ANIRUDHSINHJI KARANSINHJI JADEJA AND ANR.versusTHE STATE OF GUJARAT

       ANIRUDHSINHJI KARANSINHJI JADEJA AND ANR.                              A
                          v.
                THE STATE OF GUJARAT

                            AUGUST 11, 1995
                                                                              B
      [AM. AHMADI, CJ., B.L. HANSARIA AND S.C. SEN, JJ.]

      Terrorists and Disrnptive Activities (Prevention) Act, 1987:

       S.20A(l)-Commission of an offence under TADA-Approval of Dis-
tlict Supe1intendent of Police-Condition precedent-Discretion vested in him   c
not exercised-State Govt. granting permission-Non-application of
mind-Proceedings under TADA quashed-Bail granted on certain condi-
tions.

       One J was murdered by four persons. Thereafter they went to the D
Sarpanch (appellant no. 1) and sought refuge. He declined to provide
shelter but agreed to keep the weapons. One of the murderers and appel-
lant no. 2 packed one country-made gun with cartridge and two knives in
a bundle and concealed the bundle by digging a pit on the ground of a
small room in the field belonging to appellant no. 1. Thereafter the
murderers left the field. Police arrested and started criminal proceedings E
not only against the murderers, but also against the appellants. All of them
were sent to judicial custody. The appellants had made an application for
bail, which was rejected by the Designated court.

      Allowing the appeal, this Court                                         F
      HELD : 1.1. The jurisdiction under Section 20A(l) of the Terrorists
a~d Disruptive Activities (Prevention) Act, 1987 (TADA) to grant approval
for recording of any information about the commission of an offence under
TADA, has been vested in the District Superintendent of Police (DSP). In G
the instant case, a specific point has been taken in the Special Leave
Petition that prior approval, as required by section 20A(l) of TADA, was
not taken. This section was introduced to safeguard the citizens from
vexatious prosecution under TADA. The Designated Court had failed to
appreciate that the DSP had not given prior approval and the case of the
appellants under TADA was, therefore, nonest. [642-C-E)                   H
                                    637
A
    638                   SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.

            1.2. The Deputy Director-General of Police and the Additional Direc-
    tor-General of Police also sent FAX Messages to the Chief Secretary on
    18th March, 1995, requesting him to grant the prayer of the DSP and
                                                                                      -
    permit him to proceed under TADA. On 18th March, 1995, the Additional
    Chief Secretary, Home Department, gave sanction/consent .to apply the
    provisions of TADA; and the District Superintendent of Police was in-
B
    formed accordingly. There is nothing in the Act to suggest that the Addi-
    tional Chief Secretary has to grant permission to District Police
    Superintendent for proceeding under TADA. This is a case of power
    conferred upon one authority being really exercised by another. If a
    statutory authority has been vested with jurisdiction, he has to exercise it
C   according fo its own discretion. If the discretion is exercised under the
    direction or in compliance with some_ higher authority's instruction, then
    it will be a case of failure to exercise discretion altogether. In other words,
    the discretion vested in the DSP in this case by Section 20A(1) was not
    exercised by the DSP at all. It is a clear case of exercise of power on the
D   basis of external dictation. That the dictation came on the prayer of the
    DSP will not make any difference to the principle. The DSP did not exercise
    the jurisdiction to the recording of information under TADA in exercise
    of his discretion. [645-C-D; F-G;,646-F-G]

          13. Even if it be accepted that as an additional safeguard against
E   arbitrary exercise of the dra~tic provisions, the State Government had
    provided by administrativ,e instructions an additional safeguard
    whereunder the DSP was required to obtain the sanction/consent of the
    State Government, in the present case the same was given by the State
    Government without proper,I application of mind. The sanction/consent was
    given by the Government ~erely on the basis of the FAX message dated
F
    173.1995 on the DSP, though there is on record a FAX message of Deputy
    Director.General of Police also, which is dated 183.1995. [646-H; 647-A-B]

        - ·i.4. Before agreeing to use of harsh provisions of TADA against ihe
    appellants, the Government ~ught to have taken some steps to satisfy itself
G whether what has been stated by the DSP was borne out by the records,
    which apparently had not been called for in the present case, as the
    sanction/consent was given post haste on 18.3.1995, i.e. the :very next day
  . of the message of the DSP. It seems the DSP emphasised the political
    angle. The dispute or motive stated was that the Darbars were annoyed
H because they were refused loan and not because of any political rivalry.
                                1
                         AK JADEJA v. STATE                             639

There is also reference to statements of accused after arrest which would      A
ordinarily be inadmissible in evidence. Reference to avoid incident of the
past aoes not provide any nexus. The State Government gave the sanction
without even discussing the matter with the investigating officer and
without assessing the situation independently. All these show lack of
proper and due application of mind by the State Government while giving        B
sanction/consent. [647-C-E]

       1.5. The entire proceeding against the appellants under TADA is
vitiated and-the same is, therefore, quashed. It would however be open to
the respondents to proceed against the appellants even under the TADA
in accordance with law. (647-F]                                                C

      2. Insofar as other offence under Section 25(1) (b) of the Arms Act
is concerned, no contention has been advanced to deny bail to the appel-
lants. The two appellants shall be released on bail on each of them
furnishing a bond of Rs. 10,000 with one surety in the like amount. The D
appellants shall observe the following conditions also after release on bail:

      (i) They shall make themselves available for interrogation by police
as and when required.

      (ii) They shall not directly or indirectly make any inducement, threat   E
or promise to any person acquainted with the facts of the case so as to
dissuade them from disclosing .such facts to the Court or to police.

      (iii) They shall not leave the State of Gujarat without the permission
of the Designated Court. (647-G-H; 648-A-B]                                    F
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
847of1995.

      From the Judgment and Order dated 18.4.95 of the Designated Court        G
at Rajkot, in Crl. Misc. A.No. 301 of 1995.

     R.K. Jain, N. Nanavati, H.S. Raichura, M/s. H.A. Raichura, D. Rawal
and Y. Adhyaru for the Appellants in Crl. A. No. 847/95.

      D.A. Dave and Ms. Hemantika Wahi for the Respondents.                    H
    640                      SUPREME COURT REPORTS (1995) SUPP. 2S.C.R.

A             The Judgment of the Court was delivered by

           HANSARIA, J. The two appellants are in jail behtg accused of having
    committed offences, inter alia under Sections 3 and 5 of the Terrorists and
    Disruptive Activities (Prevention) Act, 1987 (for short 'the TADA'). Their
B   prayer is to release them on bail, which has been denied by the Designated
    Court. In support of this plea, a large number of points were raised before
    us in course of arguments. It is not necessary to go into all these questions
    as, according to us, the appeal deserves to be allowed on the_ sole ground
    of wrong invocation of TADA in the case of the appellants.

c          2. To bring home the above, we may note the prosecution case in
    short, which is that :

                "..... on March 15, 1995 one Jayantilal Mohanlal Vadodaria who
                is a son of elder brother Mohanlal Kalabhai of the complainant,
D               was murdered by some assailants near Ashapur Dam at the dis-
                tance of 3 K.M. from Gondal town. So on receiving this informa-
                tion, the complaint went to the scene of offence where a dead body
                of his nephew Jayantilal was lying. One Vespa-scooter of the
                deceased was also lying there. It was found that there were injury
E               marks by fire on the body of the deceased. There was a cartridge
                of red colour which was used, was lying near the body. It was
                further stated in the complaint that deceased Jayantilal was travell-
                ing on his scooter for going to his vadi from his house at 4.00 p.m.
                as usual and he was passing through the way of Ashapura Dam.
                His vadi is situated on the road of Kotda Sangani Village".
F
          3. It has been alleged that deceased Jayantila~ aged 32 years, was a
   resident of Gondal and was a leading member of the Patel community.
   Previously, he was a membe.r of the Gondal Nagar Palika and also Director
    of Gondal Nagrik Sahakari Bank. The post-mortem revealed that the
G . deceased had received gun-shot injuries and also injuries caused l:>y knives.
   The murderers had come in a white Ambassador Car No. GIG-375 and
   had fired twice at the deceased and had caused injuries by sharp weapons.
   After killing the deceased, the murderers absconded. The car was ultimate-
    ly recovered from a place within Jamkandorna Police Station, and all the
H four accused were arrested there on 16.3.1995 at 2115 hours.
          I
                 AK.JADEJA v. STATE[HANSARIA,J.]                      641

      4. The further allegation is that the four persons, after committing A
the murder, went to Anirudhsinh Karansinh Jadeja, Sarpanch of village
Mota Umvada and a resident of that village and sought refuge.
Anirudhsinh·was in his field at that time (5.30 P.M.) and Digubha Jadeja
was present there. Anirudhsinh declined to provide shelter but agreed to
keep the weapons. One country-made gun with cartridges and two knives B
were packed in a bundle and Vishubha and Digubha had concealed the
bundle by digging a pit on the ground of a small room in the field belonging
to Anirudhsinh. After hiding the weapons, Vishubha along with other
alleged murderers left the field and went away by the white Ambassador
car in which they had come. Police arrested and started criminal proceed- C
ings not only against the alleged murderers but also against Anirudhsinh
Jadeja and Digubha Jadeja, the appellants herein.

       5. Anirudhsinh (appellant No. 1) was produced before the Executive
Magistrate, Gondal, on 18.3.1995 on the allegation that one country-made
gun and cartridges were recovered from his field and a case was registered D
against him under Section 25(1)(b) of the Arms Act bearing Crime
Registration No. 28/95. The allegation against Digubha, appellant was that
he had abetted in secreting the weapon. They were arrested and produced
before the Executive Magistrate who granted five days' remand. On a
prayer made on behalf of the appellants on 23.3.1995, the Executive E
Magistrate directed the police authorities not to ill-treat the appellants. On
24th March, 1995 the Executive Magistrate sent all the accused persons,
ltlcluding the appellants, to hospital where they were kept till 27th March,
1995. Thereafter, an order was passed on 27th March, 1995 by which all
the accused were remanded to judicial custody. On behalf of the State, the F
order of the Magistrate refusing police remand was challenged before the
Sessions Judge. On 28th March, 1995 the appellants had made an applica-
tion for bail, which was rejected by the Designated Court on 18th April,
1995. Hence this appeal to this Court by special leave.

   6. The first point to be decided is about the legality of invocation of G
TADA. Its Section 20-;A lays down :-

         "Cognizance of offence.

           20A. (1) Notwithstanding anything contained in the Code, no H
    642                   SUPREME COURT REPORTS (1995) SUPP. 2 S.C.R.

A           information about the commission of an offence under this Act
            shall be recorded by the police without the prior approval of the
            District Superintendent of Police.

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

          7. Therefore, condition precedent for recording an information about
    the commission of an offence under TADA is the approval of the District ·
    Superintendent of Police and cognizance of any offence under TADA
C   cannot be taken by any court 'without the previous sanction of the Inspec-
    tor-General of Police, or, as the case may be, the Commissioner of Police'.
    The provision of the statute is clear that the District Superintendent of
    Police under sub-section (1) can grant approval/sanction for recording of
    any information about commission of an offence under TADA The juris-
D   diction under Section 20A(l) to grant approval for recording of any
    information about the commission of an offence under TADA, has been
    vested in the District Superintendent of Police.

           8. In the instant case, a specific point has been taken in the Special
    Leave. Petition that prior approval, as required by section 20A(l) of
E   TADA, was not taken. This section was introduced to safeguard the
    citizens from vexatious prosecution under TADA The Designated Court
    had faiied to apprec~ate that the DSP had not given prior approval and the
    case of the appellants under TADA was, therefore, nonest.

F       9. This groun~ appears to be of substance. The DSP did not exercise
  the jurisdiction vested in him under Section 20A(l). On the contrary, he
  abdicated his jurisdiction and referred the matter to the Additional Chief
  Secretary, Home Department, on 17th March, 1995, requesting for permis-
  sion to invoke the provisions of Sections 3 and 5 of TADA by sending a
G report fo~ this purpose as under :- .

            "In the matter of Gondal City Police Station l.C.R. NO. 34/1995
            under Section 302, 120-B of the Indian Penal Code and Indian
            Arms Act Section 25(1)(c) of the Indian Arms.Act the facts are
            that the victim, i.e., the deceased J ayarttibai Mohanbhai Vadodaria,
H           aged 32, resident of Yoginagar, Gondal was an active member of
        AK.JADEJA v. STATE[HANSARIA,J.)                         643

B.J.P. and was a leader of Patel community. In past, he was            A
member of Gondal Municipality and was also a director in Gondal
Nagrik Sahakari Bank Ltd., which is managed by B.J.P.

    On 15.3.1995 when the First Chief Minister of B.J.P. Govern-
ment took oath and installation ceremony was being performed at
Gandhinagar, on that very day in the evening at 14- 30, Jayantibhai    B
Vadodaria was killed on Ashapura Dam by firing shots and by
sharp weapons. The complaint of this murder is lodged by Shri
Nanalal Kaiabhai Patel, the uncle of deceased and on the strength
of that complaint, on making investigation, it is revealed that the
murderers had come in white coloured Ambassador car no. GRG            C
375 and had fired twice on him and had also caused injuries by
sharp weapons and killed J ayantibhai and then they have
absconded. In this case during the investigation, the names of
following persons are disclosed :

1.   Dinubha alias Dineshsinh Kiritsinh Jadeja, Resident of Gon-       D
     dal.

2.   Harshyamsinh Jalamsinh Jadeja, Dismissed Constable of
     SRP, resident of Sindhavadar, Tal: Gondal.

3.   Veshubha Abhesinh Jadeja, (SRP Constable) resident of             E
     Gondal.

4.   Jitendrasinh Chandrasinh Chudasam, resident of Virpur (Jet-
     pur).

During the course of investigation, on 16.3.1995 at 21- 15 all the     F
four accused are arrested from the limits of Jam-kandorna Police
Station along with the car used in the offence.

    All the four accused declare during investigation that they
reside in Gondal and when accused No. 2 and 3 was in need of
loan from Gondal Nagrik Sahakari Bank and had contacted the            G
deceased who was director of the said Bank at that time, the
deceased had told to the applicant, i.e., accused No. 2 and 3 herein
that 'Go Go, this Bank is not meant for Darbars; for getting loans,
only Patels may come to me and no Darbar can get loan'. On this
talk, there was quarrel. This quarrel had taken place before about     H
    644                SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.
                                     I



A         10 to 12 days and since then the said four Darbars had decided to
          kill J ayantibhai, else, the strength of Patels will be increasing,
          therefore, since last 10 days, they were planning to kill Jayantibhai
          and on 15.3.1995 on finding an opportunity, they have killed him.
          In past also the murder of MLA of Gondal. Popatbhai Sorathia
          by the member of Darbar community. Therefore, on 1=J.appening of
B         the present incident, the members of Patel community are feared
          and frightened and nobody dared to come to Police Station. Later
          on Jayantibhai Dhol a leader of Patel community, informed us on
          telephone at Rajkot and told about the incident and requested to
          make some arrangement and1 to direct the local police to reach at
c         the scene of offence. Therefore, we informed local police and after
          the local police reached on the scene of offence, the family mem-
          bers of the deceased could went there.

              All the accused who have committed the murder belong to
          Darbar community and by committing murder of Patel leader, they
D         have created enmity between the two community. In Gondal City
          in past also the Darbar community have committed the murder of
          Patel leader and now also Jayantibhai is murdered mercilessly by
          firing shots and knife blows and they have spread the atmosphere
          of terror and fear. Therefore, the harmony between the two com-
E         munity is very seriously and adversely affected. Because of this
          incident, the people in that area had started running and moving
          here and there and the hawkers doing business in hand-crafts were
          also frightened and ran away. Tlie police force in large number
          was put on patrolling and numerous vehicles and police officers
          were put to patrolling and only thereafter public could dare to
F
          come out from home.

              From the above facts, it is clear that the accused have com-
          mitted offence under Sections 3 and 5 of the Terrorist and Dis-
          ruptive Activities (Prevention) Act, 1987 by keeping illegal
G         weapons and by keeping ammunition and therewith murdering the
          citizen, they have done the act of terrorist and offence under
          Section 5 of the said Act is committed.

             C.I.D., LB. of Gujarat State has also reported that due to this
H         incident and as a reaction of this incident, the enmity prevailing in
                  AK. JADFJA v. STATE [HANSARIA, J.]                     645

        Saurashtra between Darbar and Patel community may intensify and          A
        opposite party, i.e., Patels may also indulge in such activities.

        Considering the situation which has arise permission may please
        be given to invoke the provisions of Sections 3 and 5 of tbe TADA
        in this matter.
                                                                                 B
                                                    Sd/- in English
                                           District Police Superintendent
                                           Rajkot Rural, Camp at Gondal".

       10. The Deputy Director-General of Police and the Additional              C
Director-General of Police also sent FAX Messages to the Chief Secretary
on 18th March, 1995, requesting him to grant the prayer of the DSP and
permit him to proceed under TADA. On 18th March, 1995, the Additional
Chief Secretary, Home Department, gave sanction/consent to apply
provisions of TADA; and the District Superintendent of Police, Rajkot
Rural, was informed accordingly. There is nothing in the Act to suggest          D
that the Additional Chief Secretary has to grant permission to the District
Police Superintendent for proceeding under TADA.

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

      12. Reference may be made in this connection to Commissioner of
Police v. Gordhandas Blianji, (1952} SCR 135, in which the action of
Commissioner of Police in cancelling the permission granted to the respon-
dent for construction of cinema in Greater Bombay at the behest of the           H
    646                   SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.

A State Government was not upheld, as the concerned rules had conferred
    this power on the Commissioner, because of which it was stated that the
    Commissioner was bound to bear his own independent and ~nfettered
    judgment. and decide the matter for himself, instead of forwarding an order
    which another authority had purported to pass.
B        13. It has been stated by Wade and Forsyth in 'Administrative Law',
    7th Edition at pages 358 and 359 under the heading 'SURRENDER,
    ABDICATION, DICTATION' and sub-heading "Power in the wrong
    hands" as below :-

c           "Closely akin to delegation, and scarcely distinguishable from it in
            some cases, is any arrangement by which a power conferred upon
            one authority is in substance exercised by another. The proper
            authority may share its power with some one else, or may allow
            some one else to dictate to it by declining to act without their
            consent or by submitting to their Wishes or instructions. The effect
D
            then is that the discretion conferred by Parliament is exercised, at
            least in part, by the y.rrong authority, and the resulting decision is
            ultra vires and void. So strict are the courts in applying this
            principle that they condemn some administrative arrangements
            which must seem quite natural and proper to those who make
E           them..... ".

                "Ministers and their departments have several times fallen foul
            of the same rule, no doubt equally to their surprise .....".

          14. The present was thus a clear case of exercise of power on the
F
    basis of external dictation. That the dictation came on the prayer of the
    DSP will not make any difference to the principle. The DSP did not
    exercise the jurisdiction vested in him by the statute and did not grant
    approval to the recording of information under TADA in exercise of his
    discretion.
G
          15. The aforesaid is however not all. Even if it be accepted that as
    an additional safeguard against arbitrary exercise of the drastic provisions,
    the State Government had provided by administrative instructions an ad-
    ditional safeguard where under the DSP was rf!quired to obtain the .sanc-
H   tion/consent of the State Government, we are of the view that in the present
                 AK JADE.TA v. STATE [HANSARIA, J.]                      647

case the same was given by the State Government without proper applica-         A
tion of mind. We have taken this view because the sanction/consent was
given by the Government merely on the basis of the FAX message dated
17.3.1995 of the DSP. The reason for our saying so is that though there is
on record a FAX message of Deputy Director General of Police also,
which is dated 18.3.1995, the sanction/consent order has mentioned above        B
the FAX message of the DSP only. Now, no doubt the message of the DSP
is quite exhaustive, as would appear from that message which has been
quoted above in full, we are inclined to think that before agreeing to use
of liarsh provisions of TADA against the appellants, the Government ought
to have taken some steps to satisfy itself whether what had been stated by      C
the DSP was brone out by the records, which apparently had not been
called for in the present case, as the sanction/consent was given post haste
on 18.3.1995, i.e., the very next day of the message of the DSP. It seems
the DSP emphasised the political angle in the first two paragraphs of his
message. The dispute or motive stated was that the Darbars were annoyed
because they were refused loan and not because of any political revalry. In     D
the third paragraph there is reference to statements of accused after
arrested which would ordinarily be inadmissible in evidence. Reference to
avoid incident of the past does not provide any nexus. The State Govern-
ment gave the sanction without even discussing the matter with the inves-
tigating officer and without assessing the situation independently. All these   E
show lack of proper and due application of mind by the State Government
while giving sanction/consent.

      16. For the aforesaid twin reasons we stated that the entire proceed-
ing against the appellants under TADA is vitiated and the same is, there-
                                                                                F
fore, quashed. It would however be open to the respondents to proceed
against the appellants even under the TADA in accordance with law.

       17. Insofar as-other offence is one under Section 25(1)(b) of the
Arms Act is concerned, no contention has been advanced to deny bail to
the appellants. We, therefore, order the release of the two appellants on G
bail on each of them furnishing a bond of Rs. 10,000 with one surety in the
like amount. The appellants shall observe the following conditions also
after release on bail :

      (1) They shall make themselves available for interrogation by police H
    648                   SUPREME COURT REPORTS (1995) SUPP. 2 S.C.R.

A as and when required.
                                                                                  ,,   '




          (2) They shall not directly or indirectly make any inducement, threat



B
    or promise to any person acquainted with the facts of the case so as to
    dissuade them from disclosing such facts to the court or to police.

          (3) They shall not leave the State of Gujarat without the permission
                                                                                  -
    for the Designated Court.

           18. The appeal is allowed accordingly.

    G.N.                                                      Appeal Allowed.




                                                                                   "