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REPORTABLE IN THE SUPREME COURT OF INDIA  

CRIMINAL APPELLATE JURISDICTION  

CRIMINAL APPEAL  NO(S).  2464-2466/2014

STATE OF RAJASTHAN                             APPELLANT(S)                                 VERSUS MOHINUDDIN JAMAL ALVI & ANR.                  RESPONDENT(S)

WITH CRIMINAL APPEAL NOs. 464-466/2013

J U D G M E N T  

A.K. SIKRI,J.

All these appeals arise out of a common judgment dated 24.04.2012 rendered by the Designated Court for Rajasthan at Ajmer in TADA Special Case Nos. 1, 2 & 3 of 1999.

Four accused persons were arrayed and prosecuted by the prosecution  under  Sections  3(2)(ii),  3(3)  and  6(1)  of  the Terrorist  and  Disruptive  Activities  (Prevention)  Act, 1987(hereinafter referred to as “TADA Act” and  Section 4A  of the Explosive Substances Act,1908. The  TADA  Court  has acquitted two accused, namely, M. Jamal Alvi and Habib Ahmed.

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Against their acquittal, State of Rajasthan has filed appeals which are registered as Criminal Appeal Nos. 2464-66 of 2014. Other two accused, namely, Abre Rehmat Ansari @ Qari and Dr. Mohd. Jalees Ansari, have been convicted by the TADA Court and challenging that conviction, these persons have filed Criminal Appeal Nos. 464-466 of 2013. It is for this reason, we have heard all these appeals together which are being disposed of by this common judgment.  

Mr. R.K. Dash, learned senior counsel, appearing for the convicted  accused  persons  submitted  at  the  outset  that  he would not be going into the merits of the case because of the reason that the prosecution has to fail due to non-compliance of the mandatory requirements of Section 20A of the TADA Act. For this reason, we are eschewing any discussion on the merits of the case.  Section 20A deals with the cognizance of offense that has to be taken under TADA Act and 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

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Police.”

As per the aforesaid Section, no information about the commission of offense under TADA is to be recorded by the police without the  prior approval of District Superintendent of  Police.  The  specific  authority  which  is  named  under sub-Section (1) of Section 20A is District Superintendent of Police. In the present case, it is on record that the approval that was taken was of Additional Director General of Police Mr. Shyam Partap Singh Rathore. The TADA Court has treated the said approval as valid because of the reason that approval is given  by  an  authority  which  is  higher  than  the  District Superintendent of Police. The question, therefore, is as to whether it is only District Superintendent of Police whose approval will meet the requirements of law or it can be given by an Officer higher in rank. This question is no more  res integra and is settled by a series of judgments of this Court. It is not necessary to give account of all those judgments as in  the  latest  judgment  rendered  by  this  Court  in  Hussein Ghadially @ M.H.G.A.Shaikh & Ors. vs. State of Gujarat (2014)

8 SCC   425,  all the previous precedents are taken note of and on that basis, this Court has reiterated the position in law that even an authority higher in rank would not be competent to  give  the  approval  as  required  under  sub-Section(1)of Section 21A of the TADA Act. The same has been interpreted  in

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the said judgment in the following manner:  “21. 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. The question is whether the power of approval vested in the District Superintendent of  Police  could  be  exercised  by  either  the Government  or  the  Additional  Police Commissioner, Surat in the instant case. Our answer to that question is in the negative. The reasons are not far to seek: 21.1 We  say  so  firstly  because  the  statute vests  the  grant  approval  in  an  authority specifically designated for the purpose. That being  so,  no  one  except  the  authority  so designated, can exercise that power. Permitting exercise of the power by any other authority whether superior or inferior to the authority designated by the Statute will have the effect of re-writing the provision and defeating the legislative purpose behind the same - a course that is legally impermissible. In Joint Action Committee of Air Line Pilots’ Association of India  V.  Director  General  of  Civil  Aviation (2011) 5 SCC 435, this Court declared that even senior officials cannot provide any guidelines or direction to the authority under the statute to act in a particular manner.  21.2. Secondly, because exercise of the power vested in the District Superintendent of Police under  Section  20-A  (1)  would  involve application of mind by the officer concerned to the material placed before him on the basis whereof,  alone  a  decision  whether  or  not information regarding commission of an offence under TADA should be recorded can be taken. Exercise  of  the  power  granting  or  refusing approval under Section 20-A (1) in its very nature casts a duty upon the officer concerned to  evaluate  the  information  and  determine having  regard  to  all  attendant  circumstances whether  or  not  a  case  for  invoking  the provisions of TADA is made out. Exercise of

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that power by anyone other than the designated authority viz. the District Superintendent of Police  would  amount  to  such  other  authority clutching at the jurisdiction of the designated officer, no matter such officer or authority purporting to exercise that power is superior in rank and position to the officer authorised by law to take the decision.

21.3. Thirdly, because if the Statute provides for a thing to be done in a particular manner, then it must be done in that manner alone. All other modes or methods of doing that thing must be  deemed  to  have  been  prohibited.  That proposition of law first was stated in Taylor v. Taylor (1875)LR 1 ChD 426 and adopted later by the Judicial Committee in Nazir Ahmed v. King Emperor AIR 1936 PC 253 and by this Court in a series of judgments including those in Rao Shiv Bahadur Singh & Anr. v. State of Vindhya Pradesh AIR 1954 SC 322, State of Uttar Pradesh v.  Singhara  Singh  AIR  1964  SC  358,  Chandra Kishore Jha v. Mahavir Prasad 1999 (8) SCC 266, Dhananjaya Reddy v. State of Karnataka 2001 (4) SCC  9  and  Gujarat  Urja  Vikas  Nigam  Ltd.  V. Essar  Power  Ltd.  2008  (4)  SCC  755.  The principle stated in the above decisions applies to the cases at hand not because there is any specific procedure that is prescribed by the Statute for grant of approval but because if the approval could be granted by anyone in the police hierarchy the provision specifying the authority for grant of such approval might as well not have been enacted.”

In arriving at the aforesaid conclusion, the Court also referred to and relied upon the three Judge Bench decision of this Court in Anirudhsinhji Karansinhji Jadeja & Anr. Vs State of Gujarat (1995) 5 SCC 302, in which the position in law was stated in the following manner:

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“11. The case against the appellants originally was registered on 19-3-1995 under the Arms Act. The DSP did not give any prior approval on his own  to  record  any  information  about  the commission  of  an  offence  under  TADA.  On  the contrary, he made a report to the Additional Chief  Secretary  and  asked  for  permission  to proceed under TADA. Why? Was it because he was reluctant  to  exercise  jurisdiction  vested  in him by the provision of Section 20-A(1)? This is a case of power conferred upon one authority being  really  exercised  by  another.  If  a statutory  authority  has  been  vested  with jurisdiction, he has to exercise it according to  its  own  discretion.  If  the  discretion  is exercised under the direction or in compliance with some higher authority’s instruction, then it  will  be  a  case  of  failure  to  exercise discretion  altogether.  In  other  words,  the discretion vested in the DSP in this case by Section 20-A(1) was not exercised by the DSP at all.”  

Learned  counsel  appearing  for  the  State  of  Rajasthan tried  to  argue  that  the  Division  Bench  in  the  aforesaid judgment  in Hussein Ghadially @M.H.G.A.Shaikh & Ors. (Supra) did  not  interpret  the  decision  rendered  in  Anirudhsinhji Karansinhji Jadeja & Anr. (Supra) correctly. As according to him, in Anirudhsinhji Karansinhji Jadeja & Anr. (Supra), this Court  had  given  one  more  reason  for  quashing  the  TADA proceedings  which  is  contained  in  para  15  of  the  said judgment, as in the said para, the Court noted that the State Government  had  given  sanction  without  even  discussing  the matter with the Investigating Officer and without assessing

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the situation independently which showed lack of proper and due application of mind of the State Government by giving sanction/consent. His submission predicated on para 15 of the said judgment that the prosecution would be treated as bad in law only if there was a default on the part of the prosecutor on  both  the  aspects,  namely,  only  when  violation  of sub-Section(1)  of  Section  20A  as  well  as  grant  of  prior approval by the District Superintendent of Police is not there and  also  when  the  State  Government  while  giving sanction/consent has not applied its mind independently. We do not agree with the contention of the learned counsel for the State.  From  the  reading  of  the  judgment  in  Anirudhsinhji Karansinhji Jadeja & Anr. (Supra), it becomes clear that this Court had given the aforesaid two reasons while holding that the trial against the accused persons in the said case under TADA was vitiated.  However, that does not mean that both the reasons have to be satisfied. Even both are independent of each other and even if one violation is found that would be sufficient to upset the trial. That is what this Court did in Hussein Ghadially @ M.H.G.A.Shaikh & Ors. (Supra).

From the aforesaid it becomes clear that since the prior approval  of  the  District  Superintendent  of  Police  was  not taken in the instant case, the trial got vitiated on this

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ground itself. The appeals filed by the convict persons being Criminal Appeal Nos. 464-466 of 2013 are allowed setting aside their conviction. The other appeals which are preferred by the State  being  Criminal  Appeal  Nos.  2464-2466  of  2014  are dismissed.   The two convicts, namely, Abre Rehmat Ansari @ Qari and Dr. Mohd. Jalees Ansari shall be released forthwith, if they are not required in any other case.  

......................J. [A.K. SIKRI]

......................J.    [R.K.AGRAWAL]

NEW DELHI; MAY 04, 2016.