HARPAL SINGHversusSTATE OF PUNJAB

A                             HARPAL SINGH
                                      v.
                            STATE OF PUNJAB

                            DECEMBER 4, 2007
B               [G.P. MATHUR AND G.S. SINGHVI,JJ.]


         Terrorist and Disruptive Activities (Prevention) Act, 1987-ss. l 2,
   18 and 20A(2)-Designated TADA Court-Jurisdiction of-To take
 C cognizance of offences under other Acts than the TADA-Held:
   Designated TADA Court gets jurisdiction to try any other offence only
   ifit has the jurisdiction and is trying an offence under TADA-On facts,
   since there was no sanction of the Inspector General ofPolice or of
   the Commissioner ofPolice as required under s.20-A(2) a/TADA, the
 D Designated TADA Court lacked inherent jurisdiction to try accused-
   appellant for offence under TADA-Consequently, it could not have
   tried him/or offences under any other Act as well viz. the Explosive
   Substances Act or the Explosives Act-Conviction of appellant by
   Designated TADA Court under s.5 of the Explosive Substances Act,
.E therefore, illegal and liable to be set aside-Explosive Substances Act,
   1908-s.5-Explosives Act, 1884.
         Words and Phrases-"Jurisdiction "-Meaning of-Discussed.
       The prosecution case was that on seeing a police party,
F appellant tried to run away but he was apprehended after a chase
  and a bag containing one kilogram explosive powder was recovered
  from the appellant. Charge-sheet was submitted in the Designated
  Court under the Terrorist and Disruptive Activities (Prevention) Act,
  1987 (TADA) for prosecution of the appellant. The Designated
G TADA Court acquitted appellant of the offences under TADA and
  the Explosives Act, 1884 and convicted him only under s.5 of the
  Explosive Substances Act, 1908.

         In appeal to this Court, it was contended that the Designated

H                                    830
                  HARPALSINGHv. STATE                            831

TADA Court lacked inherent jurisdiction to take cognizance of the A
offence under TADA and consequently had no jurisdiction to try and
convict the appellant under the Explosive Substances Act, 1908.
     Allowing the appeal, the Court
     HELD: 1.1. In view of sub-section (1) of s.20-A of the Terrorist B
and Disruptive Activities (Prevention) Act, 1987, no FIR about the
commission of an offence under TADA can be recorded by the police
without prior approval of the District Superintendent of Police.
Similarly, on account of sub-section (2) of s.20-A no court can take
cognizance of any offence under TADA without the previous sanction c
of the Inspector General of Police, or as the case may be, the
Commissioner of Police. Hence, the Designated Court is debarred
from taking cognizance of any offence under TADA without the
previous sanction of the Inspector General of Police or, as the case
may be, the Commissioner of Police. [Para 5] [835-C-D]                D
      1.2. The Designated Court, while trying an offence under
TADA, is empowered to try any other offence with which the accused
 may under the Cr.P.C be charged at the same trial ifthe offence is
connected with such other offence in view of s.12 ofTADA and may
convict such person of such other offence and may pass any sentence E
authorized by TADA or by such other law for the punishment thereof.
But for application of s.12, it is absolutely essential that the
Designated Court should be trying an offence under TADA. If the
Designated Court is not trying an offence under TADA it will have
no jurisdiction to try any other offence. S.18 also points out the same F
situation which says that where, after taking cognizance of any
offence, a Designated Court is of opinion that the offence is not
triable by it, shall, notwithstanding that it had no jurisdiction to try
such offence, transfer the case for the trial of such offence to any
court having jurisdiction under the Code of Criminal Procedure. Thus G
the Designated Court gets the jurisdiction to try any other offence
only if it has the jurisdiction and is trying an offence under TADA.
                                                     [Para 8] (836-C-F)
    Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijja
                                                                       H
    832            SUPREME COURT REPORTS               [2007) 12 S.C.R.

A and Ors., AIR (1990) SC 1962, relied on.
       2. Jurisdiction means the authority or power to entertain, hear
  and decide a case and to do justice in the case and determine the
  controversy. In absence of jurisdiction the court has no power to hear
  and decide the matter and the order passed by it would be a nullity.
B                                                       [Para 9) [837-H)
        Black's Law Dictionary and Law Lexicon by P. Ramanatha Aiyar,
    2nd edition, Reprint 2000, referred to.
        3. In the present case, in the first charge-sheet there was no
C mention ofTADA at all. It was in the supplementary charge-sheet
  filed that the prosecution introduced the offence under TADA. But
  there was no sanction of the Inspector General of Police or the
  Commissioner of Police as required under s.20-A(2) of TADA, as
  such, the Designated Court had no jurisdiction to take cognizance
D of the offence and, therefore, it could not have tried the appellant
  even for offences under the Explosive Substances Act, 1908 or the
  Explosives Act, 1884. Thus the conviction of the appellant under s.5
  of the Explosive Substances Act, 1908 is illegal.
                                                   [Para 10) [838-A-C]
E
        Rambhai Nathabhai Gadhvi and Ors. v. State ofGujarat, (1997)
  7 sec 744, relied on.
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
    548 of2007.
F
        From the Judgment and final Order dated 16.03.2007 of the
    Designated Court, Kapurthala at Jallandhar, Punjab in TADA Sessions
    Case No.4 of 2006.
     Sushi! Kumar, Sanjay Jain, Anmol Thakral, Vinay Arora, Mukesh
G Kumar and Sudarshan Singh Rawat for the Appellant.
          Kuldip Singh for the Respondent.
          The Judgment of the Court was delivered by
H         G.P. MATHUR, J. 1. This Appeal has been preferred under
              HARPALSINGHv. STATE[G.P.MATHUR,J.]                          833
.,
     Section 19 of the Terrorist and Disruptive Activities (Prevention) Act, A
     1987 against the judgment and order dated 16.3.2007 of Designated
     Court, Kapurthala at Jalandhar in TADA Sessions Case No. 4 of2006
     by which the appellant has been convicted under Section 5 of the
     Explosive Substances Act, 1908 and has been sentenced to 5 years R.I.
i    and a fine ofRs.1,000/-.                                                B
          2. The case of the prosecution, in brief, is that on 12.3.1992 Kamaljit
     Singh, SHO, Santokh Singh, SI and some other police personnel were
     going from village Kukar Pind to village Raipur in connection with
     investigation of a case bearing FIR No. 31 under Section 302/34 IPC,
     Section 25 Arms Act and Sections 3, 4 and 5 of Terrorist and Disruptive c
     Activities (Prevention) Act, 1987 (hereinafter referred to as 'TADA').
     When they reached on Byen Bridge in village Kukar Pind, they saw a
     person coming on foot. On seeing the police party he tried to run away
     but he was apprehended after a chase and on inquiry he disclosed his
     name as Harpal Singh (appellant in this appeal). On his personal search D
     explosive powder wrapped in a glazed paper was recovered from the
     'jhola" (bag) which he was having in his right hand. The bag contained
     one kilogram explosive powder which was taken into possession. A ruka
     was sent to the police station on the basis of which FIR was registered
     against the appellant.                                                       E
           3. After investigation and receipt of the sanction and report of the
     Forensic Science Laboratory charge-sheet was submitted in the court on
     24.2.1994 for prosecution of the appellant under Sections 4, 5, and 9B(b)
     of the Explosives Act, 1884. There was no mention of any offence under
                                                                                F
     TADA or under the Explosive Substances Act, 1908. The charge-sheet
     was submitted in the Designated Court which took cognizance of the
     offence and proceeded with the trial of the appellant. Ultimately the
     Designated Court acquitted the appellant for the offences under TADA
     and the Explosives Act, 1884, but convicted him only under Section 5 of
     the Explosive Substances Act, 1908 and sentenced him to 5 years R.I. G
f    and a fine ofRs.1,000/-.
          4. Shri Sushi! Kumar, learned senior counsel for the appellant, has
     submitted that the case against the appellant is not established from the
     evidence adduced by the prosecution but instead of going into the facts H
    834           SUPREME COURT REPORTS                    [2007] 12 S.C.R.


A and appraisal of evidence the appeal can be allowed on a legal ground.
        5. Part III of TADA deals with Designated Courts. Sub-section (1)
  of Section 9 of TAD A provides that the Central Government or a State
  Government may, by notification in the Official Gazette, constitute one or
  more Designated Courts for such area or areas, or for such case or class
B or group of case as may be specified in the notification. Sub-section (1)
  of Section 11 of TADA lays down that notwithstanding anything contained
  in the Code of Criminal Procedure, every offence punishable under any
  provision of this Act or any rule made thereunder shall be triable only by
  the Designated Court within whose local jurisdiction it was committed or,
C as the case may be, by the Designated Court constituted for trying such
  offence under sub-section (1) of Section 9. Sections 12 and 18 ofTADA
  read as under:-
              "12. Power of Designated Courts with respect to other
D         offences. - ( l) When trying any offence, a Designated Court may
          also try any other offence with which the accused may, under the
          Code, be charged at the same trial if the offence is connected with
          such other offence.
               (2) If, in the course of any trial under this Act, of any offence,
E         it is found that the accused person has committed any other offence
          under this Act or any rule made thereunder or under any other law,
          the Designated Court may convict such person of such other
          offence and pass any sentence authorised by this Act or such rule
          or, as the case may be, such other law, for the punishment thereof."
F
              "18. Power to transfer cases to regular courts. - Where,
          after taking cognizance of any offence, a Designated Court is of
          opinion that the offence is not triable by it, shall, notwithstanding
          that it had no jurisdiction to try such offence, transfer the case for
          the trial of such offence to any court having jurisdiction under the
G         Code and the court to which the case is transferred may proceed
          with the trial of the offence as if it had taken cognizance of the
          offence."
    By Act No. 43 of 1993 Section 20-A was introduced in TADA with
H
             HARPAL SINGH v. STATE [G.P. MATHUR, J.]                      835

     effect from 22.5.1993 and the said section reads as under: -                A
            "20-A. Cognizance ofoffence. - (1) Notwithstanding anything
            contained in the Code, no 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.
                                                                                 B
               (2) No court shall take cognizance of any offence under this
            Act without the previous sanction of the Inspector-General of
            Police, or as the case may be, the Commissioner of Police."
     Therefore, with effect from 22.5.1993, in view of sub-section (1) of
     Section 20-A, no FIR about the commission of an offence under TADA C
     can be recorded by the police without prior approval of the District
     Superintendent of Police. Similarly on account of sub-section (2) of Section
     20-A no court can take cognizance of any offence under TADA without
     the previous sanction of the Inspector General of Police, or as the case
     may be, the Commissioner of Police. The effect of this amendment is that D
     the Designated Court is debarred from taking cognizance of any offence
     under TADA without the previous sanction of the Inspector General of
     Police or, as the case may be, the Commissioner of Police.
           6. As mentioned earlier, the alleged recovery of the incriminating E
     article fro.m the appellant took place on 12.3.1992 and the case was
     registered under Sections 4 and 5 of the Explosives Act, 1884. The police,
     after investigation, submitted charge-sheet before the Designated Court
     on 24.2.1994. In the charge-sheet there was no reference to any case
     under TADA or under the Explosive Substances Act, 1908 against the F
     appellant. The appellant was granted bail in the case under the Explosives
     Act on 1.7.1992. Thereafter he went away to USA and applied for
     political asylum. He was declared as absconder on 20.1.1995. The US
     authorities deported him to India in 2006. Thereafter the police submitted
    ·supplementary charge-sheet against the appellant on 29.5.2006 for his G
i    prosecution under TADA and the Explosive Substances Act. The
     Designated Court thereafter tried the appellant for offences under TADA
     besides Sections 4 and 5 of the Explosives Act and also under Sections
     4 and 5 of the Explosive Substances Act.
         7. The important feature which is to be noted is that the prosecution H
    836            SUPREME COURT REPORTS                     [2007] 12 S.C.R.


A did not obtain sanction of the Inspector General of Police or of the
  Commissioner of Police for prosecution of the appellant under TADA at
  any stage as is required by Section 20-A(2) of TADA. The trial of the
  appellant before the Designated Court proceeded without the sanction
  of the Inspector General of Police or the Commissioner of Police. In
B absence of previous sanction the Designated Court had no jurisdiction to
  take cognizance of the offence or to proceed with the trial of the appellant
  under TADA.
         8. The Designated Court, while trying an offence under TADA, is
  undoubtedly empowered to try any other offence with which the accused
C may, under the Code of Criminal Procedure, be charged at the same trial
  if the offence is connected with such other offence in view of Section 12
  of TADA and may convict such person of such other offence and may
  pass any sentence authorized by TADA or by such other law for the
  punishment thereof. But for application of Section 12 it is absolutely
D essential that the Designated Court should be trying an offence under
  TADA. If the Designated Court is not trying an offence under TADA it
  will have no jurisdiction to try any other offence. Section 18 also points
  out the same situation which says that where, after taking cognizance of
  any offence, a Designated Court is of opinion that the offence is not triable
E by it, shall, notwithstanding that it had no jurisdiction to try such offence,
  transfer the case for the trial of such offence to any court having jurisdiction
  under the Code of Criminal Procedure. Thus the Designated Court gets
  the jurisdiction to try any other offence only if it has the jurisdiction and is
  trying an offence under TADA. In Niranjan Singh Karam Singh Puf'!jabi
F v. Jitendra Bhimraj Bijja and Ors., AIR (1990) SC 1962, it was
  observed as under: -
           "Section 12( I) no doubt empowers the Designated Court to try
           any offence punishable under any other statute along with the
           offence punishable under the Act if the former is connected with
G          the latter. That, however, does not mean that even when the
           Designated Court comes to the conclusion that there exists no
           sufficient ground for framing a charge against the accused under
           S.3(1) it must proceed to try the accused for the commission of
           offences under other statutes. That would tantamount to usurping
H
         HARPALSINGHv. STATE[G.P.MATHUR,J.]                             837

       jurisdiction. Section 18, therefore, in tenns provides that where after A
       taking cognizance of any offence the Designated Court is of the
       opinion that the offence is not triable by it, it shall, notwithstanding
       that it has no jurisdiction to try such offence, transfer the case for
       the trial of such offence to any Court having jurisdiction under the
       Code."                                                                   B
     9. At this stage it will be useful to refer to the dictionary meaning of
the word 'Jurisdiction': -
       Black's Law Dictionary : "Court's power to decide a case or issue
       a decree".                                                        C
       Words and Phrases - Legally defined - Third Edition (p.497) :
       "By 'jurisdiction' is meant the authority which a court has to decide
       matters that are litigated before it or to take cognizance of matters
       presented in a formal way for its decision. The limits of this
       authority are imposed by the statute, charter, or commission under D
       which the court is constituted, and may be extended or restricted
       by similar means. If no restriction or limit is imposed the jurisdiction
       is said to be unlimited. A limitation may be either as to the kind
       and nature of the actions and matters of which the particular court
       has cognizance, or as to the area over which the jurisdiction E
       extends."
        Law Lexicon by P. Ramanatha Aiyar- 2nd Edn. Reprint 2000 :
        "An authority or power, which a man hath to do justice in causes
        of complaint brought before him (Tomlin's Law Die.). The power F
       to hear and determine the particular case involved; the power of a
        Court or a judge to entertain an action, petition, or other
       proceeding; the legal power of hearing and determining
       controversies. As applied to a particular claim or controversy,
       jurisdiction is the power to hear and determine the controversy." G
Jurisdiction, therefore, means the authority or power to entertain, hear and
decide a case and to do justice in the case and determine the controversy.
In absence of jurisdiction the court has no power to hear and decide the
matter and the order passed by it would be a nullity.
                                                                                H
    838            SUPREME COURT REPORTS                    [2007] 12 S.C.R.


A         10. As mentioned earlier, in the first charge-sheet which was filed
  on 24.2.1994 there was no mention of TADA at all. It was in the
  supplementary charge-sheet filed on 29.5.2006 that the prosecution
  introduced the offence under TADA. But there was no sanction of the
  Inspector General of Police or of the Commissioner of Police as required
B under Section 20-A(2) of TADA and, therefore, the Designated Court
  had no jurisdiction to take cognizance of the offence. Since the Designated
  Court lacked inherent jurisdiction to try the offence under TADA it could
  not have tried the appellant even for offences under the Explosive
  Substances Act, 1908 or the Explosives Act, 1884. Thus the conviction
c of the appellant under Section 5 of the Explosive Substances Act, 1908
  is illegal.
        11. The aforesaid view has also been taken by this Court in
    Rambhai Nathabhai Gadhvi and Ors. v. State of Gujarat, [1997] 7
    sec 744 and para 8 of the report is reproduced below: -
D
           "8. Taking cognizance is the act which the Designated Court has
           to perfonn and granting sanction is an act which the sanctioning
           authority has to perfonn. Latter is a condition precedent for the
           fonner. Sanction contemplated in the sub-section is the pennission
E          to prosecute a particular person for the offence or offences under
           TADA Sanction is not granted to the Designated Court to take
           cognizance of the offence, but it is granted to the prosecuting agency
           to approach the court concerned for enabling it to take cognizance
           of the offence and to proceed to trial against the persons arraigned
           in the report. Thus a valid sanction is sine qua non for enabling
F
           the prosecuting agency to approach the cou.'1 in order to enable
           the court to take cognizance of the offence under TADA as
           disclosed in the report. The corollary is that, if there was no valid
           sanction the Designated Court gets no jurisdiction to try a case
           against any person mentioned in the report as the court is forbidden
G
           from taking cognizance of the offence without such sanction. If the
           Designated Court has taken cognizance of the offence without a
           valid sanction, such action is without jurisdiction and any
           proceedings adopted thereunder will also be without jurisdiction."
H         12. In view of the discussion made above there cannot be any escape
              HARPALSINGHv. STATE[G.P.MATHUR,J.]                      839

     from the conclusion that the Designated Court had no jurisdiction to try A
     and convict the appellant under the Explosive Substances Act, 1908 in
     view of the fact that it could not have taken cogniz.ance of the offence
     under TADA for lack of sanction by the competent authority under Section
     20-A(2) of TADA. In view of the fact that the Designated Court could
"'   not try the offence under TADA being tiebarred from taking cogniz.ance B
     thereof on account of want of sanction by the competent authority under
     the mandatory provisions of Section 20-A(2), it could not try any offence
     under any other Act as well.
          13. The appeal is accordingly allowed and the conviction of the
     appellant under Section 5 of the Explosive Substances Act and the C
     sentence imposed thereunder are set aside. The appellant shall be released
     forthwith unless wanted in some other case.
     B.B.B.                                               Appeal allowed.
                                                                             D