# HITENDRA VISHNU THAKUR AND ORS. ETC. ETC v. STATE OF MAHARASHTRA AND ORS

- **Citation:** [1994] Supp. 1 S.C.R. 360
- **Court:** Supreme Court of India
- **Decided:** 1994-07-12
- **Case number:** Criminal Procedure, 1973Section 167 (as amended by Amendment Act No. 43 of 1993
- **Bench:** Dr. A.S. Anand, Faizan Uddin
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/hitendra-vishnu-thakur-and-ors-etc-etc-v-state-of-maharashtra-and-ors-12421
- **Pages:** 61

## Headnote

Terrorists and Dismptive Activities (Prevention) Act, 1987-Seclion 3(1)
read with Section 2(l)(h).
Terrorism within the meaning of Sub-section ( 1) of Section 3 read with
Clause (h) of Sub-section ( 1) of Section 2 of TADA means use of violence
resulting not merely in physical and mental damage lo the victim but also the
prolonged psychological effect it produces or has potentiality to produce on
the Society as a whole.
Terrorists and. Dismptive Activities (Prevention) Act, 1987-Section
20(4).
Code of Criminal Procedure, 1973Section 167 (as amended by Amendment Act No. 43 of 1993), Section
167 of the Code read with Section 20( 4) of TADA is not a provision for grant
of bail but deals with maximum period during which an accused may be kept
in custody and detention to eit'able the investigating agency to complete the
investigation and file the charge-sheet, if any, in the Court.
Terrorists and Dismptive Activities (Prevention) Act, 1987: Section 18:
If the designated court finds that the offence does not even prima facie
fall under TADA, it must not proceed and must transfer the case to regular
court under Section 18 of TADA.
G
Terrorists and Disrnptive Activities (Prevention) Act, 1987-Sub-section
20(4)(bb}--Sections 167 read with Secs. 173-Code of Criminal Procedure,
1973.
If the police fails to complete the investigation and put up a challan
against the accused in accordance with law under Section 173 Cr.P.C., an
H indefeasible right to be enlarged on bail accrnes to the accused after the expiry
360
H.V. 1HAKUR v. STATE OF MAHARASHTRA
361
of the maximum period during which an accused can be kept in custodrThe A
Court is obliged in such a case, to decline die police request for further
remand except in cases governed by Clauses(bb) of Sub-section ( 4) of Section
20.
Temirists and Disniptive Activities (Prevemion) Act, 1987: Section
20(4) and Section 20(8):
' '
"
The grounds on which bail may be denied under Sub-sectio11(8) of
Section 20 of TADA are irrelevant for the consideration of the prayer of
release on bail on account of the default of the prosecution wider Sub-section
B
(4) of Section 20 of TADA.
C
Terrorists and Disruptive Activities (Prevemion) Act, 1987: Section
20-A(2).
At the stage of sanction for prosecution for an offence under TADA
only the prima facie case should be established to show that the authority D
competent to grant sanction had applied its mind to the facts of the case
before sanction was accorded.
On 09.10.89 one D was shot dead at 10.30 A.M. at a Railway Station
in the presence of his brother-in-law, the eye-witness. The F.I.R. was lodged
by the deceased's brother. Durjng the investigation, two other accused were E
arrested and charge-sheeted. Trial is pending in the Sessions Court. In
February, 1992, the D.I.G. of Police concerned during inspection found
that the case had not been investigated properly. He obtained a complaint
from the deceased's wife and ordered re-investigation. Permission of the
Sessions Court was also obtained under Section 173(8) of Cr.P.C. More F
accused were arrested and remanded to judicial custody. The petitioner
and two others read a news item indicating that they were likely to be
arrested in connection with the case. They approached the High Court for
anticipatory bail. After notice to the public prosecutor (P.P.), the High
Court granted interim anticipatory bail. The prosec11tion filed an applica· G
lion in the High Court stating that since in the instant case provisions of
TADA were applicable, the accused could not be admitted to anticipatory
bail because of the exclusion of the provisions of Section 438 of Cr.P.C. in
respect of offences under TADA. The High Court dismissed the an·
ticipatory bail application, but kept effective the order of. interim an·
ticipatory bail for a period of one week to enable the applicants to take H
362
SUPREME COURT REPORTS [1994] SUPP.1 S.C.R.
A
recourse to further proceedings.
B
c
Writ Petition was filed by the petitioner for a decla

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A
HITENDRA VISHNU THAKUR AND ORS. ETC. ETC.
B
c
D
E
F
v.
STATE OF MAHARASHTRA AND ORS.
JULY 12, 1994
[DR. A.S. ANAND AND FAIZAN UDDIN, JJ.J
Terrorists and Dismptive Activities (Prevention) Act, 1987-Seclion 3(1)
read with Section 2(l)(h).
Terrorism within the meaning of Sub-section ( 1) of Section 3 read with
Clause (h) of Sub-section ( 1) of Section 2 of TADA means use of violence
resulting not merely in physical and mental damage lo the victim but also the
prolonged psychological effect it produces or has potentiality to produce on
the Society as a whole.
Terrorists and. Dismptive Activities (Prevention) Act, 1987-Section
20(4).
Code of Criminal Procedure, 1973Section 167 (as amended by Amendment Act No. 43 of 1993), Section
167 of the Code read with Section 20( 4) of TADA is not a provision for grant
of bail but deals with maximum period during which an accused may be kept
in custody and detention to eit'able the investigating agency to complete the
investigation and file the charge-sheet, if any, in the Court.
Terrorists and Dismptive Activities (Prevention) Act, 1987: Section 18:
If the designated court finds that the offence does not even prima facie
fall under TADA, it must not proceed and must transfer the case to regular
court under Section 18 of TADA.
G
Terrorists and Disrnptive Activities (Prevention) Act, 1987-Sub-section
20(4)(bb}--Sections 167 read with Secs. 173-Code of Criminal Procedure,
1973.
If the police fails to complete the investigation and put up a challan
against the accused in accordance with law under Section 173 Cr.P.C., an
H indefeasible right to be enlarged on bail accrnes to the accused after the expiry
360
H.V. 1HAKUR v. STATE OF MAHARASHTRA
361
of the maximum period during which an accused can be kept in custodrThe A
Court is obliged in such a case, to decline die police request for further
remand except in cases governed by Clauses(bb) of Sub-section ( 4) of Section
20.
Temirists and Disniptive Activities (Prevemion) Act, 1987: Section
20(4) and Section 20(8):
' '
"
The grounds on which bail may be denied under Sub-sectio11(8) of
Section 20 of TADA are irrelevant for the consideration of the prayer of
release on bail on account of the default of the prosecution wider Sub-section
B
(4) of Section 20 of TADA.
C
Terrorists and Disruptive Activities (Prevemion) Act, 1987: Section
20-A(2).
At the stage of sanction for prosecution for an offence under TADA
only the prima facie case should be established to show that the authority D
competent to grant sanction had applied its mind to the facts of the case
before sanction was accorded.
On 09.10.89 one D was shot dead at 10.30 A.M. at a Railway Station
in the presence of his brother-in-law, the eye-witness. The F.I.R. was lodged
by the deceased's brother. Durjng the investigation, two other accused were E
arrested and charge-sheeted. Trial is pending in the Sessions Court. In
February, 1992, the D.I.G. of Police concerned during inspection found
that the case had not been investigated properly. He obtained a complaint
from the deceased's wife and ordered re-investigation. Permission of the
Sessions Court was also obtained under Section 173(8) of Cr.P.C. More F
accused were arrested and remanded to judicial custody. The petitioner
and two others read a news item indicating that they were likely to be
arrested in connection with the case. They approached the High Court for
anticipatory bail. After notice to the public prosecutor (P.P.), the High
Court granted interim anticipatory bail. The prosec11tion filed an applica· G
lion in the High Court stating that since in the instant case provisions of
TADA were applicable, the accused could not be admitted to anticipatory
bail because of the exclusion of the provisions of Section 438 of Cr.P.C. in
respect of offences under TADA. The High Court dismissed the an·
ticipatory bail application, but kept effective the order of. interim an·
ticipatory bail for a period of one week to enable the applicants to take H
362
SUPREME COURT REPORTS [1994] SUPP.1 S.C.R.
A
recourse to further proceedings.
B
c
Writ Petition was filed by the petitioner for a declaration that TADA
was not applicable to the facts of the case. The Writ Petition was dismissed
with the observation that the designated Court under TADA may go into
the question of the applicability of TADA. Special Leave Petition against
the order of the High Court was dismissed by this Court. Petitioner
surrendered before the police and was later on remanded to judicial
custody. Application for bail was dismissed by the designated court. The
application urging that the provisions of TADA were not applicable was
also dismissed,
The Parliament enacted Amendment Act No. 43/93 which came Into
force on 22nd May, 1993. Section 20(4)(b) was, inter alia, amended by which
the time for filing the charge-sheet was reduced from one year to 180 days.
A new clause (bb) providing for grant of extention of time for completion
of investigation and filing of challan on report of the P.P. subject to a
D maximum period of one year was Introduced. The petitlon~r filed an
application for bail on the ground that 180 days bad expired on 04.05.93
without any charge·sheet/challan having been filed. On 12.07.93, also ex·
tention of time to complete the investigation was filed and an application
seeking the P.P. opposed the bail application. Bail application was dis·
E
F
G
missed and the extension of time granted till 30th August, 1993 to file the
challan/charge· sheet, treating the application of the investigation officer
'
(IO) as a report of the public prosecutor.
Appeal was filed from the judgment and order dated 31.07.93 of the
designated court before the Supreme Court.
The following questions arose for consideration:
1. When can the provisions of Section 3(1) of .the Terrorist and
Disruptive Activities Act, 1987. (hereinafter referred to as the TADA) be
attracted?
2. Is the 1993 Amendment amending Section 167(2) of the Code of
Criminal Procedure by modifying Section 20( 4)(b) and adding a new
provision as 20(4)(bb), applicable to the pending cases i.e. is retrospective
in operation'?
H
3. What is the true ambit and scope of Section 20(4) and Section
H.V. THAKUR v. STATE OF MAHARASHTRA
363
20(8) of TADA in the matter of grant of bail to an accused brought before A
the Designated Court and the factors which the Designated Court has to
keep in view while dealing with an application for grant of Bail under
Section 20(4) and for grant of extension of time to the prosecution for
further investigation under clause (bb) of Section 20(4) and incidently
whether the conditions contained in Section 20(8) control the grant of bail
under Section 20(4) of the Act also?
B
It was submitted for· the appellants that despite the constitutional
validity of Section 3 of TADA being upheld by the Constitution Bench of
this Court in Kartar Singh v. 17ie State of Punjab, keeping in view the
stringent nature of the provisions of TADA the offence constituted by C
Section 3 of TADA must be the one which qualifies stricto-senso as a
"terrorist act" and unless the crime alleged against an accused can be
classified as a "terrorist act" in letter and in spirit. Section 3(1) of TADA
has no application and an accused shall have to be tried under the
ordinary penal law and in such a fact situation, it is a statutory obligation D
cast on the Designated Court to transfer the case from that court for its
trial by the regular courts under the ordinary criminal law i~ \iew of the
provisions of Section 18 of TADA. It ls submitted that the Designated
Court should not, without proper application of mind, charge sheet or
convict an accused under Section 3 of TADA simply because the Investigating officer, decides to Include that section while filing the challan and that E
it ls not open to the State to apply TADA to the ordinary problems arising
out of disturbance of law and order or even to situations arising out of the
disturbance of public order - a more serious type of crime alone would
justify trial under TADA.
On the other hand it was contended for the respondents that since
the constitutional validity of Section 3 of TADA has been upheld by a
Constitution Bench in Kartar Singh's case it is not permissible to re-examine its validity on the basis of some argument which might have been
raised before the Constitution Bench but was not so raised.
Dismissing the appeals, this Court
HELD: t. Most of the criminal activities constituting a terrorist act
F
G
and offences under the penal law, do overlap. However, where an act
complained of is punishable under Section 3 of TADA, it invites more
stringent punishment than the punishment prescribed for the offence H
A
B
364
SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.
under the ordinary penal law. Section 6 of TADA provides even for
imposition of enhanced penalties for a person who with the intent to aid
any terrorist or disruptionist activity, contravenes any of the provisions of
or any rule made under the Arms ·Act, 1959, the Explosive Act, 1884, the
Explosive Substances Act, 1908 or the Inflammable Substances Act, 1952
and renders him liable to punishment for not less than 5 years. The
punishment may, in certain cases, extend to imprisonment for life with
fine, notwithstanding anything contained in the provisions of acts or the
rules made under the respective acts. [372-E-F]
2.1. "Terrorism
11 is one of the manifestations of increased law-less·
C
ness and cult of violence. Violence and crime constitute a threat to an
established order and are a revolt against a civilized society. "Terrorism"
has not been defined under TADA nor is it possible to give a precise
definition of"terrorism". It may be possible to describe it as use ofviolence
when its most important result is not merely the physical and mental
D demage 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
E is to overawe the Government or disturb harmony of the society or "terrorise" people and the society and not only those directly assaulted, with
a view to disturb even tempo, peac_e and tranquility 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
F
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. [372-H, 372-A·C]
2.2. 'Terrorism' is generally an attempt to acquire or maintain power
or control by intimidation and causing fear and helplessness in the mind.'
G 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. The criminal activity in order to invoke TADA must be
committeed with the requisite intention as contemplated 1Jr Section 3(1)
H of the Act by use of such weapons as have been enumerated in Section 3(1)
.,
H.V. THAKUR v. STATE OF MAHARASHTRA
365
and which cause or are likely to result in the offences as mentioned in the A
said section. The intended extent and reach of the criminal activity of the
'terrorist' is such which travels beyond the gravity of the mere disturbance
of public order even of a 'virulent nature' and may at times transcend the
frontiers of the locality and may include such anti-national activities which
throw a challenge to the very integrity and sovereignty of the country in its B
democratic polity. Unless the Act complained of falls strictly within the
letter and spirit of Section 3(1) of TADA and is committeed with the
intention as envisaged by that Section by means of the weapons etc. as are
enumerated therein with the motive as postulated thereby, an aet:used
cannot be tried or convicted for an offence under Section 3(1) of TADA. It
is the obligation of the investigation agency to satisfy the Designated Court C
from the material collected by it during the investigation, and not merely
by the opinion formed by the investigating agency, that the activity of the
"terrorist" falls strictly within the parametres of the provisions of TADA
before seeking to charge-sheet an accused.under TADA. The Designated
Court must record Its satisfaction about the existence of a prima facie case, D
on the basis of the material on the record, before it proceeds to frame a
charge sheet against an accused for offences covered by TADA. Even after
an accused has been charge-sheeted for an offence under TADA and the
prosecution leads evidence in the case, it is an obligation of the Designated
Court to take extra care to examine the evidence with a view to find out
whether the provisions of the Act apply or not. The designated Court, is, E
therefore, expected to carefully examine the evidence and after analysing
the same come to a firm conclusion that the evidence led by the prosecution
has established that the case of the accused falls strictly within the four
corners of the Act before recording a conviction against an accused under
TADA. [373-D, G, 376-G, 379GH, 380-A]
p
3.1. The proviso to Section 167(2) of the Criminal Procedure Code
read with Section' 20(4)(b) of TADA, therefore, creates an indefeasible
right in an accused person, on account of the 'default' by the investigating
agency in the completion of the investigation within the maximum period G
prescribed or extended, as the case may be, to seek an order for his release
on bail. Once a period for filing the charge sheet has expired and either
no extension under Clause (bb) has been granted by the Designated Court
or the period of extension has also expired, the accused person would be
entitled to move an application for being admitted to bail under sub-section (4) of Section 20 TADA read with Section 167 of the Code and the H
366
SUPREME COURT REPORTS (1994] SUPP. 1 S.C.R.
A Designated Court shall release him on bail, if the accused seeks to be so
released and furnishes the requisite bail. We are not impressed with the
argument of the learned counsel for the appellant that on the expiry of the
period during which investigation is required to be completed under
Section 20( 4) TADA read with Section 167 of the Code, the Court must
B release the accused on bail on its own motion even without any application
from an accused person, on his offering to furnish bail. In our opinion an
accused is required to make an application if he wishes to be released on
bail on account of the 'default' of the investigatinwprosecuting agency and
once such an application is made, the Court should issue a notice to the
public prosecutor, who may either show that the prosecution bas obtained
C the order for extension for completion of investigation from the court
under clause (bb) or that the challan has been filed in the Designated
Court before the expiry of the prescribed period or even that the prescribed
period has actually not expired and, thus resist the grant of bail on the
alleged ground of 'default'. The issuance of notice would avoid the pos·
D sibility of an accused obtaining an order of bail under the 'default' clause
by either deliberately or inadvertently concealing certain facts and would
avoid multiplicity of proceedings. (384-E-H, 385-A, BJ
E
F
3.2. It would, therefore, serve the ends of justice if both sides ·are
heard on a petition for grant of ball on account of the prosecution's
'default'. The objection to the grant of bail to an accused on account of the
'default' of the prosecution to complete the investigation and file the
challan within the maximum period prescribed under clause (b) of sub·
section (4) of Section 20 of TADA or within the extended period as
envisaged by clause (bb), has to be limited to the cases where either the
factual basis of invoking the 'default' clause is not available or the period
for completion of investigation has been extended under clause (bb) and
the like. No other condition, like the gravity of the case, seriousness of the
offence or character of the offender etc. can weigh with the court at that
stage to refuse the grant of bail to an accused under sub-section ( 4) of
Section 20 TADA on account of the 'default' of the prosecutiqn. It is totally
G inconceivable and unacceptable that the considerations. for grant of bail
under Section 20(8) would be applicable to and control the grant of bail
under Section 20(4) of the Act. The two provisions operate in different
and independent fields. The basis for grant of bail under Section 20(4), as
already noticed, is entirely different from the grounds on which ball may
H be granted under Section 20(8) of the Act. (385-B, F, G & 386·D·E]
H.V. IBAKUR v. STATE OF MAHARASHTRA
367
4. The ambit and scope of Section 20(8) of TADA is no longer A
res-integra. Both the provisions i.e. Section 20( 4) and 20(8) of TADA
operate in different situations and are controlled and guided by different
considerations. Thus for seeking extension of time under clause (bb), the
public prosecutor after an independent application of his mind to the
request of the investigating agency, is required to make a report to the B
Designated Court indicating therein the progress of the investigation and
disclosingjustilication for keeping the accused in further custody to enable
the investigating agency to complete the investigation. The public
prosecutor may attach the request of the investigating officer alongwith
his request or application and report, but his report, as envisaged under
clause (bb), must disclose on the face of it, that he has applied his mind C
and was satisfied with the progress of the investigation and considered
grant of further time to complete the investigation nece~sary. The use of
the expression "on the report of the public prosecutor indicating the
progress of the investigation and the specific reasons for the detention of
the accused beyond the said period" as occurring in clause (bb) in sub-sec· D
tion(2) of Section 167 as amended by Section 20(4) are important and
indicative of the legislative intent not to keep an accused in custody
unreasonably and to grant extension only on the report of the public
prosecutor. The report of the public prosecutor, therefore, is not merely a
formality but a very vital report, because the consequence of its acceptance E
affects the liberty of an accused and It must, therefore, strictly comply with
the requirements as contained in clause (bb). The request of an investigating officer fo.r extension of time is no substitute for the report ofthe public
prosecutor. Where either no report as is envisaged by clause (bb) is filed
or the report filed by the public prosecutor is not accepted by the Desig·
nated Court, since. the grant of extension of time under clause (bb) is
neither a formality nor automatic, the necessary corollary would be that
an accused would be entitled to seek bail and the court "shall" release him
F
on bail if he furnishes bail as required by the Designated Court. Since,
both the clauses (b) and ·(bb) as introduced by the Amendment Act, fall
within the realm of procedural law, these would be applicable to pending G
cases since there is no vested right in an accused in the procedural law.
Thus the Amendment Act 43 of 1993 is retrospective in operation and both
clauses (b) and (bb) of sub-section (4) of Section 20 of TADA apply to the
cases which were pending i."estigation on the date when the amendment
came Into force with effect from 22.05.93 and in which the challan had not H
368
SUPREME COURT REPORTS [1994) SUPP. I S.C.R.
A
been filed till then. [388-C, 389-A-F, 383-C, 394-C}
5. An accused person seeking bail under Section 20(4) has to make
an application to the court for grant or bail on grounds or the 'default' or
the prosecution and the court shall n:lease the accused on bail after notice
B to the public prosecutor uninfluenced by the gravity of the offence or the
merits of the prosecution case since Section 20(8) does not control the
grant of bail under Section 20(4) of TADA and both the provisions operate
in separate and independent fields. It is, however, permissible for the
public prosecutor to resist the grant or bail by seeking an extension under
C clause (bb) by filing a report for the purpose before the court. However,
no extension shall be granted by the court without notice to an accused to
have his say regarding the prayer for grant of extension under clause (bb).
In this view of the matter, it Is immaterial whether the application for bail
on ground of 'default' under Section 20(4) is filed first or the report as
envisaged by clause (bb) is filed by the public prosecutor first so long as
D both are considered while granting or refusing ball. If the period
prescribed by clause (b) of Section 20(4) has expired and the court does
not grant an extension on the report of the public prosecutor made under
clause \bb), the . .:qurt shall release the accused on ball as It would be an
Indefeasible right·of the accused to be so released. Even where the court
E grants an extension under clause (bb) but the charge-sheet Is not filed
within the e<lended· period, the court shall have no option but to release
the accused on tiall, If he seeks It and is prepared to furnish the ball as
directed by the C'il1frt. Moreover, no extension under clause (bb) can be
granted by the 1Des'ignated Court except ou a report of the public
F
prosecutor nor i!lih extension be granted for reasons other than those
specifically'contilllied in clause (bb), which must be strictly construed.
.,
[394-D-H, 395-A]
6.1. As would be seen from the application itself, it is not a report of
G the public prosecutor but an application filed by the Sub-Divisional Police
Officer and is addressed to the Designated Judge of the Designated Court.
Admittedly besides the application no other report was filed by the Public
Prosecutor to seek extension of time for completion of the investigation as
envisaged by clause (bb) of Section 20(4) o(TADA read with Section 167(2)
H of the Code. [399-G-H]
H.V. THAKUR,._ STATE OF MAHARASHTRA [DR. ANAND, J.J
369
6.2. From the perusal of the objections of the public prosecutor, A
extracted above, it transpires that the application of the investigating
officer was submitted direct to the Designated Court by the Investigating
Officer and not by the Pnblic Prosecutor and the prayer for release on bail
of the applicant under Section 20(4) was opposed mainly on grounds which
are relevant under Section 20(8) of TADA and not under Section 20(4) of B
the Act. The grounds on which bail may be denied under Section 20(8) of
TADA are irrelevant for the consideration of the prayer for release on bail
on account of the 'default' of the prosecution under Section 20(4) of TADA.
(404-D-E]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
732-35/93 etc. etc.
From the Judgment and Order dated the 31st July 1993 of the
Designated Court at Pune in Terrorist Criminal. Misc. Application Nos.
81, 83, 84 and 85/93.
K.T.S. Tutsi, K.G. Bhagat, U.R. Lalit, Kapil Sibal, N.T. Vanamalai,
Swaraj Kaushal, P.N. Gupta, Bharat Ramah, P.M. Hegde, Kailash Vasdev,
AM. Khanwilkar, Yatendra Sharma, Raju Ramachandran, M.D. Adkar,
Ejaz Maqbool, K.M. Reddy, AS. Bhasme, Rajeev Sharma, P.N. Bhan, Joy
c
D
Basu, K.M. Reddy & AS. Bhasme for the appearing parties.
E
The Judgment of the Court was delivered by
DR. ANAND, J. In this batch of criminal appeals and special leave
petitions (criminal} the three meaningful questions which require our
consideration are: (1) when. can the provisions of Section 3(1} of the
Terrorist and Disruptive Activities Act. 1987. (hereinafter referred to as
the TADA} be attracted? (2) Is the 1993 Amendment, amending Section
167(2} of the Code of Criminal Procedure by modifying Section 20(4}(b}
and adding a new provision as 20( 4}(b ), applicable to the pending case i.e.
F
is retrospective in operation? And (3) what is the true ambit and scope of G
Section 20( 4} and Section 20(8) of TADA in the matter of grant of bail to
an accused brought before the Designated Court and the factors which the
Designated Court has to keep in view while dealing with an application for
grant of Bail under Section 20( 4) and for grant of extension of time to the
prosecution for further investigation under clause (bb) of Section 20( 4} and H
370
SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.
A
incidently whether the conditions contained in Section 20(8) TADA control the grant of bail under Section 20(4) of the Act also" We shall take
up for consideration these questions in seriatim.
B
c
D
E
F
When can the provisions of Section 3(1) of TADA be attracted'?
Learned counsel for the appellants submitted that even thought the
constitutional validity of Section 3 of TADA has been upheld by a Constitution Bench of this court in Ka1tar Singh v. The State of Punjab, JT
(1994) 2 SC 423 = (1994) 1 Apex Decisions SC (Criminal) 413, nonetheless
keeping in view the stringent nature of the pro,osions of TADA the offence
constituted by Section 3 of TADA must be the one which qualifies strictosenso as a "terrorist act" and unless the crime alleged against an accused
can be classified as a "terrorist act" in letter and in spirit. Section 3(1) of
TADA has no application and an accused shall have to be tried under the
ordinary penal law and in such a fact situation, it is a statutory obligation
cast on the Designated Court to transfer the case from that court for its
trial by the regular courts under the ordinary criminal law in -'ew of the
provisions of Section 18 of TADA. It is submitted that the Designated
Court should not, without proper application of mind. charge-sheet or
conv1ct an accused under Section 3 of TADA simply because the investigation officer, decides to include that Section while filing the challan and that
it is not open to the State to apply TADA to the ordinary problems arising
out of disturbance of law and order or even to situations arising out of the
disturbance of public order - a more serious type of crime alone would
justify trial under TADA.
Shri K.T.S. Tulsi, the learned Additional Solicitor General and Shri
Madhava Reddy, Senior Advocate, appearing for the State on the other
hand submitted that since the constitutional validity of Section 3 of TADA
has been upheld by a Constitution Bench in Kartar Singlz's case (supra), it
is not permissible for this Bench to re-examine its validity on the basis of
some argument which might have been raised before the Constitution
G Bench but was not so raised. Three grounds of challenge which were raised
before the Constitution Bench to question the legality and the efficaciousness of Sections 3 and 4 of TADA v1z:
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"(l) These two Sections cover the acts which constitute offences
under ordinary laws like the Indian Penal Code. Indian Arms Act
and Explosive Substance Act:
H.V. THAKUR v. STATE OF MAHARASHTRA [DR. ANAND).[
371
(2) There is no guiding principle laid down when the executive can
proceed under the ordinary laws or under this impugned Act of
1987: and
(3) This Act and the Sections 3 and 4 thereof should be struck
down on the principle laid down in State of West Bengal v. Anwar
Ali Sarkar, [1952[ SCR 284 and followed in many other cases
including A.R. Anntlay v. Union of India, [1988] 2 SCC 764.
were considered by the Constitution Bench aod while upholding the vires
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and validity of Sections 3 and 4 of TADA, all the three grounds of
challenge were negatived and therefore after the Constitution Bench JudgC
ment, it is not permissible to read within the provisions of Section 3
anything more than what the Legislature has specifically provided therein.
To combat the menace of terrorism, it is necessary that restrictive interpretation should not be placed on the provisions of Section 3 of TADA
and simply because the offences under Section 3 of TADA and under the
ordinary penal law overlap, the court should not lay down as a general D
proposition that Section 3 of TADA is inapplicable in all su~ situations
where the offences overlap.
The expression 'terrorist act' has been defined in Section 2{1)(h) of
TADA. It provides that the expression terrorist act "has the meaning
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assigned to it in Sub-Section (1) of Section 3".
Section 3(1) provides as under:
"3. Punishment for terrorist acts - (1) Whoever with intent to
overawe the Government as by law established or to strike terror
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in the people or any section 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,
dynamite or other explosive substances or inflammable substances
or fire-arms or other lethal weapons or poisons or noxious gases
or other chemicals or by any other substances (whether biological G
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 diruption
of any supplies or services essential to the life of the community,
or detains any person and threatens to· kill or injure such person
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SUPREME COURT REPORTS [1994] SUPP. I S.C.R.
in order to compel the Government or any other person to do or
abstain from doing any act, commits a terrorist act."
Section 3 when analysed would show that whoever with intent (i) to
overawe the Government as by law established: or (ii) to .strike terror in
the people or any section of the people or (iii) to alienate any section of
the people or (iv) to adversely affect the harmony 1mongst different
sections of the people, does any act or things by using (a) bombs or
dyoamite or (b) other explosives substances or (c) inflammable substances
or (d) fire arms or (e) other lethal weapons or (t) poisons or noxious gases
or other chemicals or (g) any other substances (whether biological or
otherwise) of a hazardous nature in such a nianner as to cause or as is likely
to cause (i) death or (ii) injuries to any person or persons or (iii) loss of
or damage to or destruction of property or (iv) disruption of any supplies
or services essential to the life of the community or (v) detains any person
and threatens to kill or injure such person in order to compel the GovernD
ment or any other person to do or abstain from doing any act, cornntits a
"tmorist act" punishable under Section 3 of TADA.
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It is, thus, seen that most of the criminal activities constituting a
terrorist act and offences under the penal law, do overlap. However, where
an act complained of is punishable under Section 3 of TADA, it invites
more stringent punishment than the punishment prescribed for the offence
under the ordinary penal Jaw. Section 6 of TADA provides even for
imposition of enhanced penalties for a person who with the intent to aid
any terrorist or disruptionist activity, contravenes any of the provisions of
or any rule made under the Arms Act 1959, the Explosive Act, 1884, the
Explosive Substances Act 1908 or the Inflammable Substances Act 1952
and renders him liable to punishment for not less than 5 years. The
punishment may, in certain cases, extend to imprisonment for life with fine,
notwithstanding anything contained in the provisions of acts or the rules
made under the respective acts.
11Terrorism
11 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 civilized society.
11Terrorismn has not been
defined under TADA nor is it possible to give a precise definition of
11terrorism
11 or law down what constitutes "terrorism". It may be possible to
H describe it as use of violence when its most important result is not merely
H.V. TIIAKUR v. STATEOFMAHARASHTRA[DR.ANAND,J.)
373
the physical and mental damage of the victim but the prolonged psychologiA
cal 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 B
main objective is to overawe the Government or disturb harmony of the
society or "terrorise" people and the society and not only those directly
assaulted, .with a view to disturb even tempo, peace and tranquility 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 C
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 D
'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 effected by militancy, a 'terrorist' is projected as a hero by his group and E
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
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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 G
Section 3(1) of the Act by use of such weapons as have been ennumerated
in Section 3( 1) and which cause ?""-re likely to result in the offences as
mentioned in the said section.~-.
·
The Constitution Bench noticed that the offences arising out of a H
374
SUPREME COURT REPORTS [1994) SUPP. 1 S.C.R.
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terrorist or disruptive activity may overlap the offences covered by the
ordinary penal law and dealing with the situation under which the
provisions of TADA would be attracted, observed:
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"As we have indicated above, 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 teTTorist
and disruptive activities, secondly that the incensed offences are
arising out of the activities of the teTTorists 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 teTTor 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. (Emphasis supplied)
In Usmanbhai Dawoodhai Memon & Ors. v. State of Gujara~ [1988)
2 SCC 271, this Court observed:
"The legislature by enacting the law has treated terrorism as a
special criminal problem and created a special court called a
Designated Court to deal with the special problem and provided
for a special procedure for the trial of such offences ........................ ..
The act is a special Act and creates a new class of offences called
terrorist acts and disruptive activities as defined in Sections 3(1)
and 4(2) and provides for a special procedure for the trial of such
offences.
Again, in Niranjan Singh Karam Singh Punjabi Advocate etc. etc. v.
Jitendra Bhimraj Bijjaya & Ors., [1990) 4 SCC 76, after noticing with
approval the opinion of this Court in Usmanbhai's case (supra), it was
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observed:
H.V. TifAKUR v. STATEOFMAHARASHTRA[DR.ANAND,J.]
375
"the provisions of the Act need not be resorted to if the nature of A
the activities of the accused can be checked and controlled under
the ordinary law of the land. It is only in those cases where the
law enforcing machinery finds the ordinary law to be inadequate
or not sufficiently effective for tackling the menace of terrorist and
disruptive activities that· resort should be had to the drastic B
provisions of the Act. While invoking a criminal statute, such as
the Act, the prosecution is duty bound to show from the record of
the case and the documents collected in the course of investigation
that facts emerging therefrom prima facie constitute an offence
within the letter of the law. When a statute provides special or
enhanced punishments as compared to the punishments prescriOed C
for similar offences under the ordinary penal laws of the country,
a higher responsibility and duty is cast on the Judge to make sure
there exists prima facie evidence for supporting the charge levelled
by the prosecution. Therefore, when a law visits a person with
serious penal consequences extra care must be taken to ensure D
that those whom the legislature did not intend to be covered by
the express language of the statute are not roped in by stretching
the language of the law."
The Court then considered the facts in Niranjan Singh's (Supra) case and
referred to the statement of the witnesses which had been relied upon by
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the prosecution to attract the provisions of Section 3(1) of the Act. The
court found that the intention of the accused persons in that case was
merely to eliminate Raju and Keshav for gaining supremacy in the underworld. The Bench noticed that a statement had been made by the investigating agency to the effect that the activities of the accused were aimed
F
at creating terror and fear in the minds of the people in general and
observed:
"A mere statement to the effect that the show of such violence
would create terror or fear in the minds of the people and none G
would dare to oppose them cannot constitute an offence under
Section 3(1) of the Act. That may indeed be the fall out of the
violent act but that cannot be said to be the intention of the
perpetrators of the crime. It is clear from the statement extracted
earlier that the intention of the accused persons was to eliminate
the rivals and gain supremacy in the underworld so that they may H
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SUPREME COURT REPORTS (1994] SUPP. 1 S.C.R.
be known as the bullies of the locality and would be dreaded as
such. But it cannot be said that their intention was to strike terror
in the people or a section of the people and thereby commit a
terrorist act.