# ST A TE OF WEST BENGAL AND ANR v. MOHAMMAD KHALID AND ORS. ETC. ETC

- **Citation:** [1994] Supp. 6 S.C.R. 16
- **Court:** Supreme Court of India
- **Decided:** 1994-11-24
- **Bench:** S. Mohan, M.K. Mukherjee
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/st-a-te-of-west-bengal-and-anr-v-mohammad-khalid-and-ors-etc-etc-12540
- **Pages:** 43

## Headnote

Constitution of India-Art. 226-Terrorist and Disruptive Activities
(Prevention) Act, 1987-Section 20 A(2) -Sanction to prosecute-Validity
challenged-Limitations of power of High Court-High Court in writ
jurisdiction can interfere only in extreme r;ases-Debatable area-It is not
amenable to writ jurisdiction-Procedure prescribed under TADA must be
followed including challenging order of Designated Court u/s 19-High
Court not to perform laboured exercise of scrutinising materials-When
order of sanction, on face of it, shows that sanctioning authority perused
police papers-High Court had to necessarily accept these averments on
their face value.
Constitution of India-Art. 226-Criminal Procedure Code, 1973Section 190-Terrorist and Disruptive Activities (Prevention) Act, 19870rder taking cognizance-Not a reasoned order-Whether order liable to
be quashed-Held, No-Whether court taking cognizance can only look at
police report-Held, No.
Terrorist and Disruptive Activities (Prevention) Act, 1987--Sectfons 3
& 4-Preparation and possession of bombs for self defenc~-Whether
amount to an offence under TADA-Held, Yes.
These criminal appeals are directed against the judgment and
order of the High Court. quashing the orders of sanction and taking
cognizance of the offences-Writ Petitions were filed in the High Court
challenging the validity of sanction and taking cognizance of the cases
against each of the respondents by the Designated Court under the
Terrorist and Disruptive Activities (Prevention) Act, 1987.
In March, 1993, an explosion occurred in Calcutta in which 69
persons died. Accused were prosecuted on obtaining sanction to
prosecute u/ss. 3 and 5 of the Explosive Substances Act from the State
Government. Sanction u/s 20A(2) of TADA from the Police
Commissioner was also obtained. During investigation it appeared that
for the last S or 6 years accused had been manufacturing bombs. The
16
~-
. "'
,
'
>'
•\
~ '
STATE v. MOHAMMAD KHALID
17
sanctioning authority mentioned that the intention of the accused was
to strike terror on people and that the accused had con~pired and
prepared to commit disruptive activities.
A writ petition under Article 226 of the Constitution was filed by
the accused challenging legality of the order taking cognizance and also
validity of the sanction obtained.
The High Court by its impugned judgment held that TADA has
been wrongly applied in the case and the order of sanction and further
taking cognizance by the Designated Court was not proper, legal and
valid and the same was quashed.
The State of West Bengal has filed these criminal appeals, alleging
that the High Court gravely erred in quashing the order taking
cognizance, by entering the area which is beyond the scope of
jurisdiction under Article 226 of the Constitution of India; that the
High Court cannot examine the merits of the allegations; that in fact,
what has been done by the High Court was a laboured exercise of
scrutinising the material placed before the Designated Court, which is
not permissible, and that it has conducted a virtual pre-trial at a premature stage.
It is submitted that under Article 226 the High Court is not entitled
to go into the validity or otherwise of the order granting sanction for
prosecution. The order of prosecution is required to be proved by
evidence in the course of trial. The order of sanction, on the face of it,
shows that the sanctioning authority had gone through all the reports,
the statement of the witnesses, confessions etc. The High Court has to
accept these averments on their face value.
The High Court has held in the impugned judgment that from the
act of preparation and storage of bombs intention to commit offences
under TADA cannot be inferred as the motive was to defend the
Muslims. It is submitted by the appellants that this finding is shocking
and contrary to the well established principles of self-defence. Then
again, the preparation and keeping of bombs are illegal. This would be
a terrorist Act u/s 3 (

## Text

_Characters 0–39,638 of 97,390. This is a partial read: ask again with offset=39638 for what follows._

A
B
c
D
E
F
G
H
ST A TE OF WEST BENGAL AND ANR.
v.
MOHAMMAD KHALID AND ORS. ETC. ETC.
NOVEMBER 24, 1994
[S. MOHAN AND M.K. MUKHERJEE, JJ.]
Constitution of India-Art. 226-Terrorist and Disruptive Activities
(Prevention) Act, 1987-Section 20 A(2) -Sanction to prosecute-Validity
challenged-Limitations of power of High Court-High Court in writ
jurisdiction can interfere only in extreme r;ases-Debatable area-It is not
amenable to writ jurisdiction-Procedure prescribed under TADA must be
followed including challenging order of Designated Court u/s 19-High
Court not to perform laboured exercise of scrutinising materials-When
order of sanction, on face of it, shows that sanctioning authority perused
police papers-High Court had to necessarily accept these averments on
their face value.
Constitution of India-Art. 226-Criminal Procedure Code, 1973Section 190-Terrorist and Disruptive Activities (Prevention) Act, 19870rder taking cognizance-Not a reasoned order-Whether order liable to
be quashed-Held, No-Whether court taking cognizance can only look at
police report-Held, No.
Terrorist and Disruptive Activities (Prevention) Act, 1987--Sectfons 3
& 4-Preparation and possession of bombs for self defenc~-Whether
amount to an offence under TADA-Held, Yes.
These criminal appeals are directed against the judgment and
order of the High Court. quashing the orders of sanction and taking
cognizance of the offences-Writ Petitions were filed in the High Court
challenging the validity of sanction and taking cognizance of the cases
against each of the respondents by the Designated Court under the
Terrorist and Disruptive Activities (Prevention) Act, 1987.
In March, 1993, an explosion occurred in Calcutta in which 69
persons died. Accused were prosecuted on obtaining sanction to
prosecute u/ss. 3 and 5 of the Explosive Substances Act from the State
Government. Sanction u/s 20A(2) of TADA from the Police
Commissioner was also obtained. During investigation it appeared that
for the last S or 6 years accused had been manufacturing bombs. The
16
~-
. "'
,
'
>'
•\
~ '
STATE v. MOHAMMAD KHALID
17
sanctioning authority mentioned that the intention of the accused was
to strike terror on people and that the accused had con~pired and
prepared to commit disruptive activities.
A writ petition under Article 226 of the Constitution was filed by
the accused challenging legality of the order taking cognizance and also
validity of the sanction obtained.
The High Court by its impugned judgment held that TADA has
been wrongly applied in the case and the order of sanction and further
taking cognizance by the Designated Court was not proper, legal and
valid and the same was quashed.
The State of West Bengal has filed these criminal appeals, alleging
that the High Court gravely erred in quashing the order taking
cognizance, by entering the area which is beyond the scope of
jurisdiction under Article 226 of the Constitution of India; that the
High Court cannot examine the merits of the allegations; that in fact,
what has been done by the High Court was a laboured exercise of
scrutinising the material placed before the Designated Court, which is
not permissible, and that it has conducted a virtual pre-trial at a premature stage.
It is submitted that under Article 226 the High Court is not entitled
to go into the validity or otherwise of the order granting sanction for
prosecution. The order of prosecution is required to be proved by
evidence in the course of trial. The order of sanction, on the face of it,
shows that the sanctioning authority had gone through all the reports,
the statement of the witnesses, confessions etc. The High Court has to
accept these averments on their face value.
The High Court has held in the impugned judgment that from the
act of preparation and storage of bombs intention to commit offences
under TADA cannot be inferred as the motive was to defend the
Muslims. It is submitted by the appellants that this finding is shocking
and contrary to the well established principles of self-defence. Then
again, the preparation and keeping of bombs are illegal. This would be
a terrorist Act u/s 3 (1).
The appellants further contended that the finding of the High
Court that there are no materials in support of allegation of conspiracy
u/s 3 (3) proceeds on misappreciation of the material and is contrary to
A
B
c
D
E
F
G
the averments contained in the charge-sheet.
H
18
SUPREME COURT REPORTS
[1994] SUPP. 6 S.C.R
A
Again, it is alleged that the High Court has clearly gone wrong in
holding that there must be a break down of law enforcing machinery.
That would be a condition precedent for prosecuting the accused for
offences under TADA.
The appellants submitted that the High Court had gone on a totally
· B
incorrect premises when it quashed the order taking cognizance on the
ground that it is not a reasoned order; that no reason need be stated;
that the High Court erred in holding that the Court taking cognizance
can only look at Police Report and nothing else; and that the report u/s
173 (2) Cr. P.C. was accompanied by all the documents and statements
and all of them can be looked into.
c
D
The respondents submitted that a report of the Police Constitutes
the facts found as a result of investigation and it must be held
distinctive. It was further contended that in this case, the sanction was
never produced before the Court; on the contrary, the Court took
cognizance automatically.
It was also submitted that it is incorrect to contend that the High
Court has appreciated the evidence, and in order to determine whether
the bar has been removed, it can examine.
The respondents further submitted that if the bombs are intended
E
for self defence there is no mens area and consequently, there is no
offence under TADA. It is then urged that the order according sanction
must give reasons.
F
G
Allowing the appeal, this Court
HELD: 1.1 The High· Court in writ petition under article 226 can
interfere only in extreme cases where charges ex facie do not constitute
offence under TADA. If there is a debatabJe area it is not amenable to
writ jurisdiction under Article 226 of the Constitution of India and the
gamut of the procedure prescribed under TADA must be followed
including challenging the order ·of . the Designated Court u/s 19 of
TADA. The High Court cannot perform a laboured exercise of
scrutinising the materials. [32G, 34C]
State of Maharashtra v. Abdul Hamid Haji Mohammad, (1994] 2 SCC
664; State of Haryana and Ors. v. Bhajan Lal and Ors., [1992) Supp. 1
SCC 335; State of Bihar and Anr. v. P.P. Sharma and Anr., (1992) Supp. 1
H
SCC 222; Maninder Kaur v. Rajinder Singh and Ori, (1992) Supp 2 SCC
r
'
STATE v. MOHAMMAD KHALID
19
25; Radhey Shyam Khemka and Anr., v. State of Bihar, [1993) 3 SCC 54 A
and State of Bihar v. Murad Ali Khan and Ors., [1988) 4 SCC 655, i:-elied
on.
1.2. Merely because of the failure of the Court to mention that it
had perused the order of sanction while taking cognizance cannot lead
to the conclusion that the existence of the order of sanction could be B
doubted. The finding that there was no order of sanction is not correct
factually. [45 H, 46 A]
1.3. The order of sanction, on the face of it, shows that the
sanctioning authority had perused the Police Papers. The High Court
had to necessarily accept these averments on their face value. The C
correctness or otherwise of the statement could be gone into only at the
time of the trial. The approach of the High Court under Article 226 is
clearly wrong. The submission of respondent that in order to find out
whether a valid sanction existed, the High Court has appreciated the
findings, is not acceptable. {47B, 48 C, 49 G)
State of Bihar and Anr. v. P.P. Sharma and Anr., [1992) Supp 1 SCC
222 and Gokulchand Dwarkadas Morarka v. The King, AIR (1948) 35
P.C. 82, relied on.
Ram Kumar v. State of Haryana, [1987) 2 SCC 476, distinguished.
1.4. Question of leading evidence by the prosecution in relation to
conspiracy would arise only during the stage of trial. [51 D]
Wal/i Mohammadv. The King, AIR (1949) PC 103, distinguished.
D
E
Alvin Krulswitch v. United State of America, 93 Law Ed. 790, relied F
on.
1.5. The very preparation of Bombs and possessions of bombs
would tantamount to terrorising the people. If proved, it will be a
terrorist act and sub-sections (1) and (3) of section 3 of the Terrorist
and Disruptive Activities (Prevention) Act, may also be attracted. The G
existence of 26 live bombs is a clear indication of conspiracy. [53 G)
Ajay Aggarwal v. Union of India, [1993) 3 SCC 609, relied on.
1.6. In the instant case the materials are enough to bring the case
u/s 3 (1) of TADA. Of course, in order to establish this, evidence will H
20
SUPREME COURT REPORTS
[1994] SUPP. 6 S.C.R
A
have to be led in during the trial. If that be so, the question of
mentioning in the sanction order that the ordinary law has broken
down, does not arise. [SS CJ
Kartar Singh v. State of Punjab, JT [1994] 2 SC 423 and Hitender
Vishnu Thakur and Ors., v. State of Maharashtra and Ors., [1994) 4 SCC
B
602, relied on.
1.7. The approach of the High Court in quashing the order of
taking cognizance on the ground that it is not a reasoned order, is
clearly against the decision of the Supreme Court in Stree Atyachar
Virodhi Parishad v. Dilip Nathumal Chordia, [1989) 1 SCC 71S. The
c
confession statements of the two accused were very much there before
the court. [SS D, S6 BJ
1.8. The other finding that what can be looked at is oniy the Police
Report, cannot be sustained. [S6 CJ
D
Satya Narayan Musadi and Ors., v. State of Bihar, (1980) 3 SCC 1S2,
E
relied on.
Uma Charan v. State of MP and Anr., [1982) 1 SCR 3S3,
distinguished.
1.9. In the instant case, the High Court has clearly exceeded its
powers under Article 226 of the Constitution in quashing the orders of
sanction and taking of cognizance. Impugned judgment of High Court
is set aside. (S8 E, F]
'
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 327
F
ofl 994 Etc. Etc.
From the Judgment and Order dated 13.4.94 of the Calcutta High Court
in C.O. No. 9121 (W) of 1993.
K.T.S. Tulsi, Additional Solicitor General, B.C. Ray, U.R. Lalit, S.C.
G
Ghosh, Ranjan Ray and B.B. Twakley f~r the Appellants.
H
Ram Jethmalani, Dipankar, N.N. Goswami, N.R. Choudhary, Somnath
Mukherjee, Rajesh Kr. Gupta, Rajesh, Ashok Srivastava, P. Panneshwaran
and S.A. Syed for the Respondents.
The Judgment of the Court was delivered by
.. ~
STATE v. MOHAMMAD KHALID [MOHAN, J.]
21
MOHAN, J. Criminal Appeal No. 327of1994 is directed against the A
judgment and order dated 13th April, 1994 of the High Court of Calcutta in
C.O. No. 9121 (W) of 1993.
·
Criminal Appeal No. 328 of 1994 is directed against the judgment and
order dated 13th April, 1994 of the High Court of Calcutta in C.O. No.
8378 (W) of 1993.
B
Criminal Appeal No. 329of1994 is directed against the judgment and
order dated 13th April, 1994 of the High Court of Calcutta in C.O. No.
8378 (W) of 1993 .
" All these cases arise out of writ petitions filed in the High Court of C
Calcutta challenging the validity of sanction and taking cognizance of the
cases against each of the respondents by the Designated Court under the
Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter
referred to as 'TADA'). A further challenge in the writ petition was also
made to the 'vires' of TADA. The orders of sanction and taking cognizance
were quashed. The challenge to the Act was not gone into since the same D
was pending at the relevant time before this Court.
To highlight the issue involved, it is enough if we advert to the facts in
Criminal Appeal No. 328of1994 since C.O. No. 8377 (W) of 1993, against
which this appeal has been preferred, is the main case. The same decision
was applied to Criminal Appeal Nos. 327 and 329 of 1994. The short facts E
are as under:
On the evening of March 16, 1993, an explosion occurred at or near
Premises No. 267, B.B. Ganguly Street, Calcutta. 69 persons died, 5 of
them died as a result of direct blast and 46 others were injured. The said
premises and some other buildings adjoining it collapsed and/or were badly F
damaged.
A compliant was lodged on March 17, 1993 regarding this incident by
Mr. B.K. Chattopadhaya, Sub-Inspector attached to Bowbazar Police
Station. This complaint was treated as First Information Report. On that
basis, case No. 84 dated 17.3.1993 was registered in the Police Station G
under Sections 120B/436/326/307/302 Indian Penal Code and Sections 3
and 5 of the Explosive Substances Act. Having regard to the gravity of the
offence, the Commissioner of Police, Calcutta passed an order that the case
shall be investigated by a team of high-ranking police officials. ln the
course of investigation witnesses were examined, various seizures were
made and confessions made by two of the accused, namely, Pannalal H
22
SUPREME COURT REPORTS
(1994) SUPP. 6 S.C.R
A
Jaysora and Mohammed Gulzar were recorded by a learned Metropolitan
Magistrate on April 7 and May 19, 1993 respectively. During investigations
it appeared that materials had transpired for prosecuting the accused under
Sections 3 and 4 of TADA. On 3rd of May, 1993, information to this effect
was given to the learned Chief Metropolitan Magistrate, Calcutta. The
learned Magistrate made a record of this fact and observed that the
B
investigating officer might proceed to investigate offences under TADA.
Upon completion of investigation, the police obtained sanction to
prosecute under Sections 3 and 5 of the Explosive Substances Act from the
State Government. Sanction under Section 20A (2) of TADA from the
Police Commissioner was also obtained. The charge-sheet was submitted
C
on 14th June, 1993, well within 90 days as is spoken to under Section 167
(2) (a) (i) of the Code of Criminal Procedure (hereinafter referred to as the
'Code').
·
The sanction to prosecute under Sections 3 and 5 of the Explosive
Substances Act and the sanction under Section 20A(2) were obtained on
D
1 Ith of June, 1993. While granting. sanction under Section 20A(2) of
TADA it was mentioned that the records were placed before the sanctioning
authority for examination and perusal. It appeared that for the last 5/6 years
accused Pannalal Jaysoara had been manufacturing bombs in the 'khas
khas' room on the first floor of 267, B.B. Ganguly Street, Calcutta as and
when required by accused Mohammed Rashid Khan, first respondent in
E
Criminal Appeal No. 328 of 1994. Accused Jaysoara was introduced to
other accused, namely, Mohammed Abdul Aziz, first respondent in
Criminal Appeal No. 329 of 1994 and Lala alias Parvej Khan. Death of 69
persons, serious injuries to 46 persons and complete destruction of two-
·storeyed building and partial collapse of other two and damage to five more
buildings were caused by the accused by an explosion caused by bombs and
F
huge quantities of extremely dangerous nitro-glycerine based explosives
which experts have opined to be dangerous to life and property. The ·
sanctioning authority mentioned inter alia that the intention of the accused
was to strike terror on the people and/or to strike terror on a particular
section-of the people and/or to adversely affect the harmony amongst the
Hindus and the Muslims. It was also mentioned the accused had conspired
G
and prepared to commit disruptive activities. In the charge-sheet all the
necessary ingredients under Sections 3(i) and 4 of TADA had been
mentioned.
The first respondent, Mohammed Rashid Khan moved a writ petition
under Article 226 of the Constitution of India making inter alia the
H
following prayers: -
·,
1~
STATE v. MOHAMMAD KHALID [MOHAN, J.]
23
That the cognizance taken by learned Chief Metropolitan Magistrate, A
Calcutta, Respondent No. 7, in TADA Case No. l of 1993 arising out of
Section 'H' (Bowbazar Police Station) Case No. 84 dated 17th March, 1993
and all subsequent proceedings thereto are illegal, void and inoperative in
law;
A writ in the nature of certiorari and/or an order of direction in the like B
nature commanding the respondents to transmit the records relating to
TADA Case pending before the said respondent to this Court;
A writ in the nature of prohibition and/or an order of direction in the
like nature prohibiting the respondents and/or their agents and/or their
subordinate from proceeding any further with the TADA case;
C
A writ in the nature of mandamus to respondents to forbear from
applying the provisions of TADA against him and from taking any action
or step thereunder and to release the petitioner from custody forthwith.
A declaration was also prayed for that TADA is violative of the D
Constitution and is liable to the struck down. But the High Court by its
impugned judgment held that TADA has been wrongly applied in the case
and the orders of sanction and further taking c~gnizance by the Designated
Court on 14th June, 1993 was not proper, legal and valid and the same was
quashed and set aside.
E
Aggrieved by the impugned judgment, the State of West Bengal has
preferred these criminal appeals.
Mr. K.T.S. Tulsi, learned Additional Solicitor General in attacking the
judgment argues as under:
The High Court gravely erred in quashing the order, taking cognizance, F
by entering the area which is beyond the scope of jurisdiction under Article
226 of the Constitution of India. The jurisdiction is confined to cases where
the allegations before the Designated Court ex facie cannot constitute an
offence under TADA. The High Court cannot examine the merits of the
allegations. In fact, what has been done by the High Court is a laboured G
exercise of scrutinising the material placed before the Designated Court. In
doing so, it entered into a debatable area and began the process of
appreciation of evidence admissibility of confession or pre-judgment on
trial or determine the guilt or innocence of the accused. It has made an
analysis of the materials to determine the truth or otherwise of the
allegations. It has conducted a virtual pre-trial at a pre-mature stage. On that H
24
SUPREME COURT REPORTS
[1994) SUPP. 6 S.C.R
A
basis, it had come to a conclusion that there is no evidence in support of
these allegations. The law is, the High Court must assume each of the
allegations made in the charge-sheet to be factually correct and examine the
ingredients of the offence without adding or substracting anything
therefrom.
B
In support of this submission, learned counsel relies on State of
Maharashtra v. Abdul Hamid Haji Mohammed, [1994] 2 SCC 664 wherein
this Court has held, the High Court under Article 226 has no jurisdiction to
enter into a debatable area whether the direct accusation made in
conjunction with the attendant circumstances, if proved to be true, is likely
to result in conviction for an offence under TADA. The moment there is a
C
debatable area, in the case, it is not amenable to the writ jurisdiction.
· In State of Haryana v. Bhajan Lal, [1992] Supp (I) 335 it has been
categorically laid down that the allegations made in the FIR or the
complaint taken on their face value and accepted in its entirety constitute an
. offence. The High Court is not justified in quashing the criminal
D
proceedings. In State of Bihar v. P.P. Sharma, [1992] Supp (1) 222 this
Court had ruled that writ petition should not be entertained against chargesheet while exercising jurisdiction. If the matter is considered on merits in
the quise of primafacie evidence, it would amount to a pre-trial. To the
same effect are the following rulings:
E
I. State of Maharashtra v. Abdul Hamid, [1994] (2) SCC 664 Para 7.
F
G
H
2. State of Haryana v. BhajanLal, [1992] Supp. (I) SCC 335.
3. State of Bihar v. P.P. Sharma, [1992] Supp. (I) SCC 222, para 68 at
page 269.
25.
4. Maninder Kaur v. Rajinder Singh and Others, [1992] Supp. (2) SCC
· 5. Radhey Shyam Khemka v. State of Bihar, [1993] 3 SCC 54.
6. State of Bihar v. Murad Ali, [1988] 4 SCC 655 at 662.
The next submission is, under Article 226 the High Court is not entitled
to go into the validity or otherwise of the order granting sanction for
prosecution. The order of sanction is required to be proved by evidence in
the course of trial. All objections with regard to validity or. otherwise could
be raised there since witnesses are summoned to prove the order and they
..
STATE v. MOHAMMAD KHALID [MOHAN, J.J
25
being subject to cross-examination. In this case, the order of sanction, on A
the face of it, shows that the sanctioning authority had gone through all the
reports, the recorded statements of witnesses, confessions and seizure list
and the opinion of experts. The High Court has to accept these averments
on their face value. The correctness or otherwise of the statement is only
subject to proof during a trial. Therefore, the High Court is wrong in
holding, there was non-application of mind. In the case of P.P. Sharma B
(supra) it has been held, if all the facts of the case are not mentioned in the
sanction order the same does not become invalid as the prosecution can
prove these facts in the course of trial.
The finding of the High Court that the affidavit of Mr. Sujit Kumar
Sanyal is not proper because he was neither an investigating officer nor an C
informant is contrary to record. It was brought to the notice of the High
Court through the affidavit of the Commissioner of Police that the Special
Investigations Team had been set up on March 18, 1993 which was headed
by Mr. Sujit Kumar Sanyal. Unfortunately, the affidavit of Commissioner
of Police was not taken into account. Therefore, the contrary findings are D
wrong. The High Court wrongly excluded from consideration the effect of
confession of the two accused for the reasons that the confession could not
have been considered by the Designated Court as the same remained in
sealed cover. In this regard, it is submitted that charge-sheet specifically
refers to the confession recorded by the Magistrate under Section 164 of the
Code.
E
The High Court has held in the impugned judgment that from the act of
preparation and storage of bombs intention to commit offences under
TADA cannot be inferred as the motive was to defend the Muslims. This
finding is shocking and is contrary to the well-established principles of selfF
defence. Then again, the preparation and keeping of bombs are illegal. It
tantamounts to terrorising the people. Therefore, this would be a terrorist
act under Section 3(1 ). If the Act itself is illegal it cannot be justified on the
plea of self-defence. The question is whether a right of private defence
exists under Indian Penal Code or any other law. Further, Section 3(3) is
also attracted.
G
This Court in Morarji v. State of Gujarat, [1980] 2 SCC 218 at
paragraph 30 has dealt with the right of self-defence.
The right of self-defence commences not before a reasonable
apprehension arises in the mind of the accused.
H
A
B
c
D
E
F
26
SUPREME COURT REPORTS
[1994] SUPP. 6 S.C.R
The finding of the High Court that there are no materials in support of
allegation of conspiracy under Section 3 (3) proceeds on misappreciation of
the material and is contrary to the averments contained in the charge-sheet.
It is not necessary to bring home the charge of conspiracy to establish the
time and the place of conspiracy or even the actual words of
communication. It is no! necessary to prove who entered into conspiracy
and the nature of conspiracy. The existence of conspiracy can be interfered
from the conduct of the various accused prior to and subsequent to the
conspiracy. Existence of explosive materials is enough to prove the
conspiracy when there was preparation for a large number of bombs. In
support of this submission, reliance is placed on Ajay Aggarwal v. Union of
India, [ 1993] 3 SCC 609 at page 617, dealing with the law relating to
conspiracy. On the basis of this citation it is submitted, even if the
explosion has not taken place, the very possession of bomb would amount
to conspiracy.
Then again, the High Court has clearly gone wrong in holding that
there must be a break-down of law enforcing machinery. That would be a
condition precedent for prosecuting the accused for offences under TADA.
This finding is contrary to the decision of this Court in Kartar Singh v.
State of Pury·ab, [1994] 3 SCC 569. In that ruling the legislative intention to
bring TADA has been clearly spelt out. In paragraph 145 of the ruling what
has been observed is the ordinary procedural law was found to be
inadequate by the Legislature and, therefore, the object of Legislature in
bringing in TADA may not be defeated or nullified. The interpretation of
the High Court, if adopted, would clearly make the TADA unworkable.
Sections 3 and 4 of TADA are intended for the whole of India. It has
nothing to do with the break-down of law enforcing machinery.
The High Court had gone on a totally incorrect premises when it
quashed the order taking cognizance on the ground that it is not a reasoned
order. It is submitted that no reasons need be stated. Therefore, this
approach of the High Court is clearly contrary to the following rulings of
this Court:
(1) Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia,
G
[1989} 1 sec 715 para 14.
(2) R.S. Nayakv. A.R. Antu/ay, [1966] 2 SCC 716 at para 43.
(3) State of Bihar v. Ramesh Singh, [1977] 4 SCC 39 at para 4.
(4) Niranjan Singh Karam Singh v. Jitendra Bhimraj Bijjaya, [1990] 4
H sec 76 at para 7.
"' ...
)
STATE v. MOHAMMAD KHALID [MOHAN, J.]
27
Equally, the High Court erred in holding that the Court taking A
cognizance can only look at police report and nothing else. This is clearly
contrary to the ruling of this Court in Satya Narain Musodi v. State of
Bihar, [1980) 3 SCC 152 para 9 and IO. The report under Section l 73(2) is
accompanied by all the document~ and statements. All of them can be
looked into. In support of the above submissions, it is urged that the
judgment of the High Court is perverse and is liable to be set aside.
B
Mr. U.R. Lalit, learned senior counsel appearing for the appellants
submits that a charge-sheet in criminal law is a mere narration. It is a
manifestation of evidence collected. No charge-sheet is ever construed in a
restricted way, as has been done by the High Court. In this case the High
Court has grievously erred.
C
When a police report is filed cognizance is almost automatic. In fact, in
A.C. Aggarwal, Sub-Divisional Magistrate, Delhi v. Master Ram Kali, AIR
(1968) SC 1 at page 5 this Court held when Section 190(l)(b) of the Code
uses the words "may take cognizance" it means, must take cognizance and
that it has no discretion in the matter. In law, no reasons need be given for D
taking cognizance under Section 193.
Mr. Ram Jethmalani, learned senior counsel, appearing on behalf of the
respondents submits that a report of the police constitutes the facts found as
a result of investigation. Under Section 173 of the Code the Court is called
upon to take action. The report in the accompanying documents though E
complementary must be held distinctive. In law, the report should contain
the minimum. Should the report fail to bring out the ingredients of an
offence the same cannot be supplemented by other materials. Thus, the
submission is, the report is relevant for the issue of process.
The impugned order is in two parts :
l. Taking cognizance; and
2. issuing a process.
F
The theory of curable irregularity cannot be applied except in G
revisional or appellate stage. Section 170 (5) makes a clear distinction
between the report and documents along with the report. Section 190(l)(b)
states : "such facts constitute an offence." Section 190 of the Code is
controlled by Section 20(A)(l) and (2) of TADA. Under such
circumstances, the Court will have to examine whether the bar has been
removed. In support of this submission, reliance is placed on Gokulchand H
28
SUPREME COURT REPORTS
[1994] SUPP. 6 S.C.R
A
Dwarkadas Morarka v. The King, AIR (1948) PC 82 at page 83. Though
that case arose under Defence of India Rules, the ratio squarely applies.
A cognizance which is barred cannot be overcome by a sanction. The
Court must look at the validity of sanction. In this case, the sanction was
never produced before the Court. On the contrary, the Court took
B
cognizance automatically. The specific case of these respondents before the
High Court was, there was no such sanction. The burden that the sanction
was granted in relation to the facts constituting the offence has not been
discharged. While taking cognizance perusal of sanction is not mentioned.
This order is conclusive.
C
The Commissioner of Police in his affidavit does not say that he
handed it over to the Designated Court and that the Court returned to the
Police as there was no infrastructure for safe custody. On the basis of the
affidavit it is submitted that no sanction was made. In criminal justice the
quantum of evidence at the time of issuing the process must be the same as
the time of taking cognizance. Relying on Vadila/ Panchal v. Dattatraya
D
Dulaji Ghadigaonkar, AIR (1960) SC 1113 it is urged that under Section
202 of the Code a plea of self-defence could be raised and the decision
invited at the time of issuing process.
E
F
As regards the exercise of inherent jurisdiction in quashing under
Section 482 of the Code it could be exercised in three cases:
(i) When there is a legal bar to prosecution.
(ii) The FIR and the complaint do not make out the offence.
(iii) When there is no legal evidence.
The High Court can interfere during investigation
(i) not under the inherent powers but under the Constitution of India;
(ii) after cognizance before charges are framed.
G
This can be done both under the inherent powers and Article 226 of the
Constitution of India:
(a) on account of the existence of legal bar or where there is no
material for issuing process or action;
H
(b) there is not enough/no legal evidence;
.. -
-
STATE v. MOHAMMAD KHALID [MOHAN, J.]
29
(c) after charges are framed when there is legal evidence to sustain the A
charges.
It is incorrect to contend that the High Court has appreciated the
evidence. In order to detennine whether the bar has been removed, it can
examine the same. As a matter of fact, this Court in State of Maharashtra v.
Abdul Hamid Haji Mohammed, [1994] 2 SCC 664 at page 669 has held B
mens rea is necessary in deciding the abatement. Therefore, primarily the
Court has to decide whether an order of sanction exists or not.
The sanction in this case is void for the following reasons:
(a) The order of sanction states that the Commissioner of Police C
"accords sanction for prosecution." Legally speaking, it should be for
proceeding under TADA and not for prosecution. It has been so laid down
in Ram Kumar v. State of Haryana, [1987] 2 SCC 476 at 478.
(b) There is non-application of mind. In Gokulchand Dwarkadas
Morarka (supra) it is held that "there must be application of mind" which D
ratio has been accepted by this Court in Major Som Nath v. Union of India,
AIR (1971) SC 1910.
Sections 3 and 4 of TADA contemplate various kinds of offences.
Section 3 ( 1) speaks of different types of offences. Therefore, there must be
application of mind as to what offences are alleged.
E
(c) The sanction order says "and/or". This is bad in law. It has been so
laid down in Major Som Nath (supra). The sanctioning authority must
confonn to the same standard as the court and decide conspiracy ag~inst
each accused. The leading case on this aspect is Alvin Krulewitch v. United
States of America, 93 Law. Ed. 790 at 795. Relying on this ruling it is F
submitted the Court must insist on an admissible evidence against each
· accused. To the same effect is Walli Mohammed v. The King, AIR (1949)
PC 103 at 104.
If the bombs are intended for self-defence there is no mens rea.
Consequently, there is no offence under TADA. Support is derived for this G
proposition from Niranjan Singh Karam Singh v. Jitendra Bhimraj Bijjaya,
[1990] 4 sec 76 at pages 87-88. Where preparations are made to meet a
communal frenzy, the respondents cannot be prosecuted under TADA.
Upholding the validity of the TADA this Court in Kartar Singh v. State
of Punjab, JT (1994) 2 SC 423 held that the Act falls under Entry I of List H
A
B
c
D
E
F
G
30
SUPREME COURT REPORTS
(1994] SUPP. 6 S.C.R
I, i.e., Defence of India. That being so, the offences under Sections 3 and 4
must relate to sovereignty and integrity of India. In Hitendra Vishnu Thakur
(supra) this Court in dealing with the definition of "terrorism" held: unless
the Act complained of falls strictly within the letter and spirit of Section
3(1) of TADA and is committed with'-'the inte"ntion as envisaged by the
Section the accused caimot be tried and convicted. Hence, it is submitted
the order of sanction must be examined'in tliis'liight'.
1 The Designated Court
must record the motive as postulated under Section 3 (1). If, therefore,
dominant intention is self-defence, the matter will have to be viewed only
from that angle. In Sanjay Dutt v. The State Through C.B.l, Bombay,
(1994) 3 Scale 1004 this Court held that the accused could prove in relation
to offences which do not require mens rea, an innocent possession will not
bring the offence under Section 5. Therefore, it is submitted in cases where
mens rea is required like Sections 3 and 4, it must relate to sovereignty and
integrity of India. Hence, the Court will have to determine the dominant
intention as laid down in Mathuri and others v. State of Punjab, [1964] 5
SCR 916. In this case, the dominant intention is self-defence. Therefore, it
will not constitute an offence under TADA. In the charge-sheet/police
report, the ingredients of neither Sections 3 nor 4 are mentioned. The
documents, if taken into consideration, refer' to two confessions. They
would only point to self-defence.
Mr. Dipankar Ghosh, learned senior counsel, appearing on behalf of
Rashid Khan, first respondent, in Criminal Appeal No. 328 of 1994,
adopting the argument of Mr. Ram Jethmalani would urge that there is no
valid sanction under Section 3 (1) in this case.
·
It is the duty of the sanctioning a~thority to apply its mind. In Indu
Bhusan Chatterjee v. The State, AIR (1965) Calcutta 430 it has been so laid
down. The order according sanction must give reasons. The necessity for
giving reasons has been laid down in Uma Charan v. State of Madhya
Pradesh and Anr., [1982] 1 SCR 353 at 358 and again in Siemens Engg. v.
Union of India, AIR (1976) SC 1785 at page 1789. With regard to motive
_and intention, the learned counsel cites Black's Law Dictionary.
Therefore, in this case, the intention was not to terrorise. On the
contrary, it is only by way of self-defence. Therefore, no exception could
be taken to the impugned judgment.
Having regard to the arguments the following points arise for our
determination:
1. The scope of the jurisdiction of the High Court under Article 226 to
H
interfere with:
·
STATE
v. MOHAMMAD KHALID [MOHAN, J.]
31
(a) according sanction; and
(b) taking cognizance.
2. Whether the order of sanction is bad in law for:
(a) non-application of mind;
(b) that it does not give reasons;
(c) that there is no mention that there is a break-down of law
enforcement machinery;
( d) it does not speak of conspiracy.
Section 20A of TADA with regard to taking cognizance of offence
postulates under sub-section (2), that no court can take cognizance of any
offence under this Act without the previous sanction of the InspectorGeneral of Police, or as the case may be, the Commissioner of Police.
Such a provision relating to sanction is not new under criminal
jurispurdence. Section 132 of the Code provides for sanction. This Section
A
B
c
D
is a bar to the prosecution of Police Officers under Sections 129, 130 or
131. The object is to protect responsible public servants against the
institution of possible vexatious and ma/a fide criminal proceedings for
offences alleged to be committed by them while they are acting or E
purported to act as such in the discharge of their official duty.
Section 197 contains a similar sanction. The object of the Section is to
provide for two things, namely,
(1) to protect government servants against institution of vexatious F
proceedings, and
(2) to secure the well-considered opinion of a superior authority before
a prosecution is lodged against them.
Similar provisions are found in other enactments, for example, G
Prevention of Corruption Act, 1947.
Similarly, when Section 20A(2) of TADA makes sanction necessary
for taking cognizance - is only to prevent abuse of power.by authorities
concerned. It requires to be noted that this provision of Section 20A came
to be inserted by Act 43of1993. Then, the question is as to the meaning of H
32
SUPREME COURT REPORTS
[1994] SUPP. 6 S.C.R
A
taking cognizance. Section 190 of the Code talks of cognizance of offences
by Magistrates. This expression has not been defined in the Code. In its
broad and literal sense, it means taking notice of an offence. This would
include the intention of initiating judicial proceedings against the offender
in respect of that offence or taking steps to see whether there is any basis
for initiating judicial proceedings or for other purposes. The word
B
"cognizance" indicates the point when a Magistrate or a Judge first takes
judicial notice of an offence. It is entirely a different thing from initiation of ·
proceedings; rather it is the condition precedent to the initiation of
proceedings by the Magistrate or the Judge. Cognizance is taken of cases
and not of persons.
C
Cognizance is defined in Wharton's Law Lexicon 14th Edition at page
209. It reads:
"Cognizance (Judicial), knowledge upon which a judge is
bound to act without having it proved in evidence; as the
public statutes of the realm, the ancient history of the realm,
D
the order and course of proceedings in Parliament, the
privileges of the House of Commons, the existence of war
with a foreign state, the several seals of the King, the
Supreme Court and its jurisdiction, and many other things. A
judge is not bound to take cognizance of current events,
however notorious, nor of the law of other countries."
E
It has, thus, reference to the hearing and determination of the case in
connection with an offence. By the impugned judgment of the High Court
has quashed the orders · of sanction and the Designated Court taking
cognizance in the matter.
F
Before we go into the merits it is desirable to determine the limitations
G
H
of power of the High Court. under Article 226 in .this Court. In the State of
Mahrashtra v. Abdul Hamid Haji Mohammed, [1994] 2 SCC 664 after
holding that the High Court in writ petition under Article 226 can interfere
only in extreme cases where charges ex facie do not constitute offence
under TADA it was held in paragraph 7 at pages 669-70 as under:
"The first question is : Whether the High Court was
empowered in the present case to invoke its jurisdiction
under Article 226 of the Constitution to examine the
correctness of the view taken by the Designated Court and to
· quash the prosecution of the respondent under the TADA
Act? Shri Jethmalani contended, placing reliance on the
>
.. '
~ ..
1STATE v. MOHAMMAD KHALID [MOHAN, J.]
33
decisions in R.P. Kapur v. State of Punjab, (1960] 3 SCR A
388 and State of Haryana v. Bhajan Lal, (1992] Supp. I SCC
335 that in the facts of this case, the High Court had such a
jurisdiction since there is no accusation against the
respondent in the charge-sheet filed in the Designated Court
which, if believed, must result in his conviction for an
offence punishable under TADA Act. We are not impressed B
by this argument of Shri Jethmalani.