Criminal Appeal No 222 Of 1986 From the Judgment and Order dated 113
1986 of the Sessions Judge Karnal in Misc
Sessions Case D No 1072 of 1985 Harbans Lal and GK Bansal for the Appellant
VC Mahajan and CV Subba Rao for the Respondent
The Judgment of the Court was delivered by NATARAJAN J
While allowing this appeal and setting aside the conviction of the appellant Balbir Singh under Section 4 of the Terrorist and Disruptive Activities Pre vention Act 1985 in short the Act  by our order dated 301086 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 MA and BT was originally a Lieutenant in the Armed Forces
On account of some mental ailment he was discharged from the Army
There after 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 1098 Senior Secondary School at Sanauli Khurd
He however continued to reside at Siwah since he could not get accommo dation 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 of two prosecution witnesses viz PWI Jagdish Chander a Police Constable and PW2 Gian Chand a Head Constable
One other witness Ramji Lal PW3 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
The evidence of PWs 1 and 2 is to the following ef fect
Pursuant to a call given by the Bhartiya Kisan Union for a Rail Roko Abhiyan on 2985 a crowd of about 1500 persons had gathered on the forenoon of that day at a place near the railway line in the village Siwah Tehsil Panipat district Karnal
To safeguard the railway line and to main tain the law and order the authorities had posted a large contingent of police at the place of gathering of the demon strators
In spite of the presence of the police force the demonstrators became violent and attempted 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 occa sions and also to firing tear gas shells
At one point of time as the violence did not abate the police had to resort to shooting also
One of the demonstrators died on account of gun shot injuries and some others sustained injuries due to the lathi charge
The appellant it is stated came at about 8 or 830 PM to the place where the lathi charge and shooting had taken place and addressed 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 inter ests 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 to the ways and methods adopted by the Punjab extremists and that for his part he was prepared to lead their struggle since he had an eight chamber revolv er and that he had on earlier occasion attempted to kill Ch
Bhajan Lal Chief Minister of Haryana and hence the demon strators may lend him their cooperation so that the Govern ment can be forced to safeguard the interests of the people of Haryana
1099 PWs 1 and 2 who were on intelligence duty carefully listened to the speech and on the next morning PW 1 pre sented a report Exhibit PA at the Police Station at Nissing
Thereupon a case was registered against the appel lant under Section 4 of the Act and after completion of investigation he was charge sheeted in the Court of Shri SK Jain Judge Karnal the Designated Court under the Act
As already stated the prosecution rested its case on the testimony of PWs 1 and 2 they being the material witness es
The appellant denied the prosecution case and stated in defence that on compassionate 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 the firing
In support of his defence the appel lant examined two witnesses besides himself and further sought to contend that about 60 persons who had been arrest ed were let off without being prosecuted while he alone has been unjustly charge sheeted on false avernments
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 appellant on the question of sentence the Court has awarded him the minimum sentence of three years  RI Arguing the case of the appellant before us Mr Gopal Kishan Bansal learned counsel levelled many criticisms against the prosecution case and submitted that the learned Judge of the Designated Court ought not to have acted on the testimony of PWs 1 and 2 and convicted the appellant
The learned counsel took us through the evidence of PWs 1 and 2 and also the relevant portions of the judgment 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 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 its 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 1100 merit and substance in them
We find the prosecution evi dence to be 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 near the railway line in the village of Siwah on the morning of 2985 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 ade quate numbers had resorted to lathi charge four or five times during the day and in addition the police had 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
Neverth less the crowd had not dispersed but continued to remain at the scene to carry on their agitation
In such circumstances it is natural to expect the police force to have remained in strength at the scene to maintain effective control over the demonstrators and to safeguard the railway line
Curi ously enough the entire force comprised of a Deputy Super intendent of Police Inspectors Sub Inspectors Assistant Sub Inspectors Head Constables and Constables is said to have left the place en masse except PWs 1 and 2
It is significant to note PWs 1 and 2 were not on security duty at that place but were only there to submit intelligence reports
When a lathi charge had been made even at 430 PM 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 PWs 1 and 2 regarding the inflammatory speech alleged to have been made by the appellant at about 830 PM on that day
Even assuming for argument s sake that the entire police force had left the scene and only PWs 1 and 2 were left at the place the prosecution could have certainly examined some independent witnesses 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 appellant spoke on that night
No explanation has been offered as to why no independent witness has been examined
In fact PWs 1 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 1101 so that they can later be summoned to appear as witnesses if a case was to be filed against the appellant
Admittedly the appellant was a stranger to PWs 1 and 2 and hence they could not have known who he was and what was his occupation
PWs 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 PW 1 is that before the appellant began his speech he introduced himself to the demonstrators by giving out his name address and occupa tion
The statement apart from its artificiality is not corroborated even by PW 2
Another discrepancy noticed is that while PW 1 has stated that the appellant addressed the gathering from the Chaubara with a microphone in his hand PW 2 has stated that the appellant stood in the midst of the demonstrators and addressed them and moreover PW2 makes no reference to the appellant having any micro phone
While PW 2 has stated that he did not apprehend any violent reaction from the public on account of the speech made by the appellant PWi would say that from the moment the appellant started introducing himself to the demonstra tors he anticipated things and began to take notes of the appellant s speech
A noticeable feature in the case ifs that the report Exhibit PA is said to have been prepared on the basis of the rough notes prepared by PW 1 but the rough notes is not forthcoming and has not been marked in evidence and it is said to have been destroyed
Since the 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 PW 2 holding a higher rank than PW 1 to have prepared it
Not only has PW 2 not prepared any report but his own admis sion is that he did not sign or even initial the rough notes or the fair report Exhibit PA Apart from the failings in the evidence of PWs 1 and 2 we also find that virtually no 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 member of any politi cal party
No investigation has been made to find out wheth er 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
With out making any effective investigation the police authori ties have lightly launched a prosecution against the appel lant solely on the basis of the report given by PWI 1102 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 prosecution 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 regret table 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 32i of the Act is liable to be punished with death and whoever is convicted under Section 32ii 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 con victed 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 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 direct ly 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 standards and likewise the evidence ad duced 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
MLA Appeal al lowed


Summary:
A crowd of about 1500 persons had gathered near the railway line in the village Siwah District Karnal on the morning of 2985 in response to a call given by the Bhar tiya Kisan Union for a Rail Roko Abhiyan
To safeguard the railway line and to maintain law and order the authorities posted a large contingent of police
Since the demonstrators 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 830 pm to the place where lathi charge and shooting had taken place addressed the demonstrators and incited them to violence
According to the prosecution PWs
I and 2 who were on intelligence duty carefully listened to the speech and on the next morning PWI presented a report at he Police Station
Thereupon a case was registered against the appellant under s4 of the Terrorists and Disruptive Activi ties Prevention Act 1985 and after investigation he was charge sheeted
The Designated Court under the Act accepted the prosecution evidence and found the appellant guilty and convicted him under s4 of the Act
Allowing the appeal by the appellant this Court HELD 1
The Judge of the designated court was not justified in holding the prosecution case proved beyond reasonable doubt and finding the appellant guilty under s4 of the Act and convicting him accordingly
The prosecution evidence is not only lacking in credibility but also suffers from numerous infirmities
It is far from satisfactory to justify the conviction of the appellant under s4
The conviction and sentence awarded to the appellant are there fore set aside
1096 2
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 other court
Consequently this appeal constitutes the first appeal as well as the final appeal
Such being the case the Supreme Court has to necessarily scrutinise the evidence in its entirety and re appraise the testimony of witnesses to determine its evidentiary value
1099G H 31
I and 2 were not on security duty at that place but were only there to submit intelligence reports
When a lathi charge had been made even at 430 pm 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 examining any police officer of a higher rank re garding the inflammatory speech alleged to have been made by the appellant at about 830 pm on that day
1100E F 32 The prosecution could have certainly examined some independent witnesses 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 for ward to give evidence about what the appellant spoke on that night
No explanation has been offered as to why no inde pendent witness has been examined
In fact PWs
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 so that they can later be summoned to appear as witnesses if a case was to be filed against the appellant
1100G H 1101A 33 The appellant was a stranger to PWs1 and 2 and hence they could not have known who he was and what was his occupation
I and 2 had not made any enquiries to find out who the appellant was and where he was residing
The strange version given by PWI is that before the appellant began his speech he introduced himself to the demonstrators by giving out his name address and occupation
The state ment apart from its artificiality is not corroborated even by PW 2
Another discrepancy noticed is that while PW I has stated that the appellant addressed the gathering from the Chaubra with a microphone in his hand PW2 has stated that the appellant stood in the midst of the demonstrators and addressed them
Moreover PW2 makes no reference to the appellant having any microphone
1101A C 34 The report Exhibit PA is said to have been pre pared on the basis of rough notes prepared by PWI but the rough notes  is not forthcoming and has not been marked in evidence and is said to have 1097 been destroyed
Since the rough notes constitute the first recorded 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 PW2 holding a higher rank than PWI to have prepared it
Not only has PW2 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 PA 1101D F 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 disruptionists contains drastic provi sions 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