# PRAKASH KUMAR @ PRAKASH BHUTTO v. STATE OF GUJARAT

- **Citation:** [2005] 1 S.C.R. 408
- **Court:** Supreme Court of India
- **Decided:** 2005-01-12
- **Case number:** Criminal Appeal No. 526 of 2001
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/prakash-kumar-prakash-bhutto-v-state-of-gujarat-20436
- **Pages:** 29

## Headnote

A
PRAKASH KUMAR @ PRAKASH BHUTTO
v.
.,,
STATE OF GUJARAT
JANUARY 12, 2005
B [R.C. LAHOTI, CJ., B.N. AGRAWAL, H.K. SEMA, G.P. MATHUR AND
P.K. BALASUBRAMANY AN, JJ.]
~
Terrorist and Disruptive Activities (Prevention) Act, 1987:
-f
c
Sections 15 & 12-Tria/ of offer.ces under TADA together with offence
under any other law-Admissibility of confession recorded under S.15 of TADA,
in case accused acquitted of offences under TADA in the same trial-Held, it
would continue to remain admissible for offences under any other law which
were tried alongwith TADA offences.
D
Section 12-Trial under TADA-Non-availability of ordinary procedural
Jaw-Held, not discriminatory-Persons tried under TADA form a distinct
class-Procedure prescribed for trying them for the aggravated and incensed
~
nature of offences are under different classification-Constitution of India,
~
1950--Articles 14 and 21.
E
Section 18-Invocation of for transferring cases to regular courtsHeld, the provision is invokable only at the stage where the Designated Court
takes cognizance, i.e. after the investigation is complete and charge-sheet is
filed.
F
Misuse of the Act-Caution against, to Police Officials as well as
Presiding Officers of Designated Courts-To enforce the Act effectively and
.I,
in consonance with the legislative intendment i.e. after application of mind
Interpretation of Statutes-Jurisdiction of Court to interpret a statute
can be invoked only in case of ambiguity.
G
Words and Phrases- "but subject to the provisions of this Section" and
'for an offence under this Act" -Meaning of in context to S.15 of the Terrorist
and Disruptive Activities (Prevention) Act.
Doubting the correctness of the decision in State v. Nalini, [1999] 5
H
408
\
)<
"
1
i
;..
P. KUMAR@ PRAKASH BHUTTO"' STATE OF GU.IA RAT
409
SCC 253 as to admissibility of a confession in terms of Section 15 of the
Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA), a twoJudge Bench of this Court referred the matter to a three-Judge Bench
which in turn made this reference to a five-Judge Bench.
The primary question for determination is, as to whether the
confessional statement duly recorded under Section 15 of the TADA would
continue to remain admissible as for the offences under any other law
which were tried along with TADA offences under Section 12 of the Act,
notwithstanding the fact that the accused was acquitted of offences under
TADA in the said trial.
Answering the reference, the Court
HELD: I.I. The Terrorist and Disruptive Activities (Prevention) Act,
.1987 (TADA), though a miniature legislation, is very harsh and drastic
containing stringent provisions to combat the menace of terrorism.
[415-H)
Kartar Singh v. State of Punjab, (1994] 3 SCC 569 and Hitendra Vishnu
Thakur v. State of Maharashtra, (1994] 4 SCC 602, referred to.
Pradip Chandra Parija v. Pramod Chandra Patnaik, (2002) 1 SCC 1,
cited.
1.2. The more stringent the law, the less is the discretion of the Court.
Stringent laws are made for the purpose to achieve its objectives. This
being the intendment of the legislature the duty of the court is to seP that
the intention of the legislature is not frustrated. (422-G-H)
Bilal Ahmed Kaloo v. State of A.P., (1997) 7 SCC 431, overruled.
Rambhai Nathabhai Gadhvi v. State of Gujarat, (1997] 7 SCC 744 and
· Gurprit Singh v. State of Punjab, (2002] 10 SCC 201, held, per incuriam.
A
B
c
D
E
F
Swedish Match AB and Anr. v. Securities & Exchange Board, India and G
Anr., (2004) 7 Scale 158, relied on.
2.l. The jurisdiction of the Court to interpret a statute can be
invoked only in case of ambiguity. The Court cannot enlarge the scope of
legislation or intention when the language of the statute is plain and
unambiguous. (426-C]
H
410
SUPREME COURT REPORTS
[2005] I S.C.R.
A
Nasiruddin v. Sita Ram Agarwal, (20031 2 SCC 577; Mohan Kumar
/
B
Singhania v. Union of India, 119921 Supp. I SCC 594 and Bairam Kumawat
v. Union of India, (20031 7 SCC 628, relied on.
Supdt. And Remembrancer of Legal Af

## Text

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A
PRAKASH KUMAR @ PRAKASH BHUTTO
v.
.,,
STATE OF GUJARAT
JANUARY 12, 2005
B [R.C. LAHOTI, CJ., B.N. AGRAWAL, H.K. SEMA, G.P. MATHUR AND
P.K. BALASUBRAMANY AN, JJ.]
~
Terrorist and Disruptive Activities (Prevention) Act, 1987:
-f
c
Sections 15 & 12-Tria/ of offer.ces under TADA together with offence
under any other law-Admissibility of confession recorded under S.15 of TADA,
in case accused acquitted of offences under TADA in the same trial-Held, it
would continue to remain admissible for offences under any other law which
were tried alongwith TADA offences.
D
Section 12-Trial under TADA-Non-availability of ordinary procedural
Jaw-Held, not discriminatory-Persons tried under TADA form a distinct
class-Procedure prescribed for trying them for the aggravated and incensed
~
nature of offences are under different classification-Constitution of India,
~
1950--Articles 14 and 21.
E
Section 18-Invocation of for transferring cases to regular courtsHeld, the provision is invokable only at the stage where the Designated Court
takes cognizance, i.e. after the investigation is complete and charge-sheet is
filed.
F
Misuse of the Act-Caution against, to Police Officials as well as
Presiding Officers of Designated Courts-To enforce the Act effectively and
.I,
in consonance with the legislative intendment i.e. after application of mind
Interpretation of Statutes-Jurisdiction of Court to interpret a statute
can be invoked only in case of ambiguity.
G
Words and Phrases- "but subject to the provisions of this Section" and
'for an offence under this Act" -Meaning of in context to S.15 of the Terrorist
and Disruptive Activities (Prevention) Act.
Doubting the correctness of the decision in State v. Nalini, [1999] 5
H
408
\
)<
"
1
i
;..
P. KUMAR@ PRAKASH BHUTTO"' STATE OF GU.IA RAT
409
SCC 253 as to admissibility of a confession in terms of Section 15 of the
Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA), a twoJudge Bench of this Court referred the matter to a three-Judge Bench
which in turn made this reference to a five-Judge Bench.
The primary question for determination is, as to whether the
confessional statement duly recorded under Section 15 of the TADA would
continue to remain admissible as for the offences under any other law
which were tried along with TADA offences under Section 12 of the Act,
notwithstanding the fact that the accused was acquitted of offences under
TADA in the said trial.
Answering the reference, the Court
HELD: I.I. The Terrorist and Disruptive Activities (Prevention) Act,
.1987 (TADA), though a miniature legislation, is very harsh and drastic
containing stringent provisions to combat the menace of terrorism.
[415-H)
Kartar Singh v. State of Punjab, (1994] 3 SCC 569 and Hitendra Vishnu
Thakur v. State of Maharashtra, (1994] 4 SCC 602, referred to.
Pradip Chandra Parija v. Pramod Chandra Patnaik, (2002) 1 SCC 1,
cited.
1.2. The more stringent the law, the less is the discretion of the Court.
Stringent laws are made for the purpose to achieve its objectives. This
being the intendment of the legislature the duty of the court is to seP that
the intention of the legislature is not frustrated. (422-G-H)
Bilal Ahmed Kaloo v. State of A.P., (1997) 7 SCC 431, overruled.
Rambhai Nathabhai Gadhvi v. State of Gujarat, (1997] 7 SCC 744 and
· Gurprit Singh v. State of Punjab, (2002] 10 SCC 201, held, per incuriam.
A
B
c
D
E
F
Swedish Match AB and Anr. v. Securities & Exchange Board, India and G
Anr., (2004) 7 Scale 158, relied on.
2.l. The jurisdiction of the Court to interpret a statute can be
invoked only in case of ambiguity. The Court cannot enlarge the scope of
legislation or intention when the language of the statute is plain and
unambiguous. (426-C]
H
410
SUPREME COURT REPORTS
[2005] I S.C.R.
A
Nasiruddin v. Sita Ram Agarwal, (20031 2 SCC 577; Mohan Kumar
/
B
Singhania v. Union of India, 119921 Supp. I SCC 594 and Bairam Kumawat
v. Union of India, (20031 7 SCC 628, relied on.
Supdt. And Remembrancer of Legal Affairs to Govt. of W.B. v. Abani
Maity, (1979) 4 SCC 85, cited.
2.2. Section 15 of the TADA Act and Rules framed thereunder is a
self-contained code in itself, providing procedural safeguards and the
words, "but subject to the provisions of this Section" employed therein
would mean the procedural safeguards prescribed under the Section.
Section 15 has overriding effect over the Evidence Act and Criminal
C Procedure Code, the only procedure to be followed in recording confession
is the procedure prescribed under the provisions of Section 15 and Rules
framed thereunder. This would be the only intention of the Legislation
whi!e introducing the words, "but subject to provisions of this section" in
Section 15(1). (430-H; 431-A-BI
D
2.3 So far the words "for an offence under this Act" employed in
Section 15 is concerned, the word 'Act' referred to in Section 15(1) is
relatable to Section 12 of the Act. Section 15 therefore has to be read
together with Section 12. [431-B)
E
2.4. A conjoint reading of Sections 12 and 15 as a whole leaves no
manner of doubt that one provision is to be construed with reference to
the other provision and vice versa so as to make the provision consistent
with the object sought to be achieved. 1432-D-EI
Reserve Bank of India v. Peerless General Finance & Investment Co.
F Ltd., (19871 1 SCC 424 and Anwar Hasan Khan v. Mohd Shafi and Ors.,
120011 8 sec 540, relied on.
G
2.5. The legislative intendment underlying Section 12(1) and (2) is
clearly discernable, to empower the Designated Court to try and convict
the accused for offences committed under any other law along with
offences committed under the Act, if the offence is connected with such
other offence. The language, "if the offence is connected with such other
offence" employed in Section 12(1) of the Act has great significance. The
necessary corollary is that once the other offence is connected with the
offence under the TADA and if the accused is charged under the Code
H and tried together in the same trial, the Designated Court is empowered
,.
P. KUMAR@ PRAKASH BHUTTO r. STA TE OF GUJARAT
411
' 1t
to convict the accused for the offence under any other law, notwithstanding A
the fact that no offence under TADA is made out. This could be the only
intendment of the legislature. To hold otherwise, would amount to rewrite
or recast the legislation and read something into it which is not there.
1433-C-EI
3.1. The contention that the rigours of Section 12 is discriminatory B
and attract the wrath of Articles 14 and 21 of the Constitution as it
empowers the Designated Court to try and convict the accused for the
offences committed under any other law along with the offences committed
under the TADA thereby depriving the rights available to the accused
under the ordinary law, is misconceived. (433-F)
C
3.2. Article 14 prohibits discrimination, but allows reasonable
classification based on intelligible differentia, having nexus with the object
sought to be achieved. The object sought to be achieved by introducing
Section 12 is to take care of the offence connected with or incidental. to
terrorist activities,the other offence being connected and inextricably inter- D
twined with the Terrorist Act. (433-F-G]
3.3. Trial under TADA is a departure from the ordinary law. The
persons who are tried for offences specified under the provisions of TADA
are a distinct class of persons and the procedure prescribed for trying them
for the aggravated and incensed nature of offences are under different E
classification distinguishable from the ordinary criminals and procedure.
This distinction and classification of grouping of the accused and the
offences to be tried under TADA are to achieve the meaningful purpose
and object of the Act as reflected from the preamble as well as the
statement of objects and reasons. 1433-H; 434-A]
F
Kartar Singh v. State of Punjab, (1994) 3 SCC 569, relied on.
4. The confessional statement duly recorded under Section 15 of
TADA and Rules framed thereunder would continue to remain admissible
for the offences under any other law which were tried along with TADA
offences under Section 12 of the Act, notwithstanding that the accused was G
acquitted of offences under TADA in the same trial. (434-C-D]
State v. Nalini, (1999] 5 SCC 253, affirmed.
5.1. It cannot be said that the words, "after taking cognizance"
employed in Section 18 of the Act would include any stage of trial including H
A
B
c
D
E
412
SUPREME COURT REPORTS
(2005] I S.C.R.
the stage when the judgment is to be delivered. If it ought to have been
the intention of the legislature they could have said so. The legislature
deliberately uses the words "after taking cognizance of any offence" to
mean that Section 18 would be attracted only at the stage where the
Designated Court takes cognizance of offence i.e., after the investigation
is complete and charge-sheet is filed. There is no ambiguity in the language
used in Section 18. [434-G-H; 435-C]
5.2. The provisions of Section 209 Cr.P.C. to which the appellants
sought to rely are not in pari materia with Section 18. In Section 209
Cr.P.C. the words "after taking cognizance" are absent conspicuously.
Section 18 is a filtered provision which is attracted only at a stage the
Designated Court takes cognizance of offence. [434-H; 435-A]
6. The note of caution given by this Court in Kartar Singh 's case is
eloquently sufficient to caution police officials as well as the Presiding
Officers of the Designated Courts from misusing the Act and to enforce
the Act effectively and in consonance with the legislative intendment which
would mean after application of mind. (435-C, H; 436-A)
Kartar Singh v. State of Punjab, (1994] 3 SCC 569, affirmed.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 526
of 2001.
From the Judgment and Order dated 19.3.2001 of the Designated Court
No. 3 at Ahmedabad in Terrorist Crl. Case No. 2 of 1977.
Manish Singhvi, Saurabh, Ajay and Ashok K. Mahajan for the Appellant
F in Crl. A. No. 526/200 I.
Sushil Kumar, Adolf Mathew, Puneet Rai, Vinay Arora and Sanjay Jain
for the Appellant in Crl.A. No. 545/200 I.
Ms. Asha G. Nair and Ms. Anu Mohla for the Appellant in Crl. A. No.
G 66512001.
H
Yashank Adhyaru, Ms. Hemantika Wahi and Ms. Aruna Gupta for the
Respondent.
The Judgment of the Court was delivered by
1'
-<
..,
..
\
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~
"
1'..
?. KUMAR@ PRAKASH BHUTTO 1·. STA TE OF GUJARAT [SEMA, J ]
4 J 3
H.K. SEMA, J. All these appeals are directed against the judgment and A
order dated 19th March, 200 I passed by the Designated Court No.3 at
Ahmedabad in Terrorist Case No.2 of 1997, Terrorist Case No. 33 of 1994
and Terrorist Case No. 16of1995. The two-Judge bench before whom these
appeals were posted fo~ hearing referred the matters to a three-Judge Bench
by an order dated 24.9.2002. The said Order reads as under:-
"The issue involved concerns the admissibility of a confession in
terms of Section 15 of the Terrorist and Disruptive Activities
(Prevention) Act, 1987 (in short "TADA ACT"). Consequently,
therefore, the other provisions as contained in Sections 12 and 18
B
have to be read in order to assess the legislative intent therein.
C
This Court in State v. Nalini, [1999] 5 SCC 253, in paragraphs
80 and 81 stated the law to be as below:-
"80. Section 12 of TADA enables the Designated Court
to jointly try, at the same trial, any offence under TADA together
D
with any other offence "with which the accused may be charged"
as per the Code of Criminal Procedure, Sub-section (2) thereof
empowers the Designated Court to convict the accused, in such
a trial, of any offence "under any other law" if it is found by
such Designated Court in such trial that the accused is found
guilty of such offence. If the accused is acquitted of the offences
under TADA in such a trial, but convicted of the offence under E
any other law, it does not mean that there was only a trial for
such other offence under any other law.
81. Section 15 of TADA enables the confessional
statement of an accused made to a police officer specified therein F
to become admissible "in the trial of such a person". It means,
if there was a trial of any offence under TADA together with any
other offence under any other law, the admissibility of the
confessional statement would continue to hold good even if the
accused is acquitted under TADA offences."
The view expressed above stands in unison with view expressed G
in paragraphs 408 and 674 and same is noticed as below:- .
"408.As to whether any offence under Section 3 or Section 4 of
TADA is made out in the present case, we will cons.ider at subsequent
stage of the judgment. In view of the decision of this Court in Bilal H
414
A
B
c
D
SUPREME COURT REPORTS
[2005] I S.C.R.
Ahmed Kaloo Case contention of Mr. Natarajan is rather correct.
However, it appears to us that while holding the confession to be
inadmissible in a trial when the accused is acquitted of offences under
Section 3 or Section 4 of TADA, provisions of Section 12 of TADA
were not taken into consideration by this Court in the said judgment.
Section 12 reads as under:
"12. Power of Designated Courts with respect to other
offences.
(I) When trying any offence, a Designated Court may
also try any other offence with which the accused may, under the
Code, be charged at the same trial if the offence is connected
with such other offence.
(2) If, in the course of any trial under this Act of any
offence, it is found that the accused person has committed any
other offence under this Act or any rule made thereunder or
under any other law, the Designated Court may convict such
person of such other offence and pass any sentence authorised
by this Act or such rule or, as the case may be, such other law,
for the punishment thereof."
"674. Having regard to the provisions of Section 12 of the TADA
E
Act, the confession recorded under Section 15 will be admissible in
the trial of a person, co-accused, abettor or conspirator for an offence
under the TADA Act or the rules made thereunder and such other
offence with which such a person miiy be charged at the same trial
under the provisions of the Criminal Procedure Code provided the
offence under the TADA Act or the rules made thereunder is connected
F
with such other offence."
G
H
We are, however, constrained to record our doubt as regards the state
of the law as declared by the 3-Judge Bench of this Court in Na/ini
(supra).
The issue, therefore, is whether the confessional statement would
continue to hold good even if the accused is acquitted under TADA
offe!lces and there is a clear finding that TADA Act has been wrongly
taken recourse to or the confession loses its legal efficacy under the
Act and thus rendering itself to an ordinary confessional statement
before the Police under the general law of the land. Nalini (supra) ,
P. KUMAR@PRAKASH BHUTTO 1·. STATE OF GUJARAT [SEMA, J.]
4 J 5
however, answers this as noticed above, in positive terms but we A
have some doubts pertaining thereto since the entire justice delivery
system is dependent upon the concept of fairness: It is the interest of
justice which has a pre-dominant role in the criminal jurisprudence of
the country The irnll-mark of justice is the requirement of the day and
the need of the hour. Once the Court comes to a definite finding that B
invocation of TADA Act is wholly unjustified or there is utter frivolity
to implicate under TADA, would it be justified that Section 15 would
be made applicable with equal force as in TADA cases to book the
offenders even under the general law of the land. There is thus doubt
as noticed above!!
On the wake of the aforesaid and having regard to the decision
of the Constitution Bench of this Court in Pradip Chandra Parija v.
Pramod Chandra Patnaik, [2002] I SCC 1, we do feel it expedient
to direct the Registry for placing this matter before Hon 'ble the Chief
Justice of India for constituting a 3-Judge Bench for the purpose. It
c
is ordered accordingly."
D
..,.
In turn, the three-Judge Bench by an order dated 9 .3 .2004 has referred
the matters to a five-Judge Bench. The order reads:-
"This matter has been referred to a 3-Judge Bench doubting the
correctness of the decision in State v. Nalini, [ 1999] 5 sec 2~3 as E
to admissibility of a confession in terms of Section 15 of the Terrorist
and Disruptive Activities (Prevention) Act, 1987. It is stated that
there are similar provisions available even under Prevention of Terrorist
Activities Act (POTA). If really the question as posed by the 2-Judge
Bench is to be answered, it could only be done by a Bench of 5
Judges as Nalini's case (supra) has been decided by a bench of three
learned Judges. Therefore, this matter is referred to 5-Judge Bench.
The Registry is directed to place the papers before Hon'ble the Chief
Justice of India for appropriate orders."
This is how the matters have been placed before this Bench.
F
G
The Terrorist and Disruptive Activities (Prevention) Act, 1987
(hereinafter referred to as the Act) is a piece of Legislation containing 30
Sections. Though miniature legislation, the Act tends to be very harsh and
drastic containing the stringent provisions to combat the menace of terrorism
which has taken an endemic form indulging in wanton killings, arson, looting H
416
SUPREME COURT REPORTS
[2005) I S.C.R.
A of properties and other heinous crimes affecting human rights and individual
liberty. The constitutionality of the Act has been concluded by the Constitution
Bench of this Court in Kartar Singh V. State of Punjab, (1994) 3 SCC 569.
The validity of Section 15 of the Act which would be relevant for the present
purpose has been held to be intra-virus the Constitution. In paragraphs 217,
B 218, 220, 222, 236 and 243 it is said:
c
D
E
"217. If the procedural law is oppressive and violates the principle of
just and fair trial offending Article 21 of the Constitution and is
discriminatory violating the equal protection of laws offending Article
14 of the Constitution, then Section 15 of TADA Act is to be struck
down. Therefore, it has become inevitably essential to examine the
classification of 'offenders' and 'offences' so as to enable us in
deciding whether Section 15 is violative of Articles 14 and 21 of the
Constitution.
218. The principle of legislative classification is an accepted principle
whereunder persons may be classified into groups and such groups
may differently be treated if there is a reasonable basis for such
difference or distinction. The rule of differentiation is that in enacting
laws differentiating between different persons or things in different
circumstances which govern one set of persons or objects such iaws
may not necessarily be the same as those governing another set of
persons or objects so that the question of unequal treatment does not
really arise between persons governed by different conditions and
different set of circumstances.
220. Coming to the distinction made in TADA Act grouping the
terrorists and disruptionists as a separate class of offenders from
F
ordinary criminals under the normal laws and the classification of the
offences under TADA Act as aggravated form of crimes
distinguishable from the ordinary crimes have to be tested and
determined as to whether this distinction and classification are
reasonable and valid within the term of Article 14 of the Constitution.
G
In order to consider the question as to the reasonableness of the
distinction and classification, it is necessary to take into account the
objective for such distinction and classification which of course need
not be made with mathematical precision. Suffice, if there is little or
no difference between the persons and the things which have been
grouped together and those left out of the groups, the classification
H
cannot be said to be a reasonable one. In making the classification,
_)...
P. KUMAR@PRAKASH BHUTTO'" STATE OF GUJARAT [SEMA, .I]
417
various factors have to be taken into consideration and examined as A
to whether such a distinction or classification justifies the different
treatment and whether they subserve the object sought to be achieved.
222. As pointed out supra, the persons who are to be tried for offences
specified under the provisions of TADA Act are a distinct class of
persons and the procedure prescribed for trying them for the aggravated B
and incensed nature of offences are under different classification
distinguishable from the ordinary criminals and procedure. This
distinction and classification of grouping of the accused and the
offences to be tried under TADA are to achieve the meaningful purpose
and object of the Act as reflected from the preamble as well as the C
'Statement of Objects and Reasons' abort which we have elaborately
dealt with in the preceding part of this judgment.
236. Keeping the above proposition, we have to decide whether the
provisions of Section 15 of the 1987 Act (TADA) contravene Article
14. True, ifthe classification is shown to be arbitrary and unreasonable D
and without any substantial basis, the law would be contrary to the
equal protection of laws by Article 14.
243. The above decision, in our view, cannot be availed of for striking
down Section 15 of TADA Act because the classification of'offenders'
and 'offences' to be tried by the Designated Court under the TADA E
Act or by the Special Courts under the Act of 1984, are not left to
the arbitrary and uncontrolled discretion of the Central Government
but the Act itself has made a delineated classification of the offenders
as terrorists and disruptionists in the TADA Act and the terrorists
under the Special Courts Act, 1984 as well as the classification of F
offences under both the Acts.
This Court also pointed out in paragraph 259 the procedural safeguards
to be followed by the police officer with regard to the mode of recording the
confession. It is then held in paragraph 260 (SCC p.681) as under:-
"260.For the foregoing discussion, we hold that Section 15 is not G
liable to be struck down since that section does not offend either
Article 14 or Article 21 of the Constitution."
This Court, however, as a matter of abundant caution laid down certain
guidelines, so as to ensure that the confession obtained is not tainted with any H
418
SUPREME COURT REPORTS
(2005] I S.C.R.
A vice and then said in paragraph 263 (SCC p.682) as under:-
B
c
D
E
"263. However, we would like to lay down following guidelines so
as to ensure that the confession obtained in the pre-indictment
interrogation by a police officer not lower in rank than a Superintendent
of Police is not tainted with any vice but is in strict conformity with
the well-recognised and accepted aesthetic principles and fundamental
fairness:
(I) The confession should be recorded in a free atmosphere in the
same language in which the person is examined and as narrated by
him;
(2) The person from whom a confession has been recorded under
Section 15(1) of the Act, should be produced before the Chief
Metropolitan Magistrate or the Chief Judicial Magistrate to whom the
confession is required to be sent under Rule 15(5) along with the
original statement of confession, written or recorded on mechanical
device without unreasonable delay;
(3) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate
should scrupulously record the statement, if any, made by the accused
so produced and get his signature and in case of any complaint of
torture, the person should be directed to be produced for medical
examination before a Medical Officer not lower in rank than of an
Assistant Civil Surgeon;
(4) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973, no police officer below the rank of an Assistant
p
Commissioner of Police in the Metropolitan cities and elsewhere of
a Deputy Superintendent of Police or a police officer of equivalent
rank, should investigate any offence punishable under this Act of
1987.
This is necessary in view of the drastic provisions of this Act.
G
More so when the Prevention of Corruption Act, 1988 under Section
17 and the Immoral Traffic Prevention Act, 1956 under Section 13,
authorise only a police officer of a specified rank to investigate the
offences under those specified Acts.
(5) The police officer if he is seeking the custody of any person for
H
pre-indictment or pre-trial interrogation from the judicial custody,
\.
>I.
P KUMAR@PRAKASH BllUTTO 1·. STATE OF GUJARAT fSEMA. J.]
419
must file an affidavit sworn by him explaining the reason not only for A
such custody but also for the delay, if any, in seeking the police
custody;
(6) In case, the person, taken for interrogation, on receipt of the
statutory warning that he is not bound to make a confession and that
if he does so, the said statement may be used against him as evidence, B
asserts his right to silence, the police officer must respect his right of
assertion without making any comp\tlsion to give a statement of
disclosure;
The Central Government may take note of these guidelines and
incorporate them by appropriate amendments in the Act and the Rules. C
The 1985 Act received the assent of the President on 23rd May and
came into force on 24th May, 1985. The preamble of this Act reads that the
special provisions of this Act were made "for the prevention of, and for
coping with, terrorist and disruptive activities and for matters connected
therewith or incidental thereto".
D
(emphasis supplied)
The Statement - of Objects and Reasons of the Act reads as follows:-
"Prefatory Note - Statement of Objects and Reasons.- Terrorists had E
been indulging in wanton killings, arson, looting of properties and
other heinous crimes mostly in Punjab and Chandigarh. Since the
10th May, 1985, the terrorists have expanded their activities to other
parts of the country, i.e. Delhi, Haryana, Uttar Pradesh and Rajasthan
as a result of which several innocent lives have been lost and many
suffered serious injuries. In planting of explosive devices in trains, F
buses and public places, the object to terrorise, to create fear and
panic in the minds of citizens and to disrupt communal peace and
harmony is clearly discernible. This is a new and overt phase of
terrorism which requires to be taken serious note of and dealt with
effectively and expeditiously. The alarming increase in disruptive G
activities is also a matter of serious concern."
As the Act of 1985 was due to expire on 23rd May 1987, the President
promulgated the Terrorist and Disruptive Activities (Prevention) Ordinance,
1987 (2 of 1987) which came into force from 24th May 1987. The Ordinance
was repealed by the enactment of 1987 (No.28 of 1987) which received the H
420
SUPREME COURT REPORTS
[2005] 1 S.C.R.
A assent of the President on 3rd September 1987. However, the scheme of the
special provisions in the Act of 1985 and the Act of 1987 remains the same.
The scheme of the Act being, for the prevention of, and for coping with,
terrorist and disruptive activities and for matters connected therewith or
incidental thereto.
B
The 1987 Act was further amended by an Amending Act 43 of 1993.
c
D
The Statement of Objects and Reasons to Amending Act are as follows:-
"The Terrorist and Disruptive Activities (Prevention) Act, 1985 was
enacted on 23rd May, 1985 in the background of escalating terrorist
activities in many parts of the country. The Act came into force with
effect from 24th May, 1985 with the stipulation that it would remain
valid for a period of two years with effect from the date of its
commencement as it was hoped at that time that it would be possible
to control, the menace of terrorism in a period of two years.
Unfortunately, terrorist violence has continued unabated, necessitating
tile Government to periodically extend the Act on the due dates in
1987, 1989 and 1991. The life of the Act is now due to expire on the
23rd May, 1993. The views of the State Governments were obtained
while processing these extensions and most of them had recommended
extension of the Act.
E
2.
Terrorism which was initially confined to the States of Punjab,
F
G
3.
Jammu and Kashmir and North East has spread its tentacles to
the States of Uttar Pradesh, Madhya Pradesh, Himachal Pradesh,
Maharashtra, Haryana, Delhi, Gujarat and West Bengal. Apart
from this, the sophisticated weapons, remote control devices,
rocket launchers, professional training and international
involvement have added a new and disturbing dimension to the
problem.
The menace of terrorism has also been a matter of international
concern. Recently, we have entered into an agreement with the
United Kingdom for mutual assistance in the investigation and
prosecution of terrorist crime and the tracing, restraint and
confiscation of the proceeds and instruments of crime and terrorist
funds. This agreement is particularly useful in dealing with
terrorism inspired from abroad.
4.
Keeping in view the above considerations, it is proposed to
H
amplify some of the existing provisions so as to also concretize
,.
P. ~UMAR r;f· PR1\KASll BllUTT01·. STATE OF GUJARAT (5Er-1A. J_J
421 ·
the agreement signed recently with the United Kingdom for A ·
, mutual assistance in investigation and prosecution of terrorists
crime and the tr.icing, restraint and confiscation of the proceeds
and instruments of crime and terrorist funds and to extend the
Act for a further period of two years up to 23rd May, 1995.
5. The present Bill seeks to achieve the ·above nientioned objects." B
. -
.
;
'
~
Thus, this type of extra ordinary laws are made to contain the
extraordinary situation by providing harsh, drastic and stringent provisions,
prescribing special procedure, departing from the procedure prescribed under
the ordinary procedural law for the reasons that the prevalent ordinary
procedural law was found to be inadequate and not sufficiently effective to C
deal with the offenders indulging in terrorist and disruptive activities. The
preambles and statements of objects and reasons as referred to above are
manifestly evident that such extra-ordinary Act was made to deal with extraordinary situation for the prevention of, and for coping with, terrorist and
disruptive activities and for matters connecte.d therewith or incidental thereto. D
'
. The term 'terrorism' has not been defined under the Act. This Court in
Hitendra Vishnu Thakur v, State of Maharashtra, [1994] 4 SCC 602 held in
paragraph 7 (SCC p. 618) as under:-
.
"7. "Terrorism' is one of the manifesiations ofincreas~d lawlessness E
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 do,vO_,vhat ~o-nstitutes
'terrorism'. It may be possible to describe !t as use of violence when F
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 depri~ation 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 G
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 and not only tl1ose
directly assaulted, with a· view to disturb even tempo, peace and
tranquility of the society and create a sense of fear and insecurity. A H
A
B
c
D
E
F
G
422
SUPREME COURT REPORTS
[2005) I S.C.R.
'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 b.;yond 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."
As already noticed, the Act provides harsh and stringent provisions
aimed at to achieve the statement of objects and reasons for the prevention
of, and for coping with, terrorist and disruptive activities and for matters
connected therewith or incidental thereto.
The more stringent the Law, the less is the discretion of the Court.
)..
Stringent laws are made for the purpose to achieve its objectives. This being
:.
the intendment of the legislature the duty of the court is to see that the
intention of the legislature is not frustrated. If there is any doubt or ambiguity
H in the statutes, the rule of purposive construction should be taken recourse to,
P. KUMAR@ PRAKASH BHUTTO v. STA TE OF GUJARAT [SEMA, J.]
423
\ _.
to achieve the objectives. (See Swedish Match AB and Anr. v. Securities and A
Exchange Board, India and Anr., (2004) 7 Scale 158 para 84 at p, 176)
Before we proceed further, we may at this stage, notice a few decisions
of this Court on the subject. In the case of Bilal Ahmed.Kaloo v. State of
A. P., [ 1997] 7 SCC 431 the two-Judge Bench of this Court held in paragraph
B
5 (SCC p.434 ) as under:-
).
"5. While dealing with the offences of which the appellant was
convicted there is no question of looking into the confessional
...
statement attributed to him, much less relying on it since he was
acquitted of all offences under TADA. Any confession made to a c
police officer is inadmissible in evidence as for these offences and
hence it is fairly conceded that the said ban would not wane off in
respect of offences under the Penal Code merely because the trial was
held by the Designated Court for offences under TADA as welL
Hence the case against him would .stand or fall depending on the
other evidence."
D
I
This decision was rendered on 6th August, 1997. On the same day another
--;
decision by the same Bench was rendered in the case of Rambhai Nathabhai
Gadhvi V, State of Gujarat, [1997J 7 sec 744 where it was pointed out in
paragraph 18 (SCC p.751) as under:
"18. It is obvious that power of the Designated Court to charge the E
accused with any offence other than TADA offences can be exercised
only in a trial conducted for any offence under TADA. When trial for
offence under TADA could not have been held by the Designated
Court for want of valid sanction envisaged in Section 20-A(2) the
consequence is that no valid trial could have been held by that court F
into any offence under the Arms Act also. It is clear that a Designated
Court has no independent power to try any other offence, Therefore,
no conviction under Section 25 of the Arms Act is possible on the
materials collected by the Designated Court in the present case."
It will be noticed that in both the judgments provisions of Section 12 G
of the Act have not been noticed, The decision rendered in Bilal Ahmed's
)'
case was followed in Gurprit Singh v. State of Punjab, [2002] I 0 SCC 20 I.
The decision rendered in Bilal Ahmed's case was noticed by a threeJudge Bench of this Court in State v. Nalini, [1999] 5 SCC 253. In Nalini's H
424
SUPREME COURT REPORTS
[20051 I S.C.R.
A case the Bench reconsiJered the decision in Bilal Ahmed's case and overruled
the decision in /li/al Ahmed's case. However, the decisions in Ramblwi 's
case and Gwpnt Singh 's case have not been noticed in Nalini 's case. In view
of the decision in Nulini 's case the decision rendered by a two-Judge Bench
in Rambahi 's and Gurprit Singh's case are per incuriam.
B
The primary question referred to this Bench for determination is, as to
whether the confessional statement duly recorded under Section 15 of TADA
would continue to remain admissible as for the offences under any other law
which were tried along with TADA offences under Section 12 of the Act,
notwithstanding the fact that the accused was acquitted of offences under
C TADA in the said trial.
The questions posed before us for the termination are no more res
integra. In our view, the same have been set at rest by the three-Judge Beric!i
decision rendered in Nalini (supra). The rigours of Sections 12 and 15 were
considered in Nalii1i 's case and rendered a finding in paragraphs 80, 81 and
D 82 (SCC p.304) as under:-
"80. Section 12 of TADA enables the Designated Court to jointly try,
at the same trial, any offence under TADA together with any other
offence "with which the accused may be charged" as per the Code of
Criminal Procedure. Sub-section (2) thereof empowers the Designated
E
Court 'to convict the accused, in such a trial, of any offence "under
any other law" if it is found by such Designated Court in such trial
that the accused is found guilty of such offence. If the accused is
acquitted of the offences under TADA in such a trial, but convicted
of the offence under any other law, it does not mean that there was
F
G
H
only a trial for such other offence under any other law.
81. Section 15 of TADA enables the confessional statement of an
accused made to a police officer specified therein to become admissible
"in the trial of such a person". It means, if there was a trial of any
offence under TADA together with any other offence under any other
law, the admissihility of the cOJ~fessional statement would continue to
hold good even if the accused is acquiued under TADA offences. "
(emphasis supplied)
82. The aforesaid implications of Section 12 vis-a-vis Section 15 of
TADA have not been adverted to in Bilal Ahmed case. Hence the
...
P. KIJ~1AR i\ PRAK,\Sll IJllllTTOY. STATE OF Gl .IAkAT !SEMA, J.]
425
observations therein (at sec p. 434, para 5) that
"while dealing with the offences of which the appellant was
convicted there is no question of looking into the confessional
statement attributed to him, much less relying on it since he was
acquitted of all offences under TADA"
cannot be followed by us. The correct position is that the confessional
statement duly recorded under Section I 5 of TADA would continue to
remain admissible as for the other offences under any other law
which too were tried along with TADA offences, no matter that the
accused was acquitted of offences under TADA in that trial."
(emphasis supplied)
We are in respectful agreement with the findings recorded by a three-Judge
Bench in Nalini 's case.
A
B
c
S.S.M. Quadri, J. in his concurring judgment held in paragraphs 674 D
and 675 at sec p.571 as under:-
"674.