BALBIR SINGHversusSTATE OF HARYANA

                                                                              A
                             BALBIR SINGH
                                     v.
                        STATE OF HARYANA

                           JANUARY 20, 1987
                                                                              B
              [A.P. SEN AND S. NATARAJAN, JJ.]

       Terrorist and Disruptive Activities (Prevention) Act, 1985, ss.3
 and 4---Conviction under-Prosecution evidence lacking in credibi-
 lity-Conviction set aside~Investigation of cases under the Act to be
 not only thorough but also of a high Order.
                                                                              c
        A crowd of about 1500 persons had gathered near the railway line
 in the village Siwah, District Kamal on the monrlng or 2.9.85 in
 response to a call given by the Bhartiya Kisan Union for a Rail Koko
 Ahhiyan. To safeguard the railway line and to maintain law and order
 the authorities posted a large contingent or police. Since the demon·        D
 strators became violent and attempted to cause damage to the railway
 line, the police force resorted to lathi charge four or five times during
 the day and in addition fired tear-gas and even resorted to shooting.

        The appellant, it is alleged, came at about 8 or 8.30 p.m. to the
. place where lathi charge and shooting had taken place, addressed the        E
  demonstrators and incited them to violence. According to the prosecu·
  lion, P. Ws. 1 and 2, who were on intelligence duty, carefuUy listened to
  the speech and on the next monrlng P. W .1 presented a report at he
  Police Station. Thereupon a case was registered against the appellant
  under s.4 or the Terrorists and Disruptive Activities (Prevention) Act,
  1985 and after investigation he was charge-sheeted. The Designated          F
  Court under the Act accepted the prosecution evidence and found the
  appellant guilty and convicted him under s.4 of the Act.

       Allowing the appeal by the appellant, this Court,

       HELD: 1. The Judge of the designated court was not justified in G
holding the prosecution case proved beyond reasonable doubt and find·
ing the appellant guilty under s.4 of the Act and convicting him accord·
ingly. The prosecution evidence is not only lacking 'in credibility but also
suffei;s from numerous infirmities. It is far from satisfactory to justify
the conviction of the appellant under s.4. The conviction and sentence
awarded to the appellant are therefore set aside.                            H


                                   1095
     1096                  SUPREME COURT REPORTS            [ 1987] I S.C.R.

            2. Section 16 of the Act provides for an appeal against a judgment
     rendered hy a designated court to the Suprerne Court alone and to no
     other court. Consequently, this appeal constitutes the first appeal as
     well as the final appeal. Such being the case, the Suprerne Court has to
     necessarily scrutinise the evidence in its entirety and re-appraise the
     testirnony of witnesses to determine its evidentiary value. [J099G-H]
fl
           3.1. P.Ws.l and 2 were not on security duty at that place but
     were only there to subrnit intelligence reports. When a lathi charge had
     been rnade even at 4.30 p.rn. it is inconceivable that the entire police
     force would have left the place in the evening and gone away elsewhere.
     Therefore, this unnatural version is put forward to cover up the lacuna
     for not exarnining any police officer of a higher rank regarding the
c    inOarnrnatory speech alleged to have been rnade by the appellant at
     about 8.30 p.rn. on that day. [JJOOE-F]

            3.2 The prosecution could have certainly examined sorne inde-
     pendent witnesses to prove what the appellant had spoken on that night.
D    Surely, it cannot be said that am'Ong the 1500 or 2000 persons present
     there, no one would have corne forward to give evidence about what the
     appellant spoke on that night. No explanatiOn has been offered as to
     why no independent witness has been exarnined. In fact P.Ws.l and 2
     have not even stated that they tried to find out the names of any of the
     people assernbled there or rnade any effort to note down their names so
E    that they can later be surnrnoned to appear as witnesses if a case was to
     be filed against the appellant. [UOOG-H; JJOJA]

           3.3 The appellant was a stranger to P. Ws. I and 2 and hence.they
     could not have known who he was and what was his occupation. P.Ws.l
     and 2 had not rnade any enquiries to find out who the aprellant was and
F    where he was residing. The strange version given by P.W.l is that
     before the appellant began his speech he introduced hirnself to the
     dernonstrators by giving out his narne, address and ocrupation. The
     staternent, apart frorn its artificiality is not corroborated even by
     P. W .2. Another discrepancy noticed is that while P. W.1 has stated that
     the appellant addressed the gathering frorn the Chaubra with a rnicro-
c;   phone in his hand, P. W.2 has stated that the appellant stood in the
     rnidst of the dernostrators and addressed thern. Moreover P. W.2 rnakes
     no reference to the appellant having any rnicrophone. [llOJA-C] '           )
           3.4 The report Exhibit P.A. is said to have been prepared on the
     basis of rough notes prepared by P. W.1, but the 'rough notes' is not
II   forthcorning and has not been rnarked in evidence and is said to have
             BALBIR SINGH v. STATE OF HARYANA [NATARAJAN. J.]          1097

A     been destroyed. Since the rough notes constitute the first recorded A
      entry of the speech it is an important document and in its absence the
      fair report cannot be given unreserved acceptance. Even in the matter
      of the preparation of the report, one would except P. W.2 holding a
      higher rank than P. W. I to have prepared it. Not only has P. W.2 not
      prepared any report but his own admission is that he did not sign or
...   even initial the rough notes or the fair report Exhibit P.A. [IHID-F]  B

            [The Court observed that it is highly regrettable that the
      authorities concerned should have launched a prosecution under the
      Act in a manner which can be easily termed as cavalier. The Act
      though intended to effectively deal with the terrorists and disrup-
      tionists contains drastic provisions for punishing them. Furthermore,
      against any judgment, sentence or order rendered under the Act, an
      appeal would lie, directly to the Supreme Court and not to the High
      Court. Therefore, the investigation of the case under the Act has not
      only to be thorough but also of a high order.]

           CRIMINAL APPELLATE JURISDICTION: Criminal Appeal                   D
      No. 222 Of 1986

           From the Judgment and Order dated l l.3. 1986 of the Sessions
      Judge, Kamal in Misc. Sessions Case (D) No. 1072 of 1985

           Harbans Lal and G. K. Bansal for the Appellant.                    E

           V.C. Mahajan andC.V. Sobba Rao for the Respondent.

           The Judgment of the Court was delivered by

            NATARAJAN, J. While allowing this appeal and setting aside the    F
      conviction of the appellant Balbir Singh under Section 4 of the Ter-
      rorist and Disruptive Activities (Prevention) Act, 1985 (in short the
      'Act') by our order dated 30.10.86 we had stated that the reasons for
      our judgment will follow. We now proceed to give the reasons for our
      judgment.

             The appellant who holds the degrees of M.A. and B.T. was
      originally a Lieutenant in the Armed Forces. On account of some men-
      tal ailment he was discharged from the Army. Thereafter he joined the
      Haryana Education Department and was appointed as a Lecturer in
      the Government Higher Secondary School at Siwah. After about 7
      years of service in that School he was transferred to the Government    H
    1008                  SUPREME COURT REPORTS            (1987] 1 S.C.R.

A   Senior Secondary School at Sanauli Khurd. He, however, continued to
    reside at Siwah since he could not get accommodation at Sanauli
    Khurd.

          The circumstances under which the appellant has come to be
    convicted under Section 4 of the Act are to be found in the evidence
B   of two prosecution witnesses viz. P.W.l Jagdish Chander, a Police
    Constable and P.W.2, Gian Chand, a Head Constable. One other
    witness Ramji Lal (P.W.3), an Assistant Sub-Inspector of Police is
    also a prosecution witness but since he speaks only about the filing of
    the charge-sheet his evidence is not very material.

c         The evidence of P. Ws. 1and2 is to the following effect. Pursuant
    to a call given by the Bhartiya Kisan Union for a Rail Roko Abhiyan
    on 2.9.85 a crowd of about 1500 persons had gathered on the forenoon
    of that day at a place near the raiway line in the village Siwah, Tehsil
    Panipat, district Kamal. To safeguard the railway line and to maintain
    the law and order, the authorities had posted a large contingent of
D   police at the place of gathering of the demonstrators. In spite of the
    presence of the police force the demonstrators became violent and at-
    tempted to cause damage to the railway line and also indulged in
    throwing brickbats at the police force. To control the situation the
    police party had to resort to lathi charge on four or five occasions and
    also to firing tear-gas shells. At one point of time, as the violence did
E   not abate the police had to resort to shooting also. One of the demon-
    strators died on account of gun shot in juries and some others sustained
    injuries due to the lathi charge.




                                                                                r-·
          The appellant, it is stated, came at about 8 or 8.30 P.M. to the
    place where the lathi charge and shooting had taken place and addres-
F   sed the demonstrators and incited them to violence. In his inflammatory
    speech the appellant is said to have condemned the actions of the
    Central Government and the State Government in trying to appease
    the rebel elements and extremists of Punjab by sacrificing the interests
    and welfare of the people of Haryana and further stated that if the
    people of Haryana want to protect their rights they should also resort
G   to the ways and methods adopted by the Pun jab extremists and that for
    his part he was prepared to lead their struggle since he had an eight·
    chamber revolver and that he had on earlier occasion attempted to
    kill Ch. Bhajan Lal, Chief Minister of Haryana and hence the demons-
    trators may lend him their cooperation so that the Government can be
    forced to safeguard the interests of the people of Haryana.
H
            BALBIR SINGH v. STATE OF HARYANA [NATARAJAN, J.]           1099

          P. Ws. 1 and 2, who were on intelligence duty, carefully listened
    to the speech and on the next morning P. W. I presented a report           A
    (Exhibit P.A.) at the Police Station at Nissing. Thereupon a case was
    registered against the appellant under Section 4 of the Act and after
    completion of investigation he was charge-sheeted in the Court of Shri
    S.K. Jain, Judge, Kamal, the Designated Court under the Act.
                                                                               13
          As already stated the prosecution rested its case on the testimony
    of P.Ws. l and 2, they being the material witnesses. The appellant
    denied the prosecution case and stated in defence that on compassion-
    ate grounds he went to the place of congregation of the demonstrators
    to make enquiries when he came to know in the evening, on his return
    from School, that the police had resorted to lathi charge and firing to
    disperse the demonstrators and that one person had died on account of      c
    the firing. In support of his defence the appellant examined two
    witnesses besides himself and further sought to contend that about 60
    persons who had been arrested were let off without being prosecuted
    while he alone has been unjustly charge-sheeted on false averments.
                                                                               D
          The learned Judge of the Designated Court has accepted the
    prosecution evidence and found the appellant guilty and convicted him
    under Section 4 of the Act. After hearing the appellani on the question
    of sentence the Court has awarded him the minimum sentence of three
    years' R.I.
                                                                               E
           Arguing the case of the appellant before us Mr. Gopal Kishan

-   Bansal, learned counsel levelled many criticisms against the prosecu-
    tion case and submitted that the learned Judge of the Designated
    Court ought not to have- acted on the testimony of P. Ws. 1 and 2 and
    convicted the appellant. The learned counsel took us through the evi-
    dence of P.Ws. I and 2 and also the relevant portions of the judgment
                                                                               F
    under appeal and adverted to several infirmities in the evidence of the
    witnesses and also drew our attention to the lack of credible evidence
    in the case.

           Section 16 of the Act provides for an appeal against a judgment
    rendered by a Designated Court to the Supreme Court alone and to no G
    other court. Consequently, this appeal constitutes the first appeal as
    well as the final appeal against the judgment of the Designated Court.
    Such being the case, we have to necessarily scrutinise the evidence in
    irs entirety and re-appraise the testimony of witnesses to determine its
    evidentiary value. On making such scrutiny and re-appraisal of the
    evidence we find the contentions of the appellant's counsel to have H
     1100                  SUPREME COURT REPORTS            [1987] 1 S.C.R.

     merit and substance in them. We find the prosecution evidence to he
A    not only lacking in credibility but also to suffer from numerous
     infirmities.

         At the outset we would like to point out that even according to
   the prosecution a crowd of about 1000 to 1500 persons had gathered
B near the railway line in the village of Siwah on the morning of 2. 9 .85 in
   response to the call given by the Bhartiya Kisan Union for a Rail Roko
  Abhiyan. It is the further case of the prosecution that the demonstrators
  became violent and attempted to cause damage to the raiway line and
  in order to safeguard the railway property and maintain law and order
  the police force, assembled in adequate numbers, had resorted to lathi
  charge four or five times during the day and in addition the police had
c also to fire tear-gas shells and even to resort to shooting. One man had
  died on account of the shooting and several persons had sustained
  injuries on account of the lathi charge. Neverthless the crowd had not
  dispersed but continued to remain at the scene to carry on their agita-
  tion. In such circumstances it is natural to expect the police force to
  have remained, in strength at the scene to maintain effective control
D
  over the demonstrators and to safeguard the railway line. Curiously
  enough, the entil:e force comprised of a Deputy Superintendent of
  Police, Inspectors, Sub-Inspectors, Assistant Sub-Inspectors, Head
  Constables and Constables is said to have left the place en-masse
  except P. Ws. 1 and 2. It is significant to note P. Ws. 1 and 2 were not
  on SP.curity duty at that place but were only there to submit intelligence
E
  reports. When a lathi charge had been made even at 4.30 PcM. it is
  inconceivable that the entire police force would have left the place in
  the evening and gone away elsewhere. We are, therefore, led to think
  that this unnatural version is put forward to cover up the lacuna for not
  examining any police officer of a higher rank than P.Ws. I and 2
                                                                                -
  regarding the inflammatory speech alleged to have been made by the
F
  appellant at about 8.30 P.M. on that day.

           Even assuming for argument's sake that the entire police force
     had left the scene and only P.Ws. I and 2 were left at the place, the
     prosecution could have certainly examined some independent witnes-
G    ses to prove what the appellant had spoken on that night. Surely, it
     cannot be said that among the 1500 or 2000 persons present there, no
     one would have come forward to give evidence about what the appel-
     lant spoke on that night. No explanation has been offered as to why no
     independent witness has been examined. In fact P.Ws' I and 2 have
     not even stated that they tried to find out the names of any of the
     people assembled there or made any effort to note-down their names
       BALBIR SINGH v. STATE OF HARYANA (NATARAJAN, J.J              1101

so that they can later be summoned to appear as witnesses if a case was
to be filed against the appellant.                                           A

      Admittedly, the appellant was a stranger to P. Ws. 1 and 2 and
hence they could not have known who he was and what was his occupa-
tion. P. Ws. 1 and 2 had not made any enquiries to find out who the
appellant was and where he was residing. The strange version given by        f3
P.W. l is that before the appellant began his speech he introduced
himself to the demonstrators by giving out his name, address and
occupation. The statement, apart from its artificiality is not corro-
borated even by P.W. 2. Another discrepancy noticed is that while
P.W. I has stated that the appellant addressed the gathering from the
Chaubara with a microphone in his hand, P.W. 2 has stated that the
appellant stood in the midst of the demonstrators and addressed them         c
and moreover P. W.2 makes no reference to the appellant having any
microphone. While P.W. 2 has stated that he did not apprehend any
violent reaction from the public on account of the speech made by the
appellant, P.W. ! would say that from the moment the appellant
started introducing himself to the demonstrators he anticipated things       D
and began to take notes of the appellant's speech.

      A noticeable feature in the case ifs that the report Exhibit P.A. is
said to have been prepared on the basis of the "rough notes" prepared
by P.W. I but the "rough notes" is not forthcoming and has not been
marked in evidence and it is said to have been destroyed. Since the
                                                                             F
"rough notes" constitute the first recorded entry of the speech it is an
important document and in the absence of it the fair report cannot be
given unreserved acceptance. Even in the matter of the preparation of
the report, one would expect P. W. 2 holding a higher rank than P.W. 1
to have prepared it. Not only has P. W. 2 not prepared any report but
his own admission is that he did ,not sign or even initial the "rough
                                                                             F
notes" or the fair report Exhibit P.A.

      Apart from the failings in the evidence of P.Ws.1 and 2 we also
find that virtually rio investigation has been done before the appellant
was charge-sheeted. The Investigating Officer has not taken any steps
to find out the antecedants of the appellant and whether he was a
                                                                             G
member of any political party. No investigation has been made to find
out whether the appellant had an eight-chamber revolver as he is
alleged to have claimed and whether he had made any attempt on the
life of Ch. Bhajan Lal on an earlier occasion. Without making any
effective investigation the police authorities have lightly launched a
prosefution against the appellant solely on the basis of the report given    H
byP.W.l.
     1102                  SUPREME COURT REPORTS             [1987] 1 S.C.R.

A         Having regard to the numerous infirmities which are apparent in
    the prosecution case, we are clearly of the opinion that the learned
    Judge of the designated court was not justified in holding the prosecu-
    tion case proved beyond reasonable doubt and finding the appellant
    guilty under Section 4 of the Act and convicting him accordingly.

           We are constrained to observe that it is highly regrettable that
    the authorities concerned should have launched a prosecution under
    the Act in a manner which can be easily termed as cavalier. The Act
    though intended to effectively deal with terrorists and disruptionists
    contains drastic provisions for punishing terrorists and disruptionists
    under Sections 3 and 4 of the Act. Anyone convicted under Section            .-l.
c   3(2)(i) of the Act is liable to be punished with death and whoever is
    convicted under Section 3(2)(ii) of the Act is liable to be punished with
    imprisonment for a term which shall not be less than 5 years but which
    may extend to term of life and shall also be liable to fine. Whoever is
    convicted under Section 4 of the Act is liable to be punished with
    imprisonment for a term which shall not be less than 3 years but which
D   may extend to term of life and shall also be liable to fine. Furthermore,
    against any judgment, sentence or order rendered under the Act, an
    appeal would lie directly to the Supreme Court and not to the High
    Court. Having regard to all these features the investigation of cases
    under the Act has not only to be thorough but also of a high order. In
    this case we find the investigation to be nowhere near the required
E   standards and likewise the evidence adduced in the case to be far from
    satisfactory to justify the conviction of the appellant under Section 4 of
    the Act. The appeal has, therefore, to be necessarily allowed and the
    conviction and sentence awarded to the appellant set aside.

    M.L.A.                                                  Appeal allowed.
                                        •