Holding

The conviction under TADA is unsustainable; the appeal is allowed and the conviction is set aside.

Summary

Ganesh Gogoi was convicted by a Designated Court under Section 3(2)(i) of the Terrorist and Disruptive Activities (Prevention) Act (TADA) for the 1991 killing of Dinanath Agarwalla and sentenced to life imprisonment. The Supreme Court held that the prosecution offered no direct or material circumstantial evidence linking the appellant to the crime and that the requisite intent to commit a terrorist act, as required by Section 3(1) of TADA, was never established. The charge was framed under Section 3(5) of TADA, which was not in force at the time of the alleged offence, making the charge itself defective. Moreover, the appellant’s examination under Section 313 of the CrPC was unfair, involving an unsupported question about ULFA membership. Consequently, the Court set aside the conviction and ordered the appellant’s release, allowing the appeal.

Issues considered

The adequacy of evidence to sustain a conviction under Section 3(2)(i) of TADA.
Whether a charge under Section 3(5) of TADA could be framed for an incident that occurred before the provision was inserted into the statute.
Whether the requisite intent under Section 3(1) of TADA was established in the present case.
Whether the examination of the accused under Section 313 CrPC was conducted in accordance with the principles of natural justice.
The propriety of the Designated Court’s exercise of mind in framing charges and convicting under TADA.

Legislation cited

Code of Criminal Procedure, 1973s. 313
Indian Penal Code, 1860s. 302, s. 34, s. 365
Terrorist and Disruptive Activities (Prevention) Act, 1987s. 19(1), s. 3(1), s. 3(2)(i), s. 3(5)

Subjects

TADASection 313 CrPCnatural justicefair trialcharge framingintent requirementcircumstantial evidenceconviction set aside

Judgment

[20091 9 s.c.~. 1209

GANESH GOGOi A
v.
STATE OF ASSAM
(Criminal Appeal No. 1018 of 2007)
JULY 7, 2009
B
[DALVEER BHANDARI AND ASOK KUMAR
GANGULY, JJ.]
~

- Terrorist and Disruptive Activities (Prevention) Act, 1987:
ss.3(2)(i), 3(1), 3(5)- Charges framed under s.3(5) and s.302
/PC - Examination under s.313 CrPC - Conviction under
c
_....
( s.3(2)(i) -:-- On appeal, Held: No evidence to connect the
appellant with the alleged incident of killing of the victim -
Requisite intention of temJrist activity missing - Appellant was
convicted under s.3(2)(i) but ingredients of said Section not D
put to him under s.313 Cr.P.C. - There was thus not a fair
examination under s.313 - Moreover, charge was framed
under s.3(5) which was not brought on the statute on the date
of occuffence - The Designated Court failed in its duty in
matter of application of mind to materials on record at the E
stage of framing of charges and also at the time of convicting
the appellant - Conviction order is set aside - Penal Code,
' 1860 - s.302 - Code of Criminal Procedure, 1973 - s.313.

Code of Criminal Procedure, 1973: s.313- Purpose and
object of- Held: Provisions of s.313 are for the benefit of F
accused and to give him an opportunity to explain the
circumstances appearing in the evidence against him - The
provision is based on salutary principle of natural justice and
maxim 'audi a/teram partem' is enshrined in them - Therefore
> examination under s.313 has to be of utmost fairness - G
,.. Doctrines/Principles - Natural justice - Maxims.

Basavaraj R. Patil & others v. State of Karnataka &

....... 1209 H
-(
1210 SUPREME COURT REPORTS [2009) 9 S.C.R.

A others (2000) 8 SCC 740; Hitendra Vishnu Thakur and others
Vs. State of Maharashtra and others (1994) 4 sec 602, relied
on.

Case law reference:
B (2000) a sec 140 relied on Para 28
'
(1994) 4. sec· 602 relied on Paras 31 to 34

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
C No. 1018. of 2007.
P.K. Ghosh and Manish Goswami (for Map & Co) for the
Appellants.
.....'
·Avijit Roy (for Corporate Law Group) for the Respondents.
D
The Judgment of the Court was delivered by (

GANGULY, J. 1. This app~al has been filed under Section
19(1) of the Terrorist and Disruptive Activities (Prevention) Act,
1987 (hereinafter referred to as the 'TADA(P) Act') impugning
E the judgment dated· 11. 7.2007 passed by the learned
Designated Court, Assam, Guwahati in Sessions Case No. 68
of 2001 whereby the appellant has been convicted by the
learned Judge of the Designated Court under Section 3(2)(i)
TADA(P) Act and was sentenced to undergo imprisonment for
F life and to pay a fine of Rs.2000/- in default further imprisonment
for six months.
2. On the benefit of doubt being extended, the other
accused, namely, Premodhar Gogoi was acquitted.
G 3. The material facts of the case as alleged by the
prosecution are that on 2.9.1991 at about 7.30 a.m., Sub~
Inspector B. Kalita, who was in-charge of Naohalia Out Police
Post informed the Office-in-Charge of Bordubi Police Station
over telephone that on the previous day i.e. on 1.9.1991 at
H
\. GANESH GOGOi v. STATE OF ASSAM 1211
[ASOK KUMAR GANGULY, J.]

about 7.30 p.m. one Dinanath Agarwalla Naohalia was taken A
away in a Maruti car by some unknown persons and this
information was entered vide General Diary Entry No. 19 dated
2.9.1991.

4. Thereafter, Prabhat Gogoi, Officer-in-Charge along with
B
his staff reached the place of occurrence for investigation and
subsequently an FIR was lodged by him.
5. On conclusion of the investigation, charge-sheet dated
25.9.2001 was filed under Sections 365/302/34 of the Indian
Penal Code read with Sections 3(2)(i) and 3(5) of the TADA c
(P) Act against the appellant and Premodhar Gogoi.
6. Thereafter, on 10.1.2003, the learned Designated Court,
Assam framed charges against the appellant under Section
302 of the Indian Penal Code and Section 3(5) of the TADA(P) 0
Act. In the Trial evidence was adduced and the appellant was
examined under Section 313 of the Code of Criminal Procedure
and ultimately by the impugned judgment dated 11.7.2007 the
appellant was convicted by the learned Designated Court under
Section 3(2)(i) of the TADA(P) Act and was sentenced as
E
stated hereinabove.

~
7. Mr. P.K. Ghosh, learned senior counsel appearing on
behalf of the appellant while assailing the judgment under appeal
advanced various submissions.
F
8. His first submission is that there is no evidence ·which
can connect the appellant with the alleged incident ~nd,
therefore, the judgment of the learned Judge of the Designated
Court is wholly unsustainable in law. Learned Counsel further
· submitted that apart from the aforesaid infirmity the appellant G
,).. has been convicted only under Section 3(2){i) of TADA(P) Act
- whereas he has not been-charg~d under that Section at all.

9. Learned Counsel submitted that in view of the charge
which has been framed, he· could not have been convicted
H
1212 SUPREME COURT REPORTS [2009]_9 S.C.R.

A under Section 3(5) of the TADA(P) Act. He submitted ·that a
charge under Section 3(2)(i) and a charge under Section 3(5)
of the TADA(P) Act are different charges and one is not
encompassed by the other. His further submission is that
admittedly Sectic;m 3(5) of the TADA(P) Act has.been inserted
B in the statute book in 1993 by Section 4 of Act 43 of 1993.

10. The incident, as alleged by the prosecution, had taken
place in September 1991. Therefore, the appellant cannot be
charged for having committed an offence which was ,not in
C existence on the day of alleged commission but was brought
into the statute much later.

11. This appeal has been filed before this Court under
.-:
Section 19(1) of the TADA(P) Act which provides for an appeal
both on facts and on law and this Court being the First Appellate
D Court is entitled to look into the evidence on record. Section
19(1) reads as under:

"19. Appeal - ( 1) ·Notwithstanding anything contained in the
Code, an appeal shall lie as a matter of right from any·
judgment, sentence or order, not being an interlocutory
E
order, of a Designated Court to the Supreme Court both
on facts af1d on law.
~

12. In this cas-e·from the impugned judgment it is clear that
there is no direct evidence but there rsonly circumstantial
F evidence (see para 20 of the impugned judgment).

13. From paragraph 3 of the impugned judgment, it
appears that the prosecution examined ten witnesses.

14. P.W.1 - Dharam Chand Agarwalla is the brother of the
G deceased. He is not an eye witness. He was informed by his

-
;4

mother about the missing of his elder brother Dinanath
Agarwalla and his evidence is that he does not know who
kidnapped Dinanath Agarwalla from their house on the material
day and killed him. Therefore, the evidence of P.W.1 is that his.
H
GANESH GOGOi v. STATE OF ASSAM 1213
[ASOK KUMAR GANGULY.. J.]

elder brother was kidnapped from their house. A

15. But the evidence of the prosecution is that Dinanath
Agarwalla was kidnapped from the pan .$hop of Narayan Dey
(P.W.2).

16. P.W.2- Narayan Dey in his evidence stated that police B
took his signatures on a prepared statement to the effect that
the deceased was killed on the previous day though he had no
knowledge about the killing of Dlnanath Agarwalla. P.W.2 was
declared hostile and was cross-examined by the prosecution.
In his cross-examination also he stuck to his evidence given in c
Examination-in-Chief. In cross-examination he deposed that he
did not state before the 1.0. that Dinanath came to his shop for
taking pan and one Maruti car arrived near his shop and
accused persons while coming out of the car had some
discussion with Dinanath and he was taken in the car which was D
driven towards Madhuting.
I

17. P.W.3- Sushil Mazumdar was also declared hostile
and he stated in Chief that Police did not record any statement
from him in regard to the death of the deceased. He was
E
similarly cross-examined by the Police and in the cross-
examination also he stuck to his original statement and made
~
it very clear that he did not see the appellant and the other
.,..._ accused person kidnapping the deceased from the pan shop
of Narayan Dey.
F
18. P.W.4- Joyram Das is a police officer. He deposed
that on 17.8.1992 he was working as an Office in-charge at
Borubi Police Station. ~e deposed that he took over the
investigation and arrested one of the ·accused persons and
. from his interrogation cam's :to ~now that on the alleged date
of occurrence Dinanath Agarwalla was kidnapped by the
G

present appellant. In cross-examination P.W.4 admitted that he
did not send Premodhar Gogoi to any Magistrate for recording
his statement. It appears from the so called statement of
H
,1214 SUPREME COURT REPORTS [2009) 9 S.C.R.

A Premodhar Gogoi that the. same is not at all admissible having
been made before a police officer while in custody ·and in the
eoul'$e of alleged interrogation. Therefore, it has been rightly
~ntended by the learned counsel for the appellant that the
deposition of P.W.4 is not admissible in evidence.
B
. 19. P.W.5 is one Bibhusan Gogoi. He had merely seen
the dead body of victim fastened by rope and he was informed
by another person that the name of the deceased is -Dinanath
Agarwalla. He is not a material witness at all. He categorically
C stated that he did not know who had killed the Dinanath, the
victim.
20. P.W.6-Suresh Kr. Agarwalla is also not a material
witness. He merely identified the dead body of Dinanath and
merely deposed that the hands and feet of dead body were tied
b- with a .rope and the rope was seized by the police and he 1
signed the said document of seizure.
21. P.W.7-Prabhat Gogoi is another police officer. He
_initially took up the investigation and he recorded the
E statements of witnesses Dharam Chand Agarwalla and Sushil
Mazumdar but .they have not been examined in Court. He
claimed to have filed the FIR. In cross-examination P.W.7
deposed that in the FIR he has not specifically mentioned the .
involvement of the appellant in the aforesaid incident. He did
F not mention anything about the statement of witness Sushil
Mazumdar. The FIR was recorded by the P.W.7 _in this case
•during investigation". However, in the course of his evidence
P.W.7 never stated anything about the appellant being a
member of the United Liberation Front of Assam. In the FIR it
has clearly been stated "that investigation has already been -
G taken up by me. The certified copy of G.D.E. No.19 is enclosed
herewith." -

22. It is clear from the aforesaid statement, investigation
in the case had already commenced and once investigation
H
GANESH GOGOi v. STATE OF ASSAM 1215
[ASOK KUMAR GANGULY, J.]

commences the FIR is hit by Section 162 Cr.P.C. and no value A
can be attached to the same.
23. P.W.8· Satyaraj Hazarika merely deposed that he
submitted the prayer for accord of necessary prosecution
sanction to the then D.G.P of Assam and he also filed certain
B
other documents. He is not a material witness at all.
24. P.W.9 is Dr. N. Sonowal, who conducted postmortem
on the dead body of the victim.
25. P.W.10- Bipulananda Choudhury is another police c
officer, who obtained sanction from D.G.P Assam and
submitted the charge sheet against the accused persons. He
is also not a material witness.
26. From the above discussions, this Court finds that there
is no evidence to conned the appellant with the alleged incident D
of killing of the victim.
27. Apart from that this Court finds that in Section 313
Cr.P.C. examination of the accused-appellant, the Court has
put a question which is totally unfair. Three questions were put E
to the appellant. The second question is as follows:-
~
"Q. No.2. The witnesses deposed that you are a
__.,
member of ULFA?"
28. It does not appear that any witness has deposed that F
the appellant is a member of ULFA. Therefore, it is a very unfair
question. The Designated Court has allegedly convicted the
appellant under Section 3(2)(i) but the ingredients of the Sedion
3(2)(i) were not put to him. Therefore, there has not been a fair
~ examination under Section 313 of the Cr.P.C. at all. The G
provision~of-Section 313 are for the benefit of the accused and
are there to give the accused an opportunity to explain the
"circumstances appearing in the evidence against him". In
' Basavaraj R. Patil & others Vs. State of Kamataka & others
H
1216 SUPREME COURT REPORTS [2009] 9 s:c.R.

,I
A - (2000) 8 SCC 740, this Court held that those provisions are
not meant to nail the accused to his disadvantage but are
meant for his benefit. These provisions are· based on the
salutary principles of btural justice and the maxim 'audi
alteram partem' has be n enshrined in them. Therefore, the
B examination under Section 313 has to be of utmost fairness.
But that has not been done here. This is also a factor vitiating ~

the trial. ·

29. lt·appears that in the instant case the charge which was
framed by the Court against the appellant was under Section
c 3(5) of the said Act. But such a charge could not have been
framed against him by the Court in as much as on the alleged
date of occurrence, i.e. in September 1991, Section 3(5) of the ...
Act was not brought on the statute. The framing of the cha.rge
was thus inherently defective. However the appellant has been
D c<;>nvicted only under Section 3(2)(i)~ Section 3(2)(i) reads as
follows:-

"3(2) Whoever commits a terrorist act, shall, ~

(i) If such act has resulted in the death of any person, be
E
punishable with death or imprisonment for life and shall
also be liable to fine. n
t ~
30. On perusal of the provision of Section 3(2)(i), it is clear
..:·.
that Section 3(2)(i) has to be read with Section 3(1). Section
F 3(1) .is set out herein below:-

"3. Punishment for terrorist acts. ..:.. (1) Whoever with intent
to overawe the ·Government as by law established or to
. strike. terror in the people or any section of the people or
G ·to alie,nate any section of the people or to adversely affect
the harmony amongst different sections of the people does A
any act or thing by using bombs, dynamite or other
explosive substances or inflammable substances or fire-
arms or other lethal weapons or poisons or noxious gases
or other chemicals or by any other substances (whether
H
GANESH GOGOi v. STATE OF ASSAM 1217
[ASOK KUMAR GANGULY, J.]

biological or otherwise) of a hazardous nature in such a A
manner as to cause, or as is likely to cause, death of, or
injuries to, any person or persons or loss of, or damage
to, or destruction of, property or disruption of any supplies
or services essential to the life of the community, or detains
any person and threatens to kill or injure such person in B
order to compel the Government or any other person to do
or abstain from doing any act, commits a terrorist act."

31. The provision of Section 3( 1) has been construed by
this Court in several cases and reference in this connection may C
be made to the decision of Hitendra Vishnu Thakur and others
Vs. State of Maharashtra and others - (1994) 4 SCC 602,
wherein learned judges explained the ambit of a terrorist act
which has not been defined in detail under TADA(P) Act. Sub-
section (h) of Section 2 of the Act defines 'terrorist act' to mean
the same thing as assigned to it in sub-section (i} of Section D
3.
32. Section 3(1) of the said Act is therefore very vital for
understanding the true meaning and purport of terrorist acts. In
paragraph 5 of Hitendra Vishnu Thakur (supra), at page 617 E
of the report, Dr. Justice AS. Anand (as His Lordship then was)
analysed Section 3 as follows:-

"5. Section 3 when analysed would show that whoever with
intent (i) to overawe the Government as by law established; F
or (ii) to strike terror in the people or any section of the
people; or (iii) to alienate any section ofthe people; or (iv)
to adversely affect the harmony amongst different sections
of the people, does any act or things by using (a) bombs
or dynamite, or (b) other explosive substances, or (c)
inflammable substances, or (d) firearms, or (e) other lethal G
weapons, or (f) poisons or noxious gases or other
chemicals, or (g) any other substances (whether biological
or otherwise) of a hazardous nature in such a manner as
to cause or as is likely to cause (i) death, or (ii) injuries to
H
1218 SUPREME COURT REPORTS [2009) 9 S.C.R.

,A

A any person or persons, (iii) loss of or damage to or
destruction of property, or (iv) disruption of any supplies
or services· essential to the life of the community, or (v)
detains any person and threatens to kill or injure such
person in order to compel the Government or any other
B person to do or 11tz>stain from doing any act, commits a
'terrorist act' pun~hable under Section 3 of TADA." .
t

33. It is clear from the, perusal of Section 3 and its
interpretation in Hitendra WshQy Thakur (supra) that the
requisite intention is the sine qua non of terrorist activity. That
c intention is totally missing in this case. It is not there in the
charge and it-has also not come in the evidence. Therefore,
bot~ the framing of charges against the appellant under Section
3(5) and his conviction under Section 3(2)(i) of the said Act are
totally bad in law.
D +
· 34. In Hitendra Vishnu Thakur (supra) the Court has made
it clear that in many cases criminal activities constituting the
terrorist act may also be an offence under the ordinary penal
. law. Therefore before framing a charge under the stringent
E provisions of TADA(P) Act the Court has to be v~ry careful. In
view of seriousness of .the offence alleged under the stringent
provisions of the said Act, this Court in Hitendra Vishnu Thakur
(supra) (paragraph 14 at page 623 of the report), explained the
Court's duty in very explicit terms and which we quote:-
\
,F
"14.... An onerous duty is therefore cast on the Designated
Courts to take extra care to scrutinise the material on the
record and apply their mind to the evidence
- .
and·
documents a~ailable with the investigating agency before
charge-sheeting an accused for an offence under TADA.
G The stringent provisions of the Act coupled with the
enhanced punishment prescribed for the offences under "
the Act make the task of the Designated Court eve,wrnore
onerous, because the graver the offence, greater should
be the care taken to see that the offence must stricUy fall
H
GANESH GOGOi v. STATE OF ASSAM 1219
[ASOK KUMAR GANGULY, J.]

within the four corners of the Act before a charge is framed A
against an accused person. Where the Desi9nated Court
without as much as even finding a prima facie case on the
basis of the material on the record, proceeds to charge-
sheet an accused under any of the provisions of TADA,
~erely on the statement of the investigating agency, it acts B
merely as a post office of the investigating agency and
does more harm to meet the challenge arising out of the
'terrorist' activities rather than deterring terrorist activities.
The remedy in such cases would be worse than the disease
itself and the charge against the State of misusing the c
provisions of TADA would gain acceptability, which would
be bad both for the criminal and the society. Therefore, it
is the obligation of the investigating agency to satisfy the
Designated Court from the material collected by it during
the investigation, and not merely by the opinion formed by D
the investigating agency, that the activity of the 'terrorist'
falls strictly within the parameters of the provisions of
TADA before seeking to charge-sheet an accused under
TADA. The Designated Court must record its satisfaction
about the existence of a prima facie case on the basis of
the material on the record before it proceeds to frame a E
charge-sheet against an accused for offences covered by
TADA. Even after an accused has been charge-sheeted
for an offence under TADA and the prosecution leads
evidence in the case, it is an obligation of the Designated
Court to take extra care to examine the evidence with a F
view to find out whether the provisions of the Act apply or
not. The Designated Court is, therefore, expected to
carefully examine the evidence and after analysing the
same come to a firm conclusion that the evidence led by
the prosecution has established that the case of the G
accused falls strictly within the four corners of the Act
before recording a conviction against an accused under
TADA"

H
1220 SUPREME COURT REPORTS [2009] g· S.C.R.

A 35. In the instant case the Designated Court has failed in
its duty both in the matter of application of mind to the materials
on record at the stage of framing of charge and also at the time
of convicting the appellant. ·

36. This Court is, therefore, of the clear opinion that in the
8
facts of the case no charge against the accused under the said
Act could be framed, consequently he cannot be convicted .1
under the provisions of the said Act. In any way in the instant \~
case as discussed above, there is no evidence to connect the ·
appellant with the alleged incident. Therefore, the judgment and
C order of conviction is totally unsustainable in law and is set
aside. The appeal succeeds and the appellant be set atliberty
forthwith if he is not wanted in connection with any other case,

D.G. Appeal allowed.