necessary to take into account the objective for such distinction and classification which of course need not be made with mathematical precision. Suffice, if there is little or no difference between the persons and the things which have been grouped together and those left out of the groups, the classification cannot be said to be a reasonable one. In making the classification, various factors have to be taken into consideration and examined as to whether such a distinction or classification justifies the different treatment and whether they subserve the object sought to be achieved.

(Para 220)

Chiranjit Lal Chowdhari v. Union of India, 1950 SCR 869 : AIR 1951 SC 41; Ram Krishna Dalmia v. Justice S.R Tendolkar, 1959 SCR 279 : AIR 1958 SC 538; Special Courts Bill, 1978, In re, (1979) 1 SCC 380 : (1979) 2 SCR 476, relied on

AH. Constitution of India — Arts. 20(3) and 21 — Protection against self-incrimination under Art. 20(3) forms part of right to life and liberty under Art. 21

AI. Constitution of India — Arts. 21 and 14 — Procedure established by law — Procedural law as well as substantive law must pass the test of Art. 14 and must be just and fair

Per majority

In our Constitution as well as procedural law and law of Evidence, there are certain guarantees protecting the right and liberty of a person in a criminal proceeding and safeguards in making use of any statement made by him. Article 20(3) of our Constitution embodies the principle of protection against compulsion of self-incrimination. This principle is also enunciated by the Fifth Amendment to the U.S Constitution. The above principle is recognised to a substantial extent in the criminal administration of justice in our country by incorporating various statutory provisions. One of the components of the guarantee contained in Article 20(3) of the Constitution is that it is a protection against compulsion resulting in the accused of any offence giving evidence against himself. Thus an accused or a person accused of any offence is protected by the constitutional provisions as well as the statutory provisions to the extent that no self-incriminating statement made by an accused to the police officer while he is in custody, could be used against such maker. The above constitutional and statutory procedural guarantees and safeguards are in consonance with the expression, “according to procedure established by law” enshrined in Article 21 of the Constitution within which fold the principle of just and fair trial is read into.

(Paras 205, 206, 207, 214 and 215)

M.P Sharma v. Satish Chandra, District Magistrate, Delhi, 1954 SCR 1077 : AIR 1954 SC 300 : 1954 Cri LJ 865; Raja Narayanlal Bansilal v. Maneck Phiroz Mistry, (1961) 1 SCR 417 : AIR 1961 SC 29 : (1960) 30 Comp Cas 644; State of Bombay v. Kathi Kalu Oghad, (1962) 3 SCR 10 : AIR 1961 SC 180 : (1961) 2 Cri LJ 856; Nandini Satpathy v. P.L Dani, (1978) 2 SCC 424 : 1978 SCC (Cri) 236, relied on

Per K. Ramaswamy, J.

Though every person has social or statutory duty to assist the police, exceptions have been engrafted and it is a constitutional mandate under Articles 20(3) and 21 as a fundamental right against self-incrimination. Article 3 of Declaration of Human Rights assures that everyone has right to life, liberty and security of person. The constitutional and human rights commitment, therefore, is that no one shall be constrained to commit himself out of his own mouth. In other words, the procedural checks are the valued means to prevent excess and civilises the actions of the executive. Articles 20(3) and 21 accord, therefore, to every person privilege against self-incrimination as part of right to life which reflects many of fundamental values, the notable ones being unwillingness to subject those suspected of crime to the cruel or inhuman treatment of self-accusation, and abuse of person. It is a protection to the innocent or may be a shelter or shield to the guilty but so far as the constitutional protection is available, its deprivation is permissible only in accordance with law consistent with the mandate of Articles 20 to 22 of the Constitution.

(Para 376)

Article 20 is not confined to individual or common law offences. It extends to statutory offences. Offences under the Act are statutory offences. As soon as a formal accusation constituting an offence under the Act has been made before SHO or in a private complaint the person is entitled to the protection under Articles 20(3) and 21. Their violation, except in accordance with valid procedure established by law, are in violation of human right to life assured by Article 21 of the Constitution. Liberty of every citizen is an invaluable and precious right. Burden is on the State to establish that its deprivation is constitutionally valid. Procedural law as well as substantive law must pass the tests prescribed by Article 14. Article 21 is not intended to be a limitation upon the powers of the legislature which it otherwise has under the Constitution. Yet the substantive as well as the procedural law made, modified or amended must be just, fair and reasonable. The purity of the procedure to discover truth shall always remain fair, sensitive to the needs of the society and fairly and justly protect the accused. The procedural safeguards are indispensible essence of liberty. The history of personal liberty is largely the history of procedural safeguards. The procedure contemplated by Article 21 of the Constitution means just and fair procedure and reasonable law but not formal or fanciful. No person shall be deprived of his life or personal liberty except in accordance with the procedure established by law mandated by Article 21, would mean that a person shall not be subjected to coercion which does not admit of legal justification. Procedure envisaged in Article 20(3) is the manner, means and the form in which the right is enforced, or the person is subjected to. Though the Constitution does not guarantee any particular procedure and the legislature is left free to lay down the procedure, Articles 14 and 21 prescribe inbuilt limitation in prescribing the procedure, i.e, there must be fundamental fairness in the procedure prescribed by law and should not be unconscionable or oppressive.

(Para 394)

State of W.B v. Anwar Ali Sarkar, 1952 SCR 284 : AIR 1952 SC 75 : 1952 Cri LJ 510, relied on

Per Sahai, J.

Making a provision which has the effect of forcing a person to admit his guilt amounts to denial of the liberty. A law which entitles a police officer to record confession and makes it admissible is violative of both Articles 20(3) and 21.

(Para 456)

Procedure established by law, extends both to the substantive and procedural law.

(Para 448)

AJ. Constitution of India — Art. 21 — Procedure established by law — Must be right, just and fair and must be in conformity with principles of natural justice

Per majority

The procedure contemplated by Article 21 is that the procedure must be “right, just and fair” and not arbitrary, fanciful or oppressive. In order that the procedure is right, just and fair, it should conform to the principle of natural justice, that is, “fair play in action”.

(Para 216)

AK. Constitution of India — Art. 21 — Nature, scope and importance of right guaranteed under — It is in the nature of basic human right — Words ‘life’, ‘liberty’, ‘deprive’ — Meaning of — Art. 21 to be strictly construed against the State and in favour of the person whose right in affected — Words and phrases

Per Sahai, J.

Any law of punitive or preventive detention has to be tested on the touchstone of the constitutional assurance to every person that he shall not be deprived of his liberty except in accordance with procedure established by law. It is declaration of deep faith and belief in human rights. In the “pattern of guarantee woven in Chapter III of the Constitution, personal liberty of a man is at the root of Article 21”. Each expression used in this article enhances human dignity and value. It lays foundation for a society where rule of law has primacy and not arbitrary or capricious exercise of power. ‘Life’ dictionarily means, “state of functional activity and continual change peculiar to organised matter, and especially to the portion of it constituting an animal or plant before death; animate existence; being alive”. But used in the Constitution it may not be mere existence. Liberty is the most cherished possession of a man. “Truncate liberty in Article 21 and several other freedoms fade out automatically”. Liberty is the right of doing an act which the law permits. This article instead of conferring the right, purposely uses negative expression. Obviously because the Constitution has recognised the existence of the right in every man. It was not to be guaranteed or created. One inherits it by birth. This absolutism has not been curtailed or eroded. Restriction has been placed on exercise of power by the State by using the negative. It is State which is restrained from interfering with freedom of life and liberty except in accordance with the procedure established by law. Use of the word ‘deprive’ is of great significance. According to the dictionary it means, “debar from enjoyment; prevent (child etc.) from having normal home life”. Since deprivation of right of any person by the State is prohibited except in accordance with procedure established by law, it is to be construed strictly against the State and in favour of the person whose rights are affected. Article 21 is a constitutional command to State to preserve the basic human rights of every person. Existence of right and its preservation has, thus, to be construed liberally and expansively. As a corollary to it the exercise of power by the State has to be construed narrowly and restrictively. It should be so understood and interpreted as not to nullify the basic purpose of the guarantee. No legislative or executive action can be permitted to get through unless it passes through the judicial scanning of it being not violative of the cherished right preserved constitutionally. The procedure adopted by State either legislatively or executively must therefore satisfy the basic and fundamental requirement of being fair and just. The word ‘except’ restricts the right of the State by directing it not to fiddle with this guarantee, unless it enacts a law which must withstand the test of Article 13. Procedure established by law, extends both to the substantive and procedural law. Further mere law is not sufficient. It must be fair and just law. Even in absence of any provision as in American Constitution fair trial has been rendered the basic and primary test through which a legislative and executive action must pass.

(Paras 447 and 448)

Munn v. Illinois, 94 US 113 (1877); Kharak Singh v. State of U.P, (1964) 1 SCR 332 : AIR 1963 SC 1295 : (1963) 2 Cri LJ 329; Sunil Batra v. Delhi Administration (I), (1978) 4 SCC 494 : 1979 SCC (Cri) 155 : (1979) 1 SCR 392; Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608 : 1981 SCC (Cri) 212 : (1981) 2 SCR 516; Additional District Magistrate, Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521 : AIR 1976 SC 1207, relied on

AL. Constitution of India — Art. 21 — ‘Life and personal liberty’ — Liberty — Concept, object and scope of — Liberty combined with equality and fraternity constitute the trinity and essential element of democracy — Control or restriction on liberty in social interest essential but it should not be overbearing — Individual liberty must be subordinated to common happiness (happiness of greatest number) — Yet so long as ubi jus ebi remedium is available, the procedure prescribed and action taken thereon by law enforcement authority must meet the test of constitutional requirements — Courts as sentinel qui vive must strike a balance (Per K. Ramaswamy, J.)

(Paras 373 to 375 and 381)

AM. Constitution of India — Art. 21 — Right to speedy trial — Forms part of Art. 21 and ensures a reasonable, just and fair procedure — Right operates with the commencement of arrest and incarceration and continues at all stages of investigation, enquiry, trial, appeal and revision — Whether trial delayed — To be determined in facts and circumstances of the case — Factors to be considered — Criminal Procedure Code, 1973, S. 309

Per majority

Speedy trial is one of the facets of the fundamental right to life and liberty enshrined in Article 21 and the law must ensure ‘reasonable, just and fair’ procedure which has a creative connotation. The constitutional guarantee of speedy trial is properly reflected in Section 309 of the Code of Criminal Procedure.

(Paras 88 and 86)

Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : (1978) 2 SCR 621, followed

Hussainara Khatoon (I) v. Home Secretary, State of Bihar, (1980) 1 SCC 81 : 1980 SCC (Cri) 23 : (1979) 3 SCR 169(I)(I); Sunil Batra v. Delhi Administration (I), (1978) 4 SCC 494 : 1979 SCC (Cri) 155 : (1979) 1 SCR 392; Hussainara Khatoon (IV) v. Home Secretary, State of Bihar, Patna, (1980) 1 SCC 98 : 1980 SCC (Cri) 40 : (1979) 3 SCR 532 (IV); Hussainara Khatoon (VI) v. Home Secretary, State of Bihar, Govt. of Bihar, Patna, (1980) 1 SCC 115 : 1980 SCC (Cri) 57 : (1979) 3 SCR 1276 (VI); Kadra Pahadia v. State of Bihar (II), (1983) 2 SCC 104 : 1983 SCC (Cri) 361; T.V Vatheeswaran v. State of T.N, (1983) 2 SCC 68 : 1983 SCC (Cri) 342 : (1983) 2 SCR 348; Abdul Rehman Antulay v. R.S Nayak, (1992) 1 SCC 225 : 1992 SCC (Cri) 93; Beavers v. Haubert, 198 US 77 : 49 L Ed 950 (1905); Strunk v. United States, 412 US 434 : 37 L Ed 2d 57 (1973); United States v. MacDonald, 435 US 850 : 56 L Ed 2d 18 (1977), relied on

The right to a speedy trial is not only an important safeguard to prevent undue and oppressive incarceration, to minimise anxiety and concern accompanying the accusation and to limit the possibility of impairing the ability of an accused to defend himself but also there is a societal interest in providing a speedy trial. The right to speedy trial begins with the actual restraint imposed by arrest and consequent incarceration and continues at all stages, namely, the stage of investigation, inquiry, trial, appeal and revision so that any possible prejudice that may result from impermissible and avoidable delay from the time of the commission of the offence till it consummates into a finality, can be averted.

(Paras 85 and 86)

Black's Law Dictionary, 6th Edn., p. 1400, relied on

The court has to adopt a balancing approach by taking note of the possible prejudices and disadvantages to be suffered by the accused by avoidable delay and to determine whether the accused in a criminal proceeding has been deprived of his right of having speedy trial with unreasonable delay which could be identified by the factors — (1) length of delay, (2) the justification for the delay, (3) the accused's assertion of his right to speedy trial, and (4) prejudice caused to the accused by such delay. However, the fact of delay is dependent on the circumstances of each case because reasons for delay will vary, such as delay in investigation on account of the widespread ramification of crimes and its designed network either nationally or internationally, the deliberate absence of witness or witnesses, crowded dockets on the file of the court etc.

(Para 92)

AN. Constitution of India — Arts. 21 and 14 — Fair trial — Procedure established by law — Procedure must be in consonance with fundamental principles of fair justice — If procedure offends the fundamental fairness or established ethos or traditions or shocks the conscience of the court, it is unconstitutional — Administrative Law — Natural justice — Fairness

Per K. Ramaswamy, J.

The procedure envisaged in Article 21 means the manner and method of discovering the truth. Fair criminal trial is the fundamental right under Article 21. Though the State is free to regulate the procedure for investigation of a crime, to collect evidence and place the offender for trial in accordance with its own perceptions of policy, yet in its so doing if it offends some fundamental principles of fair justice rooted in the traditions and conscience of our people, it would be classified or characterised or ranked as unjust and unfair procedure. Appearance of injustice is denial of justice. Built in procedural safeguards assure a feeling of fairness. When the procedure prescribed by the statute offends the principle of fair justice or established judicial ethos or traditions or shocks the conscience, it could be said that it is fundamentally unfair and violative of the fundamental fairness which are essential to the very concept of justice and civilised procedure. Whether such fundamental fairness has been denied is to be determined by an appraisal of the totality of facts, gathered from the setting, the contents and the procedure which feed the end result. The procedure which smacks of the denial of fundamental fairness and shocks the conscience or universal sense of justice is an anathema to just, fair or reasonable procedure. Articles 14 and 21 frown against arbitrary and oppressive procedure.

(Paras 399 and 398)

AO. Constitution of India — Art. 21, 20(3) and 32 — Human rights — Police atrocities — Third degree method adopted by police to extort confession — Violates human rights — Exemplary compensation can be awarded to the victim in appropriate cases — Evidence Act, 1872, S. 24 — Penal Code, 1860, Ss. 330, 331

Per majority

In cases of police brutality and atrocities, committed, in utter disregard and in all breaches of humanitarian law and universal human rights as well as in total negation of the constitutional guarantees and human decency, the Supreme Court is committed to uphold human rights even as a part of long standing heritage and as enshrined in our constitutional law. This perspective needs to be kept in view by every law enforcing authority because the recognition of the inherent dignity and of the equal and inalienable rights of the citizens is the foundation of freedom, justice and peace in the world. If the human rights are outraged, then the court should set its face against such violation of human rights by exercising its majestic judicial authority.

(Para 365)

The Constitution as well as the statutory procedural law and law of Evidence condemn the conduct of any official in extorting a confession or information under compulsion by using any third degree methods. If it is shown to the court that a confession has been extorted by illegal means such as inducement, threat or promise as contemplated under Section 24 of the Evidence Act the confession thus obtained from an accused person would become irrelevant and cannot be used in a criminal proceeding as against the maker. Sections 330 and 331 of the Indian Penal Code provide punishment to one who voluntarily causes hurt or grievous hurt as the case may be to extort the confession or any information which may lead to the detection of an offence or misconduct.

(Paras 249 and 248)

The oppressive behaviour and the most degrading and despicable practice adopted by some of the police officers is much depressing, though no general and sweeping condemnation can be made. Courts have frequently dealt with cases of atrocity and brutality practised by some overzealous police officers resorting to inhuman, barbaric, archaic and drastic method of treating the suspects in their anxiety to collect evidence by hook or by crook and wrenching a decision in their favour. We remorsefully like to state that on few occasions even custodial deaths caused during interrogation are brought to our notice. The Supreme Court on several occasions has awarded exemplary compensation to the victims at the hands of the police officials which can be testified by a series of pronouncements of the Supreme Court.

(Paras 251 and 247)

Per K. Ramaswamy, J.

The expression “life or personal liberty” in Article 21 of the Constitution includes right to live with human dignity which would include guarantee against torture and assault by the State. Article 21 guarantees protection against torture and assault by the State while a person is in custody. It is a legitimate right of the police to arrest a suspect on receiving some credible information or material, but the arrest must be in accordance with law and the interrogation should not be accompanied with torture or use of third degree methods. The interrogation and investigation should be in true sense purposeful to make the investigation effective. Torture or beating of arrested person in the lock-up is generally carried on behind the closed doors and no member of the public is permitted to be there and instances are not wanting that even the family members of the arrested persons are not allowed to meet the suspect.

(Para 397)

Sunil Batra v. Delhi Administration (I), (1978) 4 SCC 494 : 1979 SCC (Cri) 155 : (1979) 1 SCR 392; Sunil Batra (II) v. Delhi Administration, (1980) 3 SCC 488 : 1980 SCC (Cri) 777 : (1980) 2 SCR 557; Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96 : 1983 SCC (Cri) 353 : AIR 1983 SC 378, relied on

Custodial interrogation exposes the suspect to the risk of abuse of his person or dignity as well as distortion or manipulation of his self-incrimination in the crime. No one should be subjected to physical violence of the person as well as to torture. Infringement thereof undermines the peoples' faith in the efficacy of criminal justice system. Interrogation in police lock-up are often done under conditions of pressure and tension and the suspect could be exposed to great strain even if he is innocent, while the culprit in custody to hide or suppress may be doubly susceptible to confusion and manipulation. A delicate balance has, therefore, to be maintained to protect the innocent from conviction and the need of the society to see the offender punished. Equally everyone has right against self-incrimination and a right to be silent under Article 20(3) which implies his freedom from police or anybody else. But when the police interrogates a suspect, they abuse their authority having unbridled opportunity to exploit his moral position and authority inducing the captive to confess against his better judgment. Silence on the part of the frightened captive seems to his ears to call for vengeance and induces a belief that confession holds out a chance to avoid torture or to get bail or a promise of lesser punishment. The resourceful investigator adopts all successful tactics to elicit confession.

(Para 377)

AP. Constitution of India — Art. 20(3) — Testimonial compulsion — Guarantee against, extends not only to oral testimony in court or outside court but also to written statement incriminating the maker of the statement

Per K. Ramaswamy, J.

Every positive act which furnishes evidence is testimony and testimonial compulsion connotes coercion which procures positive oral evidence. The acts of the person, of course, is neither negative attitude of silence or submission on his part, nor is there any reason to think that the protection in respect of the evidence procured is confined to what transpires at the trial in the court room. The phrase used in Article 20(3) is to be a witness and not to appear as a witness. It follows that the protection accorded to an accused insofar as it is related to the phrase “to be a witness” is not merely in respect of the testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him. The guarantee, therefore, includes not only oral testimony given in a court or out of court, but also statements in writing which incriminated the maker when figuring as accused person. Compelled testimony must be read as evidence procured not merely by physical threat or violence but by psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidatory methods and the like — not legal penalty for violation.

(Para 396)

Nandini Satpathy v. P.L Dani, (1978) 2 SCC 424 : 1978 SCC (Cri) 236; State of Bombay v. Kathi Kalu Oghad, (1962) 3 SCR 10 : AIR 1961 SC 180 : (1961) 2 Cri LJ 856, relied on

AQ. Evidence Act, 1872 — Ss. 24 to 30 — Confession — Meaning of — Confessional statement obtained by police inadmissible in evidence — Custodial interrogation involves risk of abuse of person or dignity of the suspect as well as distortion or manipulation of his self-incrimination

Per K. Ramaswamy, J.

Confession means an admission of certain facts which constitute an offence or substantially all the facts that constitute the offence, made by a person charged with the offence which is the subject-matter of the statement.

(Para 383)

Palvinder Kaur v. State of Punjab, 1953 SCR 94 : AIR 1952 SC 354 : 1953 Cri LJ 154; Pakala Narayana Swami v. King-Emperor, 66 IA 66 : AIR 1939 PC 47 : 40 Cri LJ 364; Tahsildar Singh v. State of U.P, AIR 1959 SC 1012 : 1959 Supp 2 SCR 875 : 1959 Cri LJ 1231, relied on

The fascicule of Sections 24 to 30 aim to zealously protect the accused against becoming the victim of his own delusion or the mechanisation of others to self-incriminate in crime. The confession, therefore, is not received with an assurance, if its source be not omni suspicious mojes, above and free from the remotest taint of suspicion. The mind of the accused before he makes a confession must be in a state of perfect equanimity and must not have been operated upon by fear or hope or inducement. Hence threat or promise or inducement held out to an accused makes the confession irrelevant and excludes it from consideration. A confession made to a police officer while the accused is in the custody or made before he became an accused, is not provable against him on any proceeding in which he is charged to the commission of the said offence. Equally a confession made by him, while in the custody of the police officer, to any person is also not provable in a proceeding in which he is charged with the commission of the offence unless it is made in the immediate presence of the Magistrate. Police officer is inherently suspect of employing coercion to obtain confession. Therefore, the confession made to a police officer under Section 25 should totally be excluded from evidence. The reasons seem to be that the custody of police officer provides easy opportunities of coercion for extorting confession. Section 25 rests upon the principle that it is dangerous to depend upon a confession made to a police officer which cannot extricate itself from the suspicion that it might have been produced by the exercise of coercion or by enticement. The legislative policy and practical reality emphasise that a statement obtained, while the accused is in police custody, truly be not the product of his free choice.

(Para 383)

AR. Evidence Act, 1872 — S. 24 — Conviction can be founded on voluntary confession or even on retracted confession if it receives general corroboration (Per K. Ramaswamy, J.)

(Para 392)

State of Maharashtra v. Sukhdev Singh, (1992) 3 SCC 700 : 1992 SCC (Cri) 705 : JT (1992) 4 SC 73, relied on

AS. Criminal Procedure Code, 1973 — S. 164 — Recording of confession by Magistrate — Nature and object of the provision — Provision mandatory — Procedure — Precautions to be taken (Per K. Ramaswamy, J.)

(Paras 386, 388, 389)

Nazir Ahmad v. King-Emperor, AIR 1936 PC 253 : 37 Cri LJ 897; Ram Chandra v. State of U.P, AIR 1957 SC 381 : 1957 Cri LJ 559; Sarwan Singh v. State of Punjab, AIR 1957 SC 637 : 1957 SCR 953 : 1957 Cri LJ 1014, relied on

Tahsildar Singh v. State of U.P, AIR 1959 SC 1012 : 1959 Supp 2 SCR 875 : 1959 Cri LJ 1231, referred to

AT. Constitution of India — Art. 50, 32, 136, 226, 233 to 237 — Separation of powers — Independent judiciary — It is the basic postulate of the Constitution — Subordinate judiciary is complement to the constitutional courts as part of the constitutional scheme

Per K. Ramaswamy

It is the basic postulate under the Indian Constitution that the legal sovereign power has been distributed between the legislatures to make the law, the executive to implement the law and the judiciary to interpret the law within the limits set down by the Constitution. The courts are intermediary between the people and the other organs of the State in order to keep the latter within the parameters delineated by the Constitution. There can be no liberty if the power of judging be not separated from the legislative and executive powers. Article 50 of the Constitution, therefore, enjoins the State and in fact separated the judiciary from the executive in the public services of the State.

(Para 411)

Independent judiciary is the most essential attribute of rule of law and is indispensible to sustain democracy. Independence and integrity of the judiciary in a democratic system of Government is of the highest importance and interest not only to the judges but to the people at large who seek judicial redress against perceived legal injury or executive excesses. Dispensation of justice by an impartial presiding judge, without fear or favour, affection or ill-will, is the cardinal creed and is zealously protected by the Constitution. Judicial review is the basic structure and independent judiciary is the cardinal feature and an assurance of faith enshrined in the Constitution. Confidence of the people in impartial dispensation of justice is the binding force for acceptance of justice delivery system. Independence is not limited to insulating the judges from executive pressures alone. Its sphere extends to many other impeccable zones of pressures or prejudices. Judges should be made of stern stuff unbending before the power, economic or political which alone would ensure fair and effective administration of justice. The officer exercising judicial power vested in him must be, of necessity, free to act upon his own conscience and without apprehension of personal consequences to himself or lure of retiral rehabilitation. The judges should be made independent of most of their restraints, checks and punishments which are usually called into play against other public officers and he should be devoted to the conscientious performance of his duties. Therefore, he must be free from external as well as internal pressures. The need for independent and impartial judiciary manned by persons of sterling character, impeccable integrity, undaunting courage and determination, impartiality and independence is the command of the Constitution and call of the people.

(Para 412)

The subordinate judiciary is complement to constitutional courts as part of the constitutional scheme and plays vital part in dispensation of justice. Subordinate courts are integral part of the judiciary under the Constitution.

(Para 413)

AU. Constitution of India — Arts. 133, 134, 136 & 226 and 227 — Judicial review — Object — Merits of the decision as well as decision making process of subordinate courts subject to review by Superior Courts — Subordinate judiciary do exercise power of judicial review of administrative acts — Administrative Law — Judicial review

Per K. Ramaswamy, J.

Judicial review is not only concerned with the merits of the decision but also of the decision-making process. It intends to protect the individual against the misuse or abuse of the power by a wide range of authorities. Judicial review is a protection to the individual and not a weapon. It, therefore, concerns with the manner in which the authority makes the decision. The court of appeal though substitutes its own decision to that of the subordinate courts or the tribunal etc. on merits, it is to ensure that the individual is given a fair treatment. Judicial review ensures that the authority acts fairly and the order is not vitiated by illegality, unreasonableness, irrationality or procedural impropriety. The civil rights and criminal justice are integral parts of judicial process. Procedure is the handmaid to substantive justice. Law, therefore, has to be vigilant to ensure adequate safeguards for those whose rights are affected or to exercise their rights or acts. Equally the exercise of the executive power of the Government should be put under control. Judicial review, therefore, is the process by which the constitutional courts i.e the Supreme Court and the High Courts exercise supervisory jurisdiction over the proceedings and decisions of the subordinate courts etc., tribunals or authority or persons entrusted with administrative or quasi-judicial acts or duties. Subordinate courts also exercise, in a small measure judicial review of administrative acts.

(Para 413)

AV. Constitution of India — Art. 139-A — Transfer of case — Supreme Court issues notice and hear the parties before passing any order except where suo motu order is issued — Criminal Procedure Code, 1973, Ss. 406 and 407 — Civil Procedure Code, 1908, Ss. 24 and 25

Per majority

The new Section 25 of the Civil Procedure Code substituted by an Amendment Act, 104 of 1976 provides for the transfer to the Supreme Court the existing power hitherto vested with the State Government and to confer on the Supreme Court such wide powers of transfer as it has in criminal cases under Section 406 of the Code. Section 25, in fact, is wider in scope than Section 406 of the Code of Criminal Procedure, 1973. Though, there is no express provision in Article 139-A of the Constitution and in Section 406 of the Code of Criminal Procedure to the effect that the Supreme Court before passing any order on the application made or moved for transfer of cases should issue notice and hear the parties as required under Sections 24 and 25 of the Code of Civil Procedure, on the principle of ‘audi alteram partem’, notice is given to the party/parties who are likely to be affected by any final order. But the question of issuing a notice and hearing the parties may not arise if the order is passed by the Supreme Court suo motu.

(Para 184)

AW. Constitution of India — Arts. 245, 246, 254 and Sch. VII — Legislative competence — Pith and substance rule explained — Incidental encroachment not forbidden

Per majority

The doctrine of ‘pith and substance’ is applied when the legislative competence of a legislature with regard to a particular enactment is challenged with reference to the entries in the various lists i.e a law dealing with the subject in one list is also touching on a subject in another list. In such a case, what has to be ascertained is the pith and substance of the enactment. On a scrutiny of the Act in question, if it is found, that the legislation is in substance one on a matter assigned to the legislature enacting that statute, then that Act as a whole must be held to be valid notwithstanding any incidental trenching upon matters beyond its competence i.e on a matter included in the list belonging to the other legislature. To say differently, incidental encroachment is not altogether forbidden.

(Paras 58 and 60)

Prafulla Kumar Mukherjee v. Bank of Commerce Ltd., AIR 1947 PC 60 : 74 IA 23 : 51 CWN 599; Subrahmanyan Chettiar v. Muttuswami Goundan, 1940 FCR 188 : AIR 1941 FC 47; The Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act No. XIV of 1938, in re, AIR 1939 FC 1 : (1939) 1 MLJ Supp 1; Governor-General in Council v. Province of Madras, AIR 1945 PC 98 : 72 IA 91 : 1945 FCR 179; State of J&K v. M.S Farooqi, (1972) 1 SCC 872 : (1972) 3 SCR 881; Union of India v. H.S Dhillon, (1971) 2 SCC 779 : (1972) 2 SCR 33, relied on

AX. Constitution of India — Art. 248 & Sch. VII List I Entry 97 — Residuary power of Parliament — If Act enacted by Parliament is not covered by List II, then Parliament competent to enact the same under Art. 248 r/w Entry 97 of List I and if would not be necessary to consider whether it falls under any specific entry in List II or List III

Per majority

While examining the question of legislative competence of Parliament to make a law, the proper approach is to determine whether the subject-matter of the legislation falls in the State List which Parliament cannot enter. If the law does not fall in the State List, Parliament would have the legislative competence to pass the law by virtue of the residuary powers under Article 248 read with Entry 97 of the Union List and it would not be necessary to go into the question whether it falls under any entry in the Union List or Concurrent List.

(Paras 59 and 58)

Union of India v. H.S Dhillon, (1971) 2 SCC 779 : (1972) 2 SCR 33; S.P Mittal v. Union of India, (1983) 1 SCC 51 : (1983) 1 SCR 729; Khandelwal Metal and Engg. Works v. Union of India, (1985) 3 SCC 620 : 1985 SCC (Tax) 466 : 1985 Supp 1 SCR 750, relied on

AY. Constitution of India — Sch. VII — Legislative entries — How to be construed

Per majority

The entries must not be construed in a narrow and pedantic sense and widest amplitude must be given to the language of these entries. Sometimes the entries in different lists or the same list may be found to overlap or to be in direct conflict with each other. In that event it is the duty of the court to find out its true intent and purpose and to examine the particular legislation in its ‘pith and substance’ to determine whether it fits in one or other of the lists.

(Para 59)

Synthetics and Chemicals Ltd. v. State of U.P, (1990) 1 SCC 109 : 1989 Supp 1 SCR 623; India Cement Ltd. v. State of T.N, (1990) 1 SCC 12 : 1989 Supp 1 SCR 692, relied on

AZ. Interpretation of Statutes — Basic rules — Literal construction — Departure from rule of, when permissible — Functional approach

Per majority

Though normally the plain ordinary grammatical meaning of an enactment affords the best guide and the object of interpreting a statute is to ascertain the intention of the legislature enacting it, other methods of extracting the meaning can be resorted to if the language is contradictory, ambiguous or leads really to absurd results so as to keep at the real sense and meaning.

(Para 113)

South Asia Industries (P) Ltd. v. S. Sarup Singh, AIR 1966 SC 346 : (1966) 3 SCR 829 : (1966) 68 Pun LR 108(D); G. Narayanaswami v. G. Panneerselvam, (1972) 3 SCC 717 : AIR 1972 SC 2284; Directorate of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440 : JT (1994) 1 SC 290, relied on

Salmond: Jurisprudence, relied on

BA. Jurisprudence — Law — Purpose of — To regulate life of man in society

Per majority

The life of man in a society would be a continuing disaster if not regulated. The principal means for such regulation is the law which serves as the measure of a society's balance of order and compassion and instrument of social welfare rooted in human rights, liberty and dignity.

(Para 39)

The achievements of law in the past are considerable, its protection in the present is imperative and its potential for the future is immense. It is very unfortunate that on account of lack of respect, lack of understanding, lack of effectiveness, lack of vision and lack of proper application in the present day affairs, law sometimes falls in crisis.

(Para 36)

C.G Weeramantry in The Law in Crisis — Bridges of Understanding, relied on

BB. Criminal Law — Crime when constituted — Mens rea and actus reus must concur

Per majority

Generally, it is one of essential principles of criminal jurisprudence that a crime is not committed if the mind of a person doing the act in question, is innocent. Therefore, to constitute a crime, the intent and act must both concur.

(Para 123)

BC. Words and phrases — “Judicial power” — Meaning of

Per K. Ramaswamy

Judicial power means the judicial power which every authority i.e courts i.e High Court and subordinate judiciary, established under Chapters V and VI of Part VI and the Union Judiciary constituted in Chapter IV in Part V, ‘the Supreme Court of India’ must of necessity have to decide controversies between citizen and the citizen, citizen and the State or the States inter se, whether the rights relate to life, liberty or property. The courts have power and authority to declare the law, apply the law and give a binding and authoritative decision between the parties before it and carry it into effect.

(Paras 414 and 411)

Black's Law Dictionary, 6th Edn., p. 849, relied on

BD. Words and phrases — “Legislative power” — Meaning of

Per Sahai, J.

Power to frame or enact law for the governance of the country by the supreme body exercising the sovereign power is known as legislative power.

(Para 442)

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