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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.498 of 2012 SEENI NAINAR MOHAMMED              ...APPELLANT(S)

:VERSUS:

STATE REP. BY DEPUTY SUPERINTENDENT  OF POLICE                ...RESPONDENT(S)

With CRIMINAL APPEAL NO.867 of 2012

SHAHUL HAMEED & ORS.              ...APPELLANT(S)

:VERSUS:

STATE REP. BY DEPUTY SUPERINTENDENT  OF POLICE          ...RESPONDENT(S)

J U D G M E N T

Pinaki Chandra Ghose, J.

1. These  two  appeals  are  directed  against  the  judgment  and

order dated 8th September, 2011 passed by the Court of Designated

Judge  for  TADA  Cases,  Tirunelveli,  in  TADA  Case  No.1/1997,

whereby the learned Designated Judge found the appellants herein

guilty  for  offences  punishable  under  Section  120(B)  read  with

Sections  302,  147,  148  &  149  of  the  Indian  Penal  Code,  1860

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(hereinafter referred to as “IPC”) and Sections 3(2), 3(3) & 3(4) of

the Terrorist and Disruptive Activities (Prevention) Act, 1987 ( for

short “TADA”) and sentenced them to life imprisonment.  

2. The facts of the case have been elaborately discussed by the

learned Special Judge of the Designated Court for adjudication of

TADA cases. We need not, therefore, recapitulate the entire factual

backdrop  in  which  the  appellants  were  tried,  found  guilty  and

sentenced,  excepting  where  it  is  absolutely  necessary  to  do  so.

There are six accused in this case, namely,  Sahul Hameed (A-1),

Raja Hussain (A-2), Zubeir (A-3), Zakir Hussain (A-4),  Azeez (A-5)

and  Seeni  Nainar  Mohammed  (A-6).  On  10th October,  1994,  at

about  06:30  a.m.,  A-1  to  A-6  in  pursuance  of  the  conspiracy

hatched  amongst  them,  went  to  the  house  of  one  Rajagopalan

(since  deceased),  who  was  President  of  Hindu  Munnani

Association, with a motive to kill him. A day before the incident,

A-6  Seeni  Nainar  Mohammed  had  advised  his  brother  Raja

Hussain (A-2) to meet him after completing the task of murdering

Rajagopalan. When Rajagopalan, after taking the newspapers from

a newspaper sub-agent Saravanam (PW-3), was going through the

newspapers facing East at his house, accused persons came from

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left  hand side of  Rajagopalan and while  A-1 caught hold of  the

neck of Rajagopalan from behind, A-3 and A-4 took out knives and

stabbed  on  his  stomach.  A-5  showing  a  sickle  threatened  the

public to run away and repeatedly attacked the said Rajagopalan

and thereafter they ran away towards west. On hearing the noise,

PW-1 Krishnaveni wife of the deceased came out of the house and

saw that  her  husband  was  lying  down in  a  pool  of  blood.  The

occurrence was witnessed by PW-1, PW-3, PW-4, PW-5 & PW-6.

PW-1 informed about the incident to the Market Police Station on

telephone.  Upon  receiving  the  information,  PW-2  Inspector  of

Market Police Station rushed to the spot and enquired from PW-1

who gave a written complaint to him.  

3. Law was set into motion when PW-2 Stalin Michael, Inspector

registered the FIR Ext.P2 at 07:30 a.m. at Police Station Thilagar

Ground, Madurai District, under Sections 147, 148 and 302 of IPC

in  Crime  No.2490/1994.  On  the  orders  of  DGP,  the  case  was

transferred from local  Police to CBCID and Shri  Rajagopal,  DSP

(PW-24) took up the investigation, went to the place of occurrence,

examined the witnesses and  recorded  their  statements.    Since

PW-24 was holding additional charge, he could not accomplish the

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task of investigation and further investigation was taken up by Shri

Jones,  DSP  (PW-30)  and  after  receiving  prior  approval  from

Superintendent of Police (PW-26), registered the case under TADA.

The records of the case were transferred to the learned Designated

Judge  for  TADA  Cases  and  after  trial,  the  learned  Designated

Judge vide his judgment and order dated 08.09.2011 convicted all

the accused in TADA Case No.1/1997 holding that the prosecution

has proved the first charge as against A-1 to A-6. A-1 to A-5 were

convicted under Section 3(2) read with Section 3(1) of TADA read

with  Section  149  of  IPC  and  sentenced  to  undergo  life

imprisonment and to pay a fine of Rs.10,000/- each, and in default

of payment of fine, to undergo rigorous imprisonment for 1 year.

However, A-6 was convicted under Section 3(2) read with 3(1) of the

TADA read with Section 109 of IPC and under Section 3(4) of TADA

and sentenced to undergo life imprisonment and also to pay a fine

of Rs.5,000/- and in default of payment of fine, to undergo rigorous

imprisonment for 1 year. However, all the sentences were directed

to run concurrently. Hence, the present appeals under Section 19

of TADA read with the Supreme Court (Enlargement of Criminal

Appellate Jurisdiction) Act, 1970.  Criminal Appeal No.498 of 2012

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has been filed by A-6 while Criminal Appeal No.867 of 2012 has

been filed by A-1 to A-5.   

4. We have carefully perused the impugned judgment and the

material  on  record  and  have  also  meticulously  examined  the

testimonies of the witnesses and other relevant evidence produced.

Since the appellate jurisdiction against any judgment passed by

the Designated Court for TADA cases lies with this Court only, we

would consider the peculiar circumstances of the present case to

appropriately discuss every relevant issue in question before us.

5. The  very  first  issue  which  falls  for  our  determination  as

pressed by the learned senior counsel for the accused-appellants

herein is whether the approval in the present case can be said to

be sufficient compliance of the provisions of Section 20-A of TADA

which reads as under:-  “20-A Cognizance of offence.- (1) Notwithstanding anything contained  in  the  Code,  no  information  about  the commission of an offence under this Act shall be recorded by  the  police  without  the  prior  approval  of  the  District Superintendent of Police.  (2)  No court  shall  take cognizance of  any offence under this  Act  without  the  previous  sanction  of  the Inspector-General  of  Police,  or  as  the  case  may be,  the Commissioner of Police.”

6. We  have  considered  the  fact  that  after  the  investigation,

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PW-30 DSP of CBI approached PW-28 IG on 13th September, 1997

seeking sanction for  prosecution against  A-1 to A-5 for  offences

under  TADA  Act.  PW-28  on  16th September,  1997  granted  the

sanction (Ext.P-46) for prosecution against A-1 to A-5 under TADA

Act. It is stated by PW-28, IG that he perused all the records placed

by PW-30, along with requisition, seeking for sanction containing

the  Inquest  Report,  Post-mortem  Report,  164  Statements  of

eye-witnesses and 161 Statements of other witnesses, confession of

A-1  and  other  materials  and  granted  sanction  for  prosecution

against A-1 to A-5 under Section 3 of the TADA Act, 1987. It is also

to be noted that in the course of investigation, the confession of

A-6 (Ext.P-43) dated 25.10.1994 was recorded by PW-26 SP, on the

basis of the requisition given by PW-24 DSP, CBCID. The case was

subsequently  transferred to  CBI  in  July,  1996 and on transfer,

PW-30 CBI, DSP took up the investigation on 17.07.1996.

7. We have also noted that the sanction (Ext.P-46) granted on

16.09.1997 by PW-28 IG, referred to A-1’s confession (Ext.P-41)

only recorded on 3.04.1997 but it does not refer to the confession

of A-6 (Ext.P-43) which was recorded on 25.10.1994. This was the

only document which revealed that A-6 addressed and advised A-1

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to  A-5  to  commit  the  murder  of  Rajagopalan,  with  intention  to

create  terror  in  the  minds  of  public  at  large  in  Tamil  Nadu.

Therefore,  the confession of A-6 (Ext.P-43) is the only document

which refers  to  the  intention to  create  terror  as required under

Section  3  of  TADA  Act.  No  other  material  or  no  other  witness

speaks about the intention of the accused to commit the murder

with intention to create terror in the minds of public which is main

ingredient  for  invoking  the  TADA  Act.  Unfortunately,  the  said

document (Ext.P-41) has neither been referred to nor relied upon

by the Sanctioning Authority in the sanction order (Ext.P-46).

8. We have also noticed that the confession of A-1 (Ext.P-41) is

totally contradictory to the confession of A-6 (Ext.P43). It appears

from  the  facts  that  the  Investigating  Officer  suppressed  the

material document by not placing the same before the Sanctioning

Authority. We have further noticed that the TADA Court convicted

the accused under the TADA Act on the basis of confession of A-6

and not on the basis of any other material. The other point which

we have noted is that the Sanctioning Authority (PW-28) admitted

in  his  deposition  that  he  did  not  know  Tamil  and  did  not  go

through the entire records which were in Tamil.  Therefore,  it  is

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clear that the Sanctioning Authority has not applied his mind to

the  records  in  its  entirety  and  granted  sanction  only  after

considering certain documents which were in English. Therefore,

we  have  to  accept  the  contention  of  the  appellants  that  the

Sanctioning  Authority  without  perusing  the  relevant  documents

issued the order of sanction and thereby it has to be accepted that

the sanction was granted mechanically.  

9. The confessions of A-1 and A-6 are not voluntary as has been

evidenced by us from the materials since those confessions were

not recorded in a free atmosphere thereby it violated the directions

given by this  Court.  Further,  the said confessions could not  be

relied upon as they contradicted with each other.

10. We, without hesitation, are of this considered opinion that the

answer to this question is in the negative for settled principle of

non-application of  mind by  sanctioning  authority  while  granting

approval for taking cognizance under TADA Act and undermining

the objective of the Act. This relevant provision was inserted by Act

43 of 1993 which came into force on 23.05.1993 which is prior to

the date of commission of the offence i.e., 10.10.1994 disputed in

instant appeal which makes it crystal clear that Section 20-A(1) of

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TADA must be construed by indicating that prior approval from the

competent authority is mandatory for taking cognizance of offence

punishable under TADA. However, it shall always be borne in mind

by the sanctioning authority  that  application of  such provisions

which forms part of penal statues requires strict interpretation and

failure  to  comply  with  the  mandatory  requirement  of  sanction

before cognizance is taken, as mentioned in TADA, may vitiate the

entire  proceedings  in  the  case.  In  the  recent  past,  it  has  been

observed by this Court in respect of Section 20-A of TADA in the

case of Hussein Ghadially @ M.H.G.A Shaikh & Ors. Vs. State

of Gujarat, (2014) 8 SCC 425, at para 21, as follows:  “A careful reading of the above leaves no manner of doubt that the provision starts with a non obstante clause and is couched in  negative  phraseology.  It  forbids  recording of information about the commission of offences under TADA by  the  Police  without  the  prior  approval  of  the  District Superintendent of Police.”           

11. The  most  important  factor  for  determination  before  the

sanctioning authority was that the acts done by a person must fall

within the ambit of terrorist activity and the accused must be a

terrorist  as  defined  in  Section  3(1).  This  position  of  law  was

discussed by this Court in the case of  Kalpnath Rai Vs. State

(Through CBI), (1997) 8 SCC 732, as follows:

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“34. Sub-section 3(5) was inserted in TADA by Act 43 of 1993 which came into force on 23-5-1993. Under Article 20(1) of the Constitution ‘no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence’. So it is not enough that one was member of a terrorists’ gang before 23-5-1993.

35.  There are two postulates in Sub-section (5).  First  is that  the  accused  should  have  been  a  member  of  ‘a terrorists gang’ or ‘terrorists organisation’ after 23.5.1993. Second is that the said gang or organisation should have involved in terrorist acts subsequent to 23.5.1993. Unless both postulates exist together Section 3(5) cannot be used against any person.

36. ‘Terrorist act’ is defined in Section 2(h) as having the meaning assigned to  it  in Section  3(1).  That  sub-section reads thus:

‘3(1) Whoever with intent to overawe the Government as by law established or to strike terror in people or any sec- tion of the people or to alienate any section of the people or to adversely affect the harmony amongst different sections of the people does any act or thing by using bombs, dyna- mite  or  other  explosive  substances  or  inflammable  sub- stances or fire-arms or other lethal weapons or poisons or noxious  gases  or  other  chemicals  or  by  any  other  sub- stances (whether biological or otherwise) of a hazardous nature in such a manner as to cause, or as is likely to cause, death of, or injuries to, any person or persons or loss of, or damage to, or destruction of, property or disrup- tion of any supplies or services essential to the life of the community, or detains any person and threatens to kill or injure such person in order to compel the Government or

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any other person to do or abstain from doing any act, com- mits a terrorist act.’

37. The requirements of the sub-section are: (1) the person should have done an act in such a manner as to cause, or as is likely to cause death or injuries to any person or damage to any property, or disruption of any supplies; (2) doing of such act should have been by using bombs, dyna- mites etc.; (3) or alternatively he should have detained any person and threatened to kill or injure him in order to com- pel the Government or any other person to do or abstain from doing anything.”  

12. Mr. Karpaga Vinayagam, learned senior counsel appearing for

the appellants submitted that the Prior Approval for investigating

the case under TADA, granted by PW-26 in the present case, is bad

in  law  as  the  same  has  been  granted  by  PW-26  mechanically,

without  going  through  the  records  and  without  recording  his

satisfaction.  A careful perusal of the requisition given by PW-24 to

PW-26 for seeking prior approval (Ext.P-35) reveals that a single

murder on 10.10.1994 was mentioned therein but no act of murder

with intent to create terror and panic in the minds of public, which

is  the  main  ingredient  of  the  offence  under  TADA  Act,  was

mentioned. The incident prior to this murder relating to objections

raised by Hindus on the construction of mosque near Hindu temple

in Madurai was mentioned in the deposition of PW-24, which could

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nowhere be referred or connected to act of murder. Admittedly, as

per his deposition, till 19.10.1994, none gave any complaint that

there was any commotion or violence at the place of occurrence,

resultantly connecting the case under IPC to be a prima facie case

under TADA leading to seeking prior approval,  which if  granted,

would be bad in the eyes of law.

13. We have also noticed that the Sanctioning Authority under

Section 20-A(2) of TADA, i.e. PW28 - IG, CBI in present case, had

granted permission to file a case under TADA on 16.09.1997 vide

permission  order  being  Ext.P.46  and  in  his  deposition  PW-28

stated  that  “…  I  verified  the  TADA  Rules  very  carefully.  Upon

perusing the said documents as I was satisfied that there are ample

evidences to file a case against A1 to A5, namely Shahul Hameed,

Raja  Hussain,  Subair,  Zahir  Hussain  and  Aziz  alias  Abdul  Aziz

under the TADA Act, I  issued orders granting permission to file a

case under section 3 of  the TADA Act…”.  We may straightaway

observe  that  the  sanctioning  authority  did  not  have  necessary

material before him to show that the alleged act of causing death of

the deceased was done with intent to create terror in the minds of

public at large.  Had there been any such terror in the minds of

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people, then as an aftermath of the death of the deceased there

would  have  been  an  adverse  effect  on  the  harmony  amongst

different sections of people in the vicinity of the place of incident.

However, no such incident of striking terror in the minds of people

or adverse effect on the harmony amongst any section of society

was reported. The alleged act of causing death of an individual was

only  an  attack  by  the  accused-appellants  with  weapons  on  the

deceased who later succumbed to the injuries.     14. We have noticed that sanction under Section 20-A(2) of TADA

in respect of A-6 was granted by PW-29 on 16.09.1998, which was

delayed due to time consumed in the investigation against him. In

our considered opinion, the same is also unlawful for the reasons

mentioned above. Furthermore, cross examination of PW-30 is also

reflecting  the  non-application  of  mind  when  after  specifically

stating about  relationship of  the accused-appellants herein with

Alumma organization, it was deposed by him that he did not collect

any evidence or document to show that accused belonged to that

organization.  In our considered opinion, the said sanctions, which

have not been proved by the depositions of these witnesses, are not

as per the mandate of law laid down by this Court in the case of

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State of Maharashtra Vs. Mahesh G. Jain, (2013) 8 SCC 119,

and Kootha Perumal Vs. State, (2011) 1 SCC 491.

15. After going through the records, it appears to us that the ac-

cused-appellants had grudge in their minds because the deceased

used to organize Vinayaga Chaturthi Celebrations in various places

and criticize Muslims and Islam which includes a public notice by

the deceased wherein he had demanded protection of Madurai City

which, according to the deceased, was being used by Pakistan as

the base for spying activity. The issuance of this public notice was

proved by PW-11, A.R. Kalidasan. Instances of  pelting stones by

the appellants herein were proved by the evidence of  PW-10, as

corroborated  by  the  deposition  of  PW-13.   

16. Mr. P. K. Dey, learned counsel for respondent-CBI has drawn

our attention to the decision of this Court in  Kartar Singh Vs

State of Punjab,  1994 (3)  SCC 569, wherein at  para 451,  this

Court observed:  

“Mere possession of arms and ammunition specified in the section has been made substantive offence. It is much se- rious in nature and graver in impact as it results in prose- cution of a man irrespective of his association or connec- tion with a terrorist or terrorist activity. A comparison of

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this section with Sections 3 and 4 demonstrates the arbi- trariness inherent in it. Section 3 operates when a person not only intends to overawe the Government or create ter- ror in people etc. but he uses the arms and ammunitions which  results  in  death  or  is  likely  to  cause  death  and damage to property etc.  In other words, a person be- comes  a  terrorist  or  is  guilty  of  terrorist  activity when  intention,  action  and  consequence  all  the three ingredients are found to exist. Similarly Section 4 applies to those activities which are directed towards disrupting sovereignty and territorial integrity of the coun- try. Thus a terrorist or a disruptionist and a person pos- sessing 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.  Even under sub-section (3) of Section 3 a person is liable to be prose- cuted for  abetting the  offence if  he  assists  or  communi- cates with a terrorist. Sub-sections (5) and (6) inserted by Act 43 of 1993 to Section 3 also require that a person can be prosecuted only if he is found to be a member of a ter- rorist gang or terrorist organisation etc. 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, as has been discussed earlier, 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 provi- sions  is  apparent  as  all  those provisions  of  the  Act  for prosecuting a person including forfeiture of property, de-

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nial of bail etc., are applicable to a person accused of pos- sessing any arms and ammunition as one who is charged for an offence under Sections 3 and 4 of the Act. It is no doubt true that no one has justification to have such arms and ammunitions as are mentioned in Section 5, but un- justifiable possession does not make a person a terrorist or disruptionist. Even under Ireland Emergency Provisions Act, 1978 on which great reliance was placed by learned Additional Solicitor General there is no such harsh provi- sion like Section 5. Since both the substantive and proce- dural law apply to a terrorist and disruptionist or a terror- ist act or a disruptive act, it is necessary, in my opinion, that this section if it has to be immune from attack of arbi- trariness, may be invoked only if there is some material to show that the person who was possessed of the arms in- tended it to be used for terrorist or disruptionist activity or it was an arm and ammunition which in fact was used.”

    (emphasis supplied)

17. He further relied upon judgment of this Court in the case of

Girdhari  Parmanand  Vadhava  Vs.  State  of  Maharashtra,

(1996) 11 SCC 179, wherein it was enunciated that a crime even if

perpetrated with extreme brutality may not constitute “terrorist ac-

tivity” within the meaning of Section 3(1) of TADA. For constituting

“terrorist activity”, the activity must be intended to strike terror in

people or a section of the people or bring about other consequences

referred to in Section 3(1). Terrorist activity is not confined to un-

lawful activity or crime committed against an individual or individ-

uals but it aims at bringing about terror in the minds of people or

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section of people disturbing public order, public peace and tran-

quillity, social and communal harmony, disturbing or destabilising

public administration and threatening security and integrity of the

country.

18. Therefore, it will be very dangerous for us, in the absence of

legislative attempt, to provide with an opinion to define whether

any activity falls within the definition of terrorist activity or not.

After all the legislative intent behind enactment of any statute shall

prevail. This Court had opined in the words of Justice Dr. A. S.

Anand  in  Hitendra  Vishnu  Thakur  &  Ors.  Vs.  State  Of

Maharashtra & Ors., (1994) 4 SCC 602, that “7.  'Terrorism'  is  one of  the  manifestations of  increased lawlessness  and  cult  of  violence.  Violence  and  crime constitute a threat to an established order and are a revolt against  a  civilised  society.  'Terrorism'  has  not  been defined under TADA nor is  it  possible  to give a precise definition  of  'terrorism'  or  lay  down  what  constitutes 'terrorism'.  It  may  be  possible  to  describe  it  as  use  of violence when its most important result is not merely the physical  and  mental  damage  of  the  victim  but  the prolonged  psychological  effect  it  produces  or  has  the potential  of  producing on the society as a whole.  There may be death, injury, or destruction of property or even deprivation  of  individual  liberty  in  the  process  but  the extent and reach of the intended terrorist activity travels beyond the effect of an ordinary crime capable of being punished under the ordinary penal law of the land and its main objective is  to  overawe the Government or  disturb harmony of the society or "terrorise" people and the society

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and  not  only  those  directly  assaulted,  with  a  view  to disturb even tempo, peace and tranquillity of the society and  create  a  sense  of  fear  and  insecurity.  A  'terrorist' activity does not merely arise by causing disturbance of law  and  order  or  of  public  order.  The  fall  out  of  the intended activity must be such that it travels beyond the capacity  of  the  ordinary  law  enforcement  agencies  to tackle  it  under  the  ordinary  penal  law.  Experience  has shown  us  that  'terrorism'  is  generally  an  attempt  to acquire or maintain power or control by intimidation and causing fear and helplessness in the minds of the people at large or any section thereof and is a totally abnormal phenomenon.  What  distinguishes  'terrorism'  from  other forms of violence, therefore, appears to be the deliberate and  systematic  use  of  coercive  intimidation.  More  often than not, a hardened criminal today takes advantage of the situation and by wearing the cloak of 'terrorism', aims to achieve for  himself  acceptability and respectability in the society because unfortunately in the States affected by militancy, a 'terrorist' is projected as a hero by his group and often even by the  misguided youth.  It  is  therefore, essential  to  treat  such  a  criminal  and  deal  with  him differently than an ordinary criminal capable of being tried by the ordinary courts under the penal law of the land. Even though the crime committed by a 'terrorist'  and an ordinary criminal would be overlapping to an extent but then it  is  not  the intention of  the Legislature that every criminal should be tried under TADA, where the fall out of his activity does not extend beyond the normal frontiers of the ordinary criminal  activity.  Every 'terrorist'  may be a criminal but every criminal cannot be given the label of a 'terrorist'  only  to  set  in  motion  the  more  stringent provisions of TADA. The criminal activity in order to invoke TADA must be committed with the requisite intention as contemplated  by Section  3(1) of  the  Act  by  use  of  such weapons  as  have been  enumerated  in Section  3(1) and which  cause  or  are  likely  to  result  in  the  offences  as mentioned in the said section.”

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19. We  would,  therefore,  make  it  abundantly  clear  that  these

relied cases do not help the respondent to make a case under the

provisions of TADA in the absence of intention to cause terror in

the minds of people or strike on them with terror. Therefore, in our

considered opinion, the approvals granted by the Superintendent of

Police  (PW-26)  and  the  IG,  CBI  (PW-28),  in  the  facts  and

circumstances of the present case, were completely invalid lacking

compliance of the requirements prescribed under Section 20-A of

TADA. Albeit, it can rightly be opined that prior approvals were bad

in law in the present case, nevertheless, it cannot be said that the

entire  proceedings  against  the  accused-appellants  under  TADA,

were  vitiated  in  the  light  of  the  judgment  in  the  case  of

Ashrafkhan alias Babu Munnekhan Pathan & Anr. Vs. State

of Guajrat, (2012) 11 SCC 606, wherein this Court observed:  “33.  Now  we  proceed  to  consider  the  submission advanced by the State that non-compliance with Section 20-A(1) i.e.  absence  of  approval  of  the  District Superintendent of Police, is a curable defect under Section 465 of the Code. We do not have the slightest hesitation in holding that Section 465 of the Code shall be attracted in the  trial  of  an  offence  by  the  Designated  Court  under TADA. This would be evident from Section 14 (3) of TADA which reads as follows:

‘14.Procedure and powers of Designated Courts.-  (1)-(2) …  (3)  Subject  to  the  other  provisions  of  this  Act,  a

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Designated Court shall, for the purpose of trial of any offence,  have all  the powers of  a Court  of  Session and shall  try such offence as if  it  were a Court of Session  so  far  as  may be  in  accordance  with  the procedure prescribed in the Code for the trial before a Court of Session.’

34. From a plain reading of the aforesaid provision it is evident that for the purpose of trial Designated Court is a Court  of   Session.  It  has  all  the  powers  of  a  Court  of Session  and  while  trying  the  case  under  TADA,  the Designated Court has to follow the procedure prescribed in the Code for  the trial before a Court of Session.  Section 465 of the Code, which falls in Chapter 35, covers cases triable by a Court of Session also.   Hence, the prosecution can take shelter behind Section 465 of  the Code.   But Section 465 of the  Code  shall  not  be  a  panacea  for  all error,  omission  or irregularity.  Omission to grant prior approval  for  registration  of  the case under TADA by the Superintendent of Police is not the kind of  omission which is covered under Section 465 of the Code.  It is a defect which goes to the root of the matter and it is not one of the curable defects.”

20. We are therefore of this considered opinion that as a result of

illegal  sanction  order  the  criminal  proceedings  for  prosecution

under  the  TADA Act  are  vitiated  entirely.  Suffice  it  to  say  that

Learned Court  under  the  TADA Act  has grossly  erred in  taking

cognizance of the case.  

21. Mr. M. Karpaga Vinayagam, learned senior counsel appearing

for the appellants advanced three main submissions, apart from

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challenging the sanction granted by the competent authority which

has already been discussed in earlier paragraphs.  He submitted

that  the  eye-witnesses  and  PW-7  are  not  reliable.  He  further

submitted  that  A-1’s  confession  is  not  voluntary  and there  has

been non-examination of material witnesses. Concluding with his

arguments he would say that the Identification Parade is a farce

and that there are infirmities in the depositions of the Investigating

Officers being PW-2, PW-24 & PW-30.  

22. We have reappreciated the evidence on record and considered

the  arguments  advanced  by  Mr.  P.K.  Dey,  learned  counsel

appearing for the respondent-CBI. Though we find little difficulty in

accepting the view taken by the learned Designated Court in its

entirety, as it arises from several notable facts, it is not and cannot

be disputed that the deceased was killed at the entrance of  his

house.  The post-mortem report  being  Ext.P-14,  which was  duly

proved by PW15 - Dr. Thiagarajan,  also mentioned the cause of

death being shock and haemorrhage due to multiple cut and stab

injures sustained by the deceased somewhere near 5 O’clock in the

morning  on  10.10.1994.  We  have  noticed  that  PW-1 was  never

called for identification of the accused-appellants.

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23. Apropos question of reliability of the test identification parade

in the present case, when admittedly accused were already seen

through newspaper, we emphasise on few judgments of this Court

before coming to the answer to this question. This Court in the

case of  Suresh Chandra Bahri Vs. State of Bihar, 1995 Supp

(1) SCC 80, has held:  

“ 78….From  this  point  of  view  it  is  a  matter  of  great importance both for the investigating agency and for the accused  and  a  fortiori  for  the  proper  administration  of justice that such identification is held without avoidable and unreasonable delay after  the arrest  of  the accused and that  all  the  necessary  precautions  and  safeguards were effectively taken so that the investigation proceeds on correct lines for punishing the real culprit. It would, in addition, be fair to the witness concerned also who was a stranger to the accused because in that event the chances of  his  memory  fading  away  are  reduced  and  he  is required  to  identify  the  alleged  culprit  at  the  earliest possible opportunity after the occurrence. It is in adopting this course alone that justice and fair play can be assured both to the accused as well as to the prosecution. But the position may be different when the accused or a culprit who stands trial had been seen not once but for quite a number  of  times  at  different  point  of  time  and  places which fact may do away with the necessity of TI parade.”

24. We accept the contention of the learned senior counsel for the

appellants that the test identification parade was a farce as after

the pictures of the accused had been published in the newspaper,

the identification parade which is a very weak piece of  evidence

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should not have been conducted.  

25. Before  concluding  this  judgment,  it  would  be  necessary  to

consider  the  most  important  factor  to  which  our  attention  was

invited by the learned counsel for the respondent, i.e., confession

of accused and unearthing of conspiracy and recovery of evidences

thereafter. Having regard to observation recorded so far, emphasis

on the judgment delivered by this Court in  State (NCT of Delhi)

Vs. Navjot Sandhu, (2005) 11 SCC 600, is necessary wherein it

was observed:  

“28.  In  the  Privy  Council  decision  of  Pakala  Narayana Swami  vs.  Emperor,  AIR 1939 PC 47,  Lord  Atkin  eluci- dated the meaning and purport of the expression 'confes- sion' in the following words:

"[A]  confession must either admit in terms the offence, or at any rate substantially all the facts which consti- tute the offence. An admission of a gravely incriminat- ing fact, even a conclusively incriminating fact is not of itself a confession…"

29. Confessions are considered highly reliable because no rational person would make admission against his inter- est  unless prompted by his  conscience to  tell  the  truth. "Deliberate  and voluntary  confessions of  guilt,  if  clearly proved are among the most effectual proofs in law". (vide Taylor's Treatise on the Law of Evidence Vol. I). However, before acting upon a confession the court must be satisfied that it was freely and voluntarily made. A confession by hope or promise of advantage, reward or immunity or by force or by fear induced by violence or threats of violence cannot  constitute  evidence against  the  maker  of  confes-

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sion.  The  confession  should  have  been  made  with  full knowledge of the nature and consequences of the confes- sion. If any reasonable doubt is entertained by the court that these ingredients are not satisfied, the court should eschew the confession from consideration. So also the au- thority recording the confession, be it a Magistrate or some other statutory functionary at the pre-trial stage, must ad- dress himself to the issue whether the accused has come forward  to  make  the  confession  in  an  atmosphere  free from fear, duress or hope of some advantage or reward in- duced by the persons in authority. Recognizing the stark reality of the accused being enveloped in a state of fear and panic,  anxiety and despair while in police custody, the Evidence Act has excluded the admissibility of a con- fession made to the police officer.”

In a subsequent para of  this relied judgment this Court further

observed:  “32. As to what should be the legal approach of the Court called upon to convict a person primarily in the light of the confession or a retracted confession has been succinctly summarized  in Bharat  vs.  State  of  U.P.  [1971  (3)  SCC 950].  Hidayatullah,  C.J.,  speaking  for  a  three-Judge Bench observed thus: Confessions can be acted upon if the court is satisfied that they are voluntary and that they are true. The voluntary nature of the confession depends upon whether there was any threat, inducement or promise and its truth is judged in  the  context  of  the  entire  prosecution  case.  The confession  must  fit  into  the  proved  facts  and  not  run counter  to  them.  When  the  voluntary  character  of  the confession and its truth are accepted, it is safe to rely on it. Indeed a confession, if it is voluntary and true and not made under any inducement or threat or promise, is the most  patent  piece  of  evidence  against  the  maker. Retracted  confession,  however,  stands  on  a  slightly different footing. As the Privy Council once stated, in India it is the rule to find a confession and to find it retracted later.  A  court  may  take  into  account  the  retracted

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confession, but it must look for the reasons for the making of the confession as well as for its retraction, and must weigh the two to determine whether the retraction affects the voluntary nature of the confession or not. If the court is satisfied that it was retracted because of an after-thought or advice, the retraction may not weigh with the court if the general facts proved in the case and the tenor of the confession as made and the circumstances of its making and withdrawal warrant its user. All the same, the courts do not act upon the retracted confession without finding assurance from some other sources as to the guilt of the accused. Therefore, it can be stated that a true confession made voluntarily may be acted upon with slight evidence to corroborate it,  but a retracted confession requires the general assurance that the retraction was an after-thought and that  the  earlier  statement  was true.  This  was laid down  by  this  Court  in  an  earlier  case  reported in Subramania Gounden v. The State of Madras(1958 SCR 428).”

26. We are of this considered opinion that the confessions of A-1

and  A-6  are  involuntary  as  they  were  taken  in  the  immediate

custody of  high security  of  CBI  and a non-voluntary  confession

cannot form the basis of conviction. We would like to emphasize on

another  observation made by  this  Court  in  Ashrafkhan’s case

(supra): “41. We have held the conviction of the accused to have been  vitiated  on account of non-compliance with Section 20-A(1) of TADA and  thus,  it  may  be permissible in law to maintain the conviction under the  Arms  Act  and  the Explosive Substances Act but that shall only  be  possible when  there  are legally admissible evidence to  establish those  charges.  The Designated Court has only relied on the  confessions  recorded  under  TADA  to  convict  the

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accused  for  offences  under  the  Arms  Act  and  the Explosive  Substances  Act.  In  view of  our finding that their conviction is vitiated on account of non-compliance of the mandatory requirement of prior approval under Section 20-A(1)  of  TADA,  the  confessions  recorded  cannot  be looked  into   to  establish  the  guilt  under  the  aforesaid Acts.  Hence, the conviction of the accused under Sections 7 and 25(1-A) of the Arms Act and Sections 4, 5 and 6 of the Explosive Substances Act cannot also be allowed to stand.”

27. We would also like to recapitulate observation of this Court in

Ashrafkhan’s case (supra) which reads as follows: “44. The facts of the case might induce mournful reflection how an attempt by the investigating agency charged with the duty of  preventing  terrorism  and  securing  conviction  has  been frustrated by what is  popularly  called a technical  error.  We emphasize and deem it necessary to repeat that the gravity of the evil to the community from terrorism can never furnish an adequate  reason for  invading the  personal  liberty,  except  in accordance with the procedure established by the Constitution and the laws.”

28. In the light of the judgments cited above and the material on

record, we have no hesitation in holding that whole proceedings in

the present case were vitiated. Therefore, the order of conviction

and sentence passed by the Designated Court is hereby quashed

and set-aside. The appellants herein be released forthwith, if not

required in any other case.

29. In the result, the appeals filed by the accused-appellants are,

accordingly, allowed.

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. . . . . . . . . . . . . . . . . . . . .J (Pinaki Chandra Ghose)

….. . . . . . . . . . . . . . . . . . . J (Rohinton Fali Nariman)

New Delhi; April 27, 2017.