Holding

Under TADA, bail may be granted only after the court has given the public prosecutor an opportunity to oppose and is satisfied, on the basis of the charge‑sheet/police report and evidence, that there are reasonable grounds to believe the accused is not guilty; therefore, the bail order granted without considering the police report was set aside.

Summary

The Union of India appealed against a bail order granted to Mohd. Sadiq Rather under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA). The charge‑sheet, deemed a police report under Section 173(2) of the Code of Criminal Procedure (CrPC), had been filed with the Designated Court at Jammu, but the bail application was transferred to another Designated Court at Srinagar, which granted bail without examining the report. The issue was whether bail could be granted without perusing the police report and whether TADA provisions override the procedural requirements of the CrPC and Evidence Act. The Supreme Court held that Section 20(8) of TADA imposes two conditions – an opportunity for the public prosecutor to oppose and a court satisfaction that there are reasonable grounds to believe the accused is not guilty – and that these are in addition to the CrPC requirements. Consequently, the police report is relevant and must be considered before bail can be granted. The Court set aside the bail order, directed the respondent to surrender, and ordered the original Designated Court to rehear the bail application with the police report.

Issues considered

Can a Designated Court grant bail under TADA without perusing the charge‑sheet/police report filed under Section 173 of the CrPC?
Do the provisions of TADA, including its non‑obstante clauses, have overriding effect over the procedural provisions of the CrPC and the Evidence Act?
Are the bail conditions under TADA in addition to those prescribed by the CrPC?
Is the police report relevant for determining "reasonable grounds" under Section 20(8) of TADA?

Legislation cited

Code of Criminal Procedure, 1973s. 170, s. 173(2), s. 173(5), s. 190(1)(b)
Indian Evidence Act, 1872
Terrorist and Disruptive Activities (Prevention) Act, 1987s. 20(8), s. 20(9)

Subjects

TADAbaildesignated courtpolice reportnon‑obstante clauseCriminal Procedure Codecharge sheetterrorismappeal

Judgment

UNION OF INDIA A
v.
MOHD. SADIQ RATHER

NOVEMBER 17, 1992
B
[M.H. KANIA, CJ. N.M. KASLIWAL AND N.P. SINGH, JJ.]

Criminal Law: Ten-orist and Dismptive Activities (Prevention) Act,
1987-Sections 20(8) and (9)-Bail-Conditions necessary for releas~
Charge sheet/Police report submitted before Designated Court-Bail applica-
tion of accused-Considered and accused released on bail by another Desig c
noted Court without pentsing Charge- sheet/Police Report-Whether proper.

Non-obstante clauses in different sections-Effect of-Whether provi-
sions of Act have over-riding effect over provisions and procedure prescribed
under the Criminal Procedure Code, 1973 and Evidence Act, 1872. D
The respondent, against whom and 14 others a charge sheet was filed
before the Designated Court under the Terrorist and Disruptive Activities
(Prevention) Act, 1987, filed an application for bail before that Designated
Court. This application was transferred to another Designated Court for
disposal. The application was opposed by the prosecution, on grounds, E
inter alia, that the respondent was instrumental in the abduction and
confinement of the Vice-Chancellor of a University and his Private
Secretary and as the evidence collected disclosed the involvement of the
respondent, he should not be released on bail. However, the Designated
Court directed the release of the resp·ondent on bail, on the finding, that F
there were reasonable grounds for believing that the respondent was not
guilty of the offence under the Act.

In the appeal before this Court against the Designated Court's
order, on behalf of the appellant-Union of India it was contended that after
the conclusion of the investigation, charge-sheet, which should be deemed G
to be a Police Report within the meaning of sub-!!ection (2) of Section 173
of the Criminal Code, 1973, was forwarded to the Designated Court
concerned, but the application for bail was heard and disposed of by
another Designated Court, without perusing the Police Report so sub-
mitted. H
81
82 SUPREME COURT REPORTS (1992] SUPP. 3 S.C.R.

A On behalf of the respondent, it was contended that non~ availability
of the 'Police Report submi~ted after investigatiop should not affect in '.'my
manner the order directing the release of the respondent.

Disposing of the appeal, by special leave, this Court

B
HELD: 1.1. On .a plain reading of sub-section (8) of Section 20 of the
Terrorist. and Disruptive Activities (Prevention) Act, 1987, it is dear that
before a person who has been accused of an offence punishable under the
Act is released on bail, two conditions must be fulfulled; (a) an opportunity
must be given to the Public Prosecutor to oppose the application for such
c release, (b) .the Court must be satisfied that there are reasonable grounds
for believing that the said accused is not guilty of such offence. Therefore,
an application for bail filed on behalf of a person, who has been accused
of an offence punishable under the Act has t~ be examined carefully and
cautiously on the basis of charges levelled in the first information report,
D and the evidence collected in course of the investigation. These conditions
are in addition to those under the Criminal Procedure Code, 1973. This
position has been made explicit by sub-section (9) of Section 20 of the Act.
(84-H; SS-A, BJ

1.2. The Police Report submitted after the investigation of an alleged
E offence is not just mere expression of the opinion of· the Investigating
officer having no connection or nexus with the materials collected during
the investigation. In view of sub-section (5) of Section 173 of the Code of
Criminal Procedure, 1973, when such report is in respect of a case to which
Section 170 of the Code is applicable i.e. where it appears to the lnvestigat·
F ing Officer 'that there is sufficient evidence or reasonable ground •..' the
Investigating Officer should forward to the Magistrate along with the
report all documents and the statements recorded under Section 161 of
the Code. The framers of the Code have vested powers in the Magistrate
under Section 190(1)(b) to take cognizance of any offence 11pon such a
Police Report. If Magistrate can take cognizance of an offence on the basis
G of a Police Report submitted under Section 173(2) of the Code, such a
Police Report cannot be held to be irrelevant while considering an applica-
tion for bail under sub-section (8) of Section 20 of the Act, as to whether
there are reasonable grounds for believing that the accused in question is
guilty of such offence and as such he should be directed to be rel~ased.
H [86-E-H; 87-A]
U.0.1. v. MOHD. SADIQ RATHER [N.P. SINGH, J.] 83

1.3. In t.he instant case, the Designated Court should have perused A
the charge-sheet/Police Report submitted after the conclusion of the inves-
tigation before passing the order, directing the release of the respondent
on bail. The Designated Court, before which the charge-sheet/Police Report
has been filed, should now hear the application for bail filed on behalf of
the respondent afresh, and peruse the Police Report along with the docu-
B
ments and statements recorded, which have been foi:warded under sub-sec-
tion (5) of Section 173 of the Code and pass an order, as early as possible.
(87-C-D]
CRIMINAL APPELLATE JURISDICTAION : Criminal Appeal
No. 680 of 1992.
c
From the Judgment and Order dated 24.1.92 of the Desingated
Court, Srinagar in Case FIR No. RC. 5(S) 90-SIU-V/SIC-Il/CBI, U/S.
120-B, 302, 341, 364 RPC and Section 3 of TADA 1987.

V.R. Reddy, Additional Solicitor General, G. Nageshwar Reddy,
C.V.S. Rao Advs. with him for the Appellant. D
R.A. Jain, M.S.A. Farooqui and R. Sasiprabhu, Advs. for the
Respondent.

The Judgment of the Court was delivered by
E
N.P. SINGH, J. Special leave granted.

This appeal has been filed on behalf of Union of India for setting
aside an order passed by the Designated Court under the Terrorist and
Disruptive Activities (Prevention) Act,.1987 (hereinafter referred to as "the
TADA Act"), directing the release of the respondent on bail, on a finding F
that there are reasonable grounds for believing that the said respondent
was not guilty of the offence under the Act aforesaid.

Mushir-ul-Haq, Vice-Chancellor of .Kashmir University, and his
Private Secretary, Abdul Gani, were abducted on 6.4.1990 by the militants.
In connection with the said incident •a first information report was lodged G
for offences under sections 364, 341 and 120B of the Penal Code and
section 3 of the TADA Act. Both the hostages were killed on 10.4.1990 as
the State Government did not yield to the demands of the terrorists.
Thereafter, Section 302 of the Penal Code was also added. The investiga-
tion of the case was transferred to the Central Bureau of Investigation H

__J\
84 SUPREME COURT R~PORTS [1992) SUPP. 3 S.C.R.

A (hereinafter referred to as "the ·CBI") by a notification issued by the
Government of India. After investigation, charge-sheet was submitted on
23.11.1991 before the Designated Court under the TADA Act at Jammu
against .15 accused persons including respondent Mohd. Sadiq Rather.

It may be mentioned! that the said respondent filed an application for ·
B bail. before the Designated Court at Jammu. The said application was
transferred to the Designated Court at Srinagar for disposal. It is the case
of the appellant that the said application for bail was opposed by the
Special Prosecutor of C.B.I. on grounds inter alia that the respondent was
instrumental in the abduction and confinement of the Vice-Chancellor and
C his Private Secretary in his house and in the course of investigation eviden-
ces have been collected which disclose tht: involvement of the said respon-
dent, as such he should not be released on bail. However, by the impugned
order dated 24.1.1992, the Designated Court at Srinagar directed the
release of the respondent on bail.

D The TADA Act makes special provisions for the prevention of, and
for coping with, terrorist and disruptive activities, some of which are
different from the provisions of the Code of Criminal Procedure (herein-
after referred to as "the Code"). In view of the 1wn-obstante clause in
different sections, the provisions of the TADA Act have over-riding effect
E over the provisions and procedure prescribed under the Code and the
Evidence Act. Sub-section (8) of Section 20 of the said Act says:-

"Notwithstanding anything contained in the Code, no per-
son accused of an offence punishable under this Act or
any ~ule made thereunder shall, if in custody, be released
F on bail or on his own bond unless -

(a) the Public Prosecutor has been given an opportunity
to oppose the application for such release, and

(b) where the Public Prosecutor opposes the application,
G
the court is satisfied that there are reasonable grounds
for believing that he is not guilty of such offence and
that he is not likely to commit any offence while on
bail."

H On a plain reading a person who has been accused of an offence punish-
U.0.1. v. MOHD. SADIQ RATIIER [N.P .. SlNGJi, J~] 85

able under the Act aforesaid before he is released on bail two conditions A
must be fulfilled (a) an opportunity must be given to the Public Prosecutor
to oppose the application for such release, (b) the Court must be satisfied
that there are reasonable grounds for believing that the said accused is not
guilty of such offence. In view of the aforesaid conditions, it cannot be
disputed that an application for bail filed on behalf of a person who has B
been accused of an offence punishable 1,Ulder the Act has to be examined
carefully and cautiously on basis of the charges levelled in the first infor-
mation report, and the evidence collected in course of the investigatfon.

The learned Additional Solicitor General appearing on behalf of the
appellant pointed out that in the instant case after conclusion of the C
investigation charge-sheet which shall be deemed to be a Police Report
within the meaning of sub-section (2) of Section 173 of the Code, was
forwarded to the Designated Court at Jammu, whereas the application fo!..
bail filed on behalf of the respondent was· heard and disposed of by the
Designated Court at Srinagar without perusing the Police Report so sub-
mitted. This fact is not in dispute. According to the learned counsel who D
appeared for the respondent, non-availability of the Police Report so
submitted after investigation shall not effect in any manner the order
directing the release of the respondent.

The relevant part of Section 173 of the Code provides:- E
"173. Report of police· officer 011 completion of investiga-
tion.- (1) Every investigation under this Chapter shall be
completed without unnecessary delay.

(2) (i) As soon as it is completed, the officer in charge F
of the police station shall forward to a Magistrate em,
powered to take cognizance of the offence on a police
report, a report in the form prescribed by the State
Government, stating -

(a) the names of the parties :
G

(b) the nature of the information;

(c) the names of the persons who appear to be acquainted
with the circumstances of the case; H
86 SUPREME COURT REPORTS [1992) SUPP. 3 S.C.R.

A ( d) whether any offence appears to have been committed
, . and, if so, by whom;

( e) whether the accused has been arrested;

(t) whether he has been released, on his bond and, if so,
B whether with or without sureties; ·

(g) whether he· has been forwarded m custody under·
Section 170.

c
(5) When such report is in respect of a. case to which
·section 170 applies, the police officer shall forward to the
· Magistrate· along with the report -

(a) all documents or relevant extracts thereof on which
D the prosecution proposes to · rely other than thosl?
already sent to the Magistrate during investigation;

{b) the statements recorded under Section 161 of all the
persons whom the prosecution proposes to examine as
its witnesses."

It' need not be impressed that the Police Report submitted after the
investigation of an alleged offence is not just mere expression of the l•
opinion of the Investigating Officer having no connection or nexus with the
materials collected dming the investigation. In view of sub-section (5) of
f Section· 173 when such report is in respect of a case to which Section 170
I
of the Code is applicable i.e. where it appears to the Investigating Officer (
'that there ~s sufficient evidence ot reasonable ground .. .' the Investigating

G
Officer shall forward to the Magistrate along with che report all documents
and the statements recorded under Section 161 of the Code. The framers
of the Code have vested powers in the Magistrate under. Section 190(1)(b)
c
to take cognizance of any offence upon such a Police Report. If Magistrate
can take cognizance of an offence on the basis of a Police Report submitted
under Section 173(2) of the Code, how such Police Report can be held to
r
be irrelevant while considering an application for bail under sub-section
(8) of Section 20 of the TADA Act, as to whether there are reasonable -
H grounds for believing that the accused in question is not guilty of such (
U.0.1. v. MOHD. SADIQ RATHER [N.P. SINGH, J.] 87

offence and as such he should be directed to be released. The conditions A
for grant of bail specified under sub-section (8) of Section 20 of the TADA
Act are in addition to those under the Code. This position has been made
explicit by sub-section (9) of Section 20 of the TADA Act which says :-

"The limitations on granting of bail specified in sub-section
(8), are in addition to the limitations under the Code or B
any other law for the time being in force on granting of
bail."

According to us, the Designated Court should have perused the Charge-
sheet/Police Report submitted after the conclusion of the investigation
before passing the impugned order. Accordingly, the order dated 24.1.1992 C
directing the release of the respondent on bail is set aside. We direct the
Designated Court, before which the Charge-sheet/Police Report has been
filed, to hear the application for bail filed 9n behalf of the respondent
afresh and to peruse the Police Report along with the documents and
statements recorded, which have been forwarded under sub-section (5) of D
Section 173 of the Code and to pass an order in accordance with law.

The respondent shall surrender within three weeks from today before
the Designated Court and the Designated Court is directed to dispose of
the application for bail as early as possible. '
E
Before we part with this order we may mention that although both
the parties had referred to different documents, statements including some
of the paragraphs of the Police Report, during the course of the hearing
of this appeal, but we are not expressing any opinion on the merit of the
case, being conscious of the fact that any expression of opinion by this court ·p
is likely to pre~udice one party or the other.

N.P.V. Appeal disposed of.