REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

                   CRIMINAL APPEAL NO(s). 2307 OF 2009

 RANGKU DUTTA @ RANJAN KUMAR DUTTA               Appellant (s)

                VERSUS

 STATE OF ASSAM                                   Respondent(s)

J U D G M E N T

Ganguly, J.

Heard learned counsel for the parties.

This is a statutory appeal under Section 19 of Terrorist  

and  Disruptive  Activities  (Prevention)  Act,  1987  (hereinafter  

referred  to  as  “the  said  Act”)  impugning  an  order  dated  

10.9.2009  passed  by  the  Designated  Court  TADA.   The  learned  

counsel  appearing  for  the  sole  appellant  has  impugned  the  

judgment of the designated court (TADA) on various grounds but  

at  the  time  of  arguments,  he  made  emphasis  on  a  particular  

ground,  namely,  that  in  the  instant  case,  the  FIR  has  been  

recorded in clear violation of the provisions contained under  

Section  20(A)(1)  of  the  said  Act,  as  a  result  whereof,  the  

entire proceeding subsequent thereto has been vitiated and this  

has  also  vitiated  the  judgment  and  order  of  the  designated  

court.

The material facts of the facts are these.

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That FIR was lodged on 6.11.1993 by one Ajit Kumar Sarma,  

Office-in-Charge  of  Bihpuria  Police  Station  against  several  

persons including the appellant.  Of the four accused persons,  

no charges were framed against Moni Pathak.  In so far as Bhaben  

Gogoi @ Bikram was concerned, he was acquitted by the designated  

court and Indreswar Hazarika @ Babul Handique died during the  

pendency of the proceedings before the designated court.  Only  

Rangku  Dutta  @  Ranjan  Kumar  Dutta  was  convicted  and  is  the  

appellant before us.    

The  FIR  which  has  been  lodged  on  6.11.1993  runs  as  

follows:-

“I beg to report that on 5.11.93 at 2150 hrs.  while SI AQM Zahingir I/C Dholpur O.P. along with the  PSO  Hav.  Loknath  Konwar  and  other  police  personnel  were informed law and order duty in connection with  Debraj Theatre show at Dhalpur circle in open place by  the side of Hill, some ULFA extremist fired at SI AQM  Zahingir  and  PSO  Hav.  Loknath  under  simultaneously  from a close range behind them and as a result both of  them succumbed to injuries.

Earlier  of  this  incident  on  5.10.93  an  encounter  took  place  between  the  ULFA  with  Dhalpur  O.P. Place and under the leadership of SI AQM Zahangir  I/C Dhalpur O.P. where Lakhimpur Dist. ULFA commander  Jogen  Gogoi  killed  and  since  them  the  banned  ULFA  activists associates of Jogen Gogoi were planning with  criminals conspiracy to liquidate SI AQM Zahingir.

On 5.11.93 evening the said ULFA activists with  the  help  of  Sri  ranku  Dutta  got  identified  SI  AQM  Zahingir  and  then  ULFA  extremist  namely  (1)  Sri  Indreswar  Hazarika  @  Babul  Handique  (2)  Sri  Nobel  Gogoi @ Bikram under the leadership of Sri Moni Pathak  @  Debo  Pathak  taking  advantage  of  darkness  attacks  simultaneously  with  fire  arms  and  killed  SI  AQM  Zahingir and PSO Hav. Loknath Knowar.

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

On the basis of the FIR, a case being Bihpuria Police  

Station  Case  No.  497  of  1993,  was  initiated  under  Section  

120B/302 IPC read with Section 3 / 4 and 5 TADA (P) Act and the  

designated  court  vide  order  dated  31st October,  2002  framed  

charges  against  the  appellant,  inter  alia,  under  Section  

120(B)/302 of the Indian Penal Code and Section 3(2)(1) of the  

said Act.  Thereafter, the designated court by impugned judgment  

dated 10th September, 2009 passed in TADA Sessions Case No. 116  

of 2000 found the appellant guilty of offences punishable under  

Section 120B/302 IPC read with Section 3(2)(1) of the said Act  

and sentenced him to undergo imprisonment for life and to pay a  

fine  of  Rs.  2000/-,  in  default  further  imprisonment  for  two  

months.

Learned counsel appearing for the appellant urged that in  

accordance with the provisions contained under Section 20(A)(1)

of the said Act, no information about the commission of any  

offence  under  the  said  Act  shall  be  recorded  by  the  Police  

without prior approval of the District Superintendent of Police.  

Learned Counsel submitted that the said provision under  

Section 20(A)(1) was incorporated by way of an amendment vide  

Section 9 of Act 43 of 1993.  The said amendment came into  

effect on 23.5.1993 and the FIR was recorded on 6.11.1993.  

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Therefore, at the time when the FIR was recorded, the provision  

of Section 20(A)(1) was clearly attracted.

It will be in the fitness of things that to appreciate  

the points urged by the appellant, Section 20(A) is set out  

below:

20-A Cognizance of offence – (1) Notwithstanding  anything contained in the Code, no information about  the commission of an offence under this Act shall be  recorded by the police without the prior approval of  the District Superintendent of Police.

(2)No court shall take cognizance of any offence under  this  Act  without  the  previous  sanction  of  the  Inspector-General of Police, or as the case may be,  Commissioner of Police.

Relying on the said section, the learned Counsel for the  

appellant submitted that from the evidence of PW 15 Ajit Kumar  

Sarma who recorded the FIR, it is clear that he did not take the

approval of the Superintendent of Police before recording the  

FIR.  In his cross-examination, PW 15 clearly stated “I did not  

obtain the approval from the concerned SP for registering the  

case.”  From the evidence of PW 11, who is one Sanjit Sekhar  

Roy, learned counsel stated that the said PW 11 was working on  

22.6.2000 as DSP Headquarter at North Lakhimpur.  In his cross-

examination,  he  stated  that  the  occurrence  took  place  on  

6.11.1993 and prior to the filing of the Ejahar which is the  

FIR, the written approval of the SP concerned was not obtained  

and in the Ejahar itself, There is no approval of SP, North  

Lakhimpur.

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We have looked into the original FIR Exhibit P-12.  In  

the original FIR, the following endorsement which has been made  

by Ajit Kumar Sarma is quoted below:-

“Received  and  registered  Bihpuria  PS  Case  no. 0497/93 u/s 120(B)/302 I.P.C. R/W 3/4/5 TADA (P)  Act, 1987 with the approval of SP(I) NL.”

It is an admitted position in this case that even though  

the aforesaid endorsement has been made in the FIR, the SP(I),  

North Lakhimpur, whose approval is alleged to have been taken by  

PW 15 Ajit Kumar Sarma has not been examined by the prosecution.  

Apart from that, in the substantive evidence before the Court,  

PW 15, Ajit Kumar Sarma has categorically stated that he has not

obtained approval of SP before registering the case.  He rather  

said  that  he  registered  the  case  and  himself  took  up  the  

investigation  of  the  case,  prepared  the  seizure  list  and  

recorded the statement of witnesses and at that point of time,  

the rank of Ajit Kumar Sarma was that of SI of police.

We have already referred to the evidence of PW 11 who has  

also deposed that written approval of SP was not obtained.

In the background of these facts, the question is whether  

in this case the mandatory requirement of Section 20(A)(1) was  

complied  with.   Attention  of  this  Court  has  been  drawn  to  

certain decisions of the Court where from it appears that there  

was a controversy and divergence of judicial view as to whether

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written  approval  or  oral  approval  is  required.   The  said  

divergence of judicial view has been set at rest by the judgment  

of a three-Judge Bench of this Court in  State of A.P. Vs.  A.  

Satyanarayana and Others 2001(10) SCC 597.

A  Three-Judge  Bench  of  this  Court  setting  out  the  

controversy in this matter ultimately came to hold as follows in  

paragraph 8:-

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

approval  only  in  writing.   Prior  approval  is  a  condition precedent for registering a case, but it may  be  either  in  writing  or  oral  also,  as  has  been  observed by this Court in  Kalpanath Rai case 1997(8)  SCC  732  and,  therefore,  in  the  case  in  hand,  the  learned  Designated  Judge  was  wholly  in  error  in  refusing to register the case under Sections 4 and 5  of TADA.  We, therefore, set aside the impugned order  of the learned Designated Judge and direct that the  matter  should  be  proceeded  with  in  accordance  with  law.”

It is, therefore, clear that approval has to be taken,  

even if it is an oral approval.  Attention of this Court has  

also been drawn to a decision rendered in Hitendra Vishnu Thakur  

and Others Vs. State of Maharashtra and Others 1994(4)SCC 602 as  

to the requirement of the provision of Section 20(A)(1).  The  

learned  Judges  of  this  Court  after  considering  various  

provisions of the said Act held that the requirement of Section  

20(A)(1) of TADA was introduced by way of an amendment with a  

view to prevent abuse of the provisions of TADA.  We, therefore,  

reiterate the principles laid down by this Court in paragraph 12  

by Justice Dr. A.S. Anand(as His Lordship then was), which is  

set out below:-

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“Of late, we have come across some cases where  the  Designated  Courts  have  charge-sheeted  and/or  convicted  an  accused  person  under  TADA  even  though  there is not even an iota of evidence from which it  could  be  inferred,  even  prima  facie,  let  alone  conclusively, that the crime was committed with the  intention as contemplated by the provisions of TADA,  merely on the statement of the investigating agency to  the effect that the consequence of the criminal act  resulted in causing panic or terror in the society or  in  a  section  thereof.   Such  orders  result  in  the  misuse  of  TADA  Parliament,  through  Section  20-A  of

TADA has clearly manifested its intention to treat the  offences  under  TADA  seriously  inasmuch  as  under  Section 20-A(1), notwithstanding anything contained in  the Code of Criminal Procedure, no information about  the commission of an offence under TADA shall even be  recorded without the prior approval of the District  Superintendent of Police and under Section 20-A(2), no  court shall take congisance of any offence under TADA  without  the  previous  sanction  of  the  authorities  prescribed therein.  Section 20-A was thus introduced  in the Act with a view to prevent the abuse of the  provisions of TADA.”

Learned counsel appearing on behalf of the State wanted  

to urge that in the instant case, the requirement of Section  

20(A)(1)  has  been  complied  with  and  in  support  of  her  

submissions, the learned counsel has drawn the attention of this  

Court to the evidence of PW 4 and PW 6.  In his evidence, PW 4  

Nitul Gogoi has said that on 21.10.94 he was working as D.S.P.  

H.Q. at Lakhimpur.  On that day, the S.P. Lakhimpur handed over  

the  CD  of  this  case  to  him  to  hold  “remaining  part  of  

investigation of the case.”

PW 6 Nirmal Dr. Das also deposed that on 25.9.99, he was  

working as Head Quarter DSP at North Lakhimpur.  On that day,  

S.P. Lakhimpur entrusted the investigation of the case in his  

name and accordingly, he got the CD from R.S.I.

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Relying on the aforesaid deposition of PW 4 and PW 6, the  

learned  counsel  urged  that  in  the  instant  case,  the  

investigation  was  conducted  by  the  DSP,  therefore,  the  

requirement of section 20(A)(1) has been complied with.  We are

unable to appreciate the aforesaid submission.

It  is  obvious  that  Section  20(A)(1)  is  a  mandatory  

requirement of law.  First, it starts with an overriding clause  

and, thereafter, to emphasise its mandatory nature, it uses the  

expression  “No”  after  the  overriding  clause.   Whenever  the  

intent of a statute is mandatory, it is clothed with a negative  

command.   Reference  in  this  connection  can  be  made  to  G.P.  

Singh's Principles of Statutory Interpretation, 12th Edition.  At  

page 404, the learned author has stated:

“As  stated  by  CRAWFORD:  “Prohibitive  or  negative words can rarely, if ever, be directory.  And  this is so even though the statute provides no penalty  for  disobedience.   As  observed  by  SUBBARAO,  J.:  “Negative  words  are  clearly  prohibitory  and  are  ordinarily  used  as  a  legislative  device  to  make  a  statute imperative”.  Section 80 and Section 87-B of  the Code of Civil Procedure, 1908, section 77 of the  Railways Act, 1890; section 15 of the Bombay Rent Act,  1947; section 213 of the Succession Act, 1925; section  5-A of the Prevention of Corruption Act, 1947; section  7 of the Stamp Act, 1899; section 108 of the Companies  Act,  1956; section  20(1) of  the Prevention  of Food  Adulteration Act, 1954; section 55 of the Wild Life  Protection Act, 1972, the proviso to section 33(2)(b)  of the Industrial Disputes Act, 1947 (as amended in  1956); section 10A of Medical Council Act, 1956 (as  amended in 1993), and similar other provisions have  therefore, been construed as mandatory.  A provision  requiring 'not les than three months' notice is also  for the same reason mandatory.”

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We  are  in  respectful  agreement  with  the  aforesaid  

statement of law by the learned author.

So there can be no doubt about the mandatory nature of  

the requirement of this Section.  Apart from that, since the  

said section has been amended in order to prevent the abuse of  

the provisions of TADA,  this Court while examining the question  

of complying with the said provision must examine it strictly.

Going by the aforesaid principles, this Court finds that  

no information about the commission of an offence under the said  

Act can be recorded by the Police without the prior approval of  

the  District  Superintendent  of  Police.   Therefore,  the  

requirement of prior approval must be satisfied at the time of  

recording  the  information.   If  a  subsequent  investigation  is  

carried on without a proper recording of the information by the  

DSP  in  terms  of  Section  20(A)(1),  that  does  not  cure  the  

inherent defect of recording the information without the prior  

approval of the District Superintendent of Police.  Whether the  

Deputy Superintendent of Police is a District Superintendent of  

Police or not is a different question which we need not decide  

in this case.  But one thing is clear that the requirement of  

approval must be made at the initial stage of recording the  

information.  If there is absence of approval at the stage of  

recording  the  information,  the  same  cannot  be  cured  by  

subsequent  carrying  on  of  the  investigation  by  the  DSP.  

Reference in this connection is made to the principles laid down

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by Lord Denning speaking for the Judicial Committee of Privy  

Council in Benjamin Leonard MacFoy Versus United Africa Co. Ltd.  

[1961(3) Weekly Law Reports 1405].  Lord Denning, speaking for  

the unanimous Bench, pointed out the effect of an act which is  

void so succintly that I better quote him:

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

We are in respectful agreement with the aforesaid view.

Therefore, the evidence of PW 4 and PW 6 do not come to  

any aid of the State Counsel in the facts of the present case.

We are, however, surprised to find that the Designated  

Court in the impugned judgment has come to a finding that there  

has been verbal approval from the Superintendent of Police even  

after noting that the I.O. In this case (PW 15) admitted that he  

did not obtain approval.  It is nobody's case that PW 15 was  

confronted  with  the  FIR  while  he  was  giving  his  evidence.  

Therefore, the prosecution in this case has failed to bring on  

record that verbal approval was obtained.  It may be noted that  

PW 15 has not been declared hostile.

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Therefore, having regard to the clear evidence of PW 15,  

this Court is constrained to hold that even verbal approval of  

the  concerned  authority  was  not  obtained  in  the  case  before  

recording the information.

Therefore,  the  entire  proceeding  right  from  the  

reigstering  of  the  FIR,  filing  of  the  charge-sheet  and  the  

subsequent trial is vitiated by a legal infirmity and there is a  

total miscarriage of justice in holding the trial, ignoring the  

vital requirement of law.  We have, therefore, no hesitation in  

setting aside the impugned judgment of the Designated Court.

The appeal is, therefore, allowed.  The appellant who is  

in jail must be set at liberty forthwith, if not required in  

connection with any other case.

..........................J.  (ASOK KUMAR GANGULY)

.........................J.  (DEEPAK VERMA)

NEW DELHI MAY 20, 2011