Case: State of W.B Vs. Mohammed Khalid

The short facts are as under.5.On the evening of 16-3-1993, an explosion occurred at or near Premises No. 267, B.B. Ganguly Street, Calcutta. 69 persons died, 5 of them died as a result of direct blast and 46 others were injured. The said premises and some other buildings adjoining it collapsed and/or were badly damaged.6.A complaint was lodged on 17-3-1993 regarding this incident by Mr B.K. Chattopadhaya, Sub-Inspector attached to Bowbazar Police Station. This complaint was treated as first information report. On that basis, Case No. 84 dated 17-3-1993 was registered in the police station under Sections 120-B/436/326/307/302 Indian Penal Code and Sections 3 and 5 of the Explosive Substances Act. Having regard to the gravity of the offence, the Commissioner of Police, Calcutta passed an order that the case shall be investigated by a team of high-ranking police officials. In the course of investigation witnesses were examined, various seizures were made and confessions made by two of the accused, namely, Pannalal Jaysoara and Mohammed Gulzar were recorded by a learned Me tropolitan Magistrate on 7-4-1993 and 19-5-1993 respectively. During investigations it appeared that materials had transpired for prosecuting the accused under Sections 3 and 4 of TADA. On 3-5-1993, information to this effect was given to the learned Chief Metropolitan Magistrate, Calcutta. The learned Magistrate made a record of this fact and observed that the investigating officer might proceed to investigate offences under TADA.7.Upon completion of investigation, the police obtained sanction to prosecute under Sections 3 and 5 of the Explosive Substances Act from the State Government. Sanction under Section 20-A(2) of TADA from the Police Commissioner was also obtained. The charge-sheet was submitted on 14-6-1993, well within 90 days as is spoken to under Section 167(2)(a)(i) of the Code of Criminal Procedure (hereinafter referred to as the Code).8.The sanction to prosecute under Sections 3 and 5 of the Explosive Substances Act and the sanction under Section 20- A(2) were obtained on 11-6-1993. While granting sanction under Section 20-A(2) of TADA it was mentioned that the records were placed before the sanctioning authority for examination and perusal. It appeared that for the last 5/6 years accused Pannalal Jaysoara had been manufacturing bombs in the "Khaskhas" room on the first floor of 267, B.B. Ganguly Street, Calcutta as and when required by accused Mohammed Rashid Khan, first respondent in Criminal Appeal No. 328 of 1994. Accused Jaysoara was introduced to other accused, namely, Mohammed Abdul Aziz, first respondent in Criminal Appeal No. 329 of 1994 and Lala alias Parwez Khan.Death of 69 persons, serious injuries to 46 persons and complete destruction of a two-storeyed building and partial collapse of other two and damage to five more buildings were caused by the accused by an explosion caused by bombs and huge quantities of extremely dangerous nitro-glycerine-based explosives which experts have opined to be dangerous to life and property. The sanctioning authority mentioned inter alia that the intention of the accused was to strike terror in the people and/or to strike terror in a particular section of the people and/or to adversely affect the harmony amongst the Hindus and the Muslims. It was also mentioned the accused had conspired and prepared to commit disruptive activities. In the charge-sheet all the necessary ingredients under Sections 3(1) and 4 of TAD A had been mentioned.9.The first respondent, Mohammed Rashid Khan moved a writ petition under Article 226 of the Constitution of India making inter alia the following prayers:That the cognizance taken by learned Chief Metropolitan Magistrate, Calcutta, Respondent 7, in TADA Case No. 1 of 1993 arising out of Section H (Bowbazar Police Station) Case No. 84 dated 17-3-1993 and all subsequent proceedings thereto are illegal, void and inoperative in law; A writ in the nature of certiorari and/or an order of direction in the like nature commanding the respondents to transmit th e records relating to TADA case pending before the said respondent to this Court; 689 A writ in the nature of prohibition and/or an order of direction in the like nature prohibiting the respondents and/or their agents and/or their subordinates from proceeding any further with the TADA case; A writ in the nature of mandamus to respondents to forbear from applying the provisions of TADA against him and from taking any action or step thereunder and to release the petitioner from custody forthwith.10.A declaration was also prayed for that TADA is violative of the Constitution and is liable to be struck down. But the High Court by its impugned judgment held that TADA has been wrongly applied in the case and the orders of sanction and further taking cognizance by the Designated Court on 14- 6-1993 was not proper, legal and valid and the same was quashed and set aside.11.Aggrieved by the impugned judgment, the State of West Bengal has preferred these criminal appeals.

Reasoning: 35. Upholding the validity of the TADA this Court in Kartar Singh v. State of Punjab9 held that the Act falls under Entry I of List I, i.e., Defence of India. That being so, the offences under Sections 3 and 4 must relate to sovereignty and integrity of India. In Hitendra Vishnu Thakur22 this Court in dealing with the definition of terrorism held: Unless the Act complained or falls strictly within the letter and spirit of Section 3(1) of TADA and is committed with the intention as envisaged by that section the accused cannot Hitendra Vishnu Thakur v. State of Maharashtra,be tried and convicted. Hence, it is submitted the order of sanction must be examined in this light. The Designated Court must record the motive as postulated under Section 3(1). If, therefore, the dominant intention isthe matter will have to be viewed only from that angle. In Sanjay Dutt v. State through CBI23 this Court held that the accused could prove in relation to offences which do not require mens rea, an innocent possession will not bring the offence under Section 5. Therefore, it is submitted in cases where mens rea is required like Sections 3 and 4, it must relate to sovereignty and integrity of India. Hence, the Court will have to determine the dominant intention as laid down in Mathuri v. State of Punjab24. In this case, the dominant intention isTherefore, it will not constitute an of fence under TADA. In thereport, the ingredients of neither Sections 3 nor 4 are mentioned. The documents, if taken into consideration, refer to two confessions. They would only point to selfdefence.It is the duty of the sanctioning authority to apply its mind. In Indu Bhusan Chatterjee v. State25 it has been so laid down. The order according sanction must give reasons. The necessity for giving reasons has been laid down in Uma Charan v. Stat e of M.p26 and again in Siemens Engg. &Mfg. Co. of India Ltd. v. Union of India27. With regard to motive and intention, the learned counsel cites Blacks Law Dictionary.38.Therefore, in this case, the intention was not to terrorise. On the contrary, it is only by way of selfdefence. Therefore, no exception could be taken to the impugnedour considered view, certainly the Designated Court could do all these at the time of framing of charges and not the High Court under Article 226, as has been done in the instant case.67.We are not in a position to accept the submissions of the learned counsel for the respondent that in order to find out whether a valid sanction existed, the High Court had appreciated the findings.68.Equally, much cannot be said of the fact that the order of sanction mentions "sanction for prosecution", since it is stated "sanction for prosecution under Sections 3 and 4 of TADA Act" means only sanction to proceed under Sections 3 and 4 of TADA Act. The ruling of Ram Kumar v. State of Haryana18, deal t with the different situation as to the scope of sanction under Sections 132 and 197 of the Code. In the case of a public servant, both the sanctions were necessary. That judgment has no application to the present case.69.Having regard to the various acts of expressed conspiracy, it has to be "and/or". It is only during the trial the prosecution has to prove the part played by each of the accused.li Mohammad v.it is held asstatements of each prisoner are evidence against himself only and are inadmissible against his fellow accused. Consequently, the only safe method of testing the strength of the case for the prosecution is to take each mans case separately, neglect the evidence of the other and ask whether the conflicting and inconsistent nature of the matters alleged and persons implicated combined with the admission that the accused man was himself present is enough to justify a verdict against him. It may be possible that each is sheltering a third person and even if it be possible that one of the two accused is guilty, there must be circumstances from which could be deduced which of the two is the guilty one. Though proof of motive is not essential , it is a material consideration. But it is not legitimate to speculate as to possible but unproved motives.The difficulty in all cases where two persons are accused of a crime and where the evidence against one is inadmissible against the other is that however carefully assessors or a jury are directed and however firmly a Judge may steel his mind against being influenced against one by the evidence admissible only against the other, nevertheless the mind may inadvertently be affected by the disclosures made by one of the accused to the detriment of the other."of these rulings would apply because the question of leading evidence by the prosecution in relation to conspiracy, as stated above, would arise only during the stage of trial which is yet to commence in the instant case.72. As to the fact of conspiracy, theclearly mentions the same. Therefore, factually, this finding is wrong. We are not in a position to accept the argument of the learned counsel for the respondent that if the bombs are forthere is no mens rea and therefore, no offence underproceeding further, all that we can say, in this case, is that the materials are enough to bring the case under Section 3(1) of the Act. Of course, in order to establish this, evidence will have to be led in during the trial. Therefore, we restrain from making any further observation which may tend to prejudice the parties. If that be so, the question of mentioning in the sanction order that the ordinary law has broken down, does not arise. 78.Coming to taking cognizance, it has been held by the High Court that it is not a reasoned order. We are of the view that the approach of the High Court in this regard is clearly against the decision of this Court in Stree Atyachar VirodhiAgain, in Niranjan Singh K.S. Punjabi case13 it is stated at (SCC page 85, para 7), asin Supdt. &Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja38, this Court observed in paragraph 18 of the judgment asstandard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charge against the accused in respect of the commission of that offence."supplied)80.The confessional statements of the two accused were very much there before the Court. There is no reason to believe that the Court had not looked at the same.81.The other finding that what can be looked at is only the police report, cannot be sustained. In Satya Narain Musadi v. State of Biharl4 (SCC at pagespara 10) it was held asreport as envisaged by Section 173(2) has to be accompanied as required by(5) by all the documents and statements of the witnesses therein mentioned. One cannot divorce the details which the report must contain as required by(5) from its accompaniments which are required to be submitted under(5). The whole of it is submitted as a report to the Court. But even if a narrow construction is adopted that the police report can only be what is prescribed in Section 173(2) there would be sufficient compliance if what is required to be mentioned by the statute has been set down in the report. To say that all the details of the offence must be set out in the report under Section 173(2 ) submitted by the police officer would be expecting him to do something more than what Parliament has expected him to set out therein. If the report with sufficient particularity and clarity specifies the contravention of the law which is the alleged offence, it would be sufficient compliance with Section 11. The details which would be necessary to be proved to bring ho me the guilt to the accused would emerge at a later stage, when after notice to the accused a charge is framed against him and further in the course of the trial."The ruling Uma Charan v. State of M.p26 cited by Mr Dipankar Ghosh, has no application to the facts of this case because Regulation 5(5) of the Indian Public Service (Appointment by Promotion) Regulations, 1955, in that case, required reasons to be recorded.83.That is not the position here. Hence, that is clearly distinguishable. The High Court has found in the impugned judgment asacts which the accused persons did is the act of preparation and storage of bombs, which are undoubtedly made o f explosive substances. From these acts of preparation and storage of bombs, it cannot be inferred that the accused intended to kill the Hindus or strike terror amongst the people or a section of the people, alienate a section of the people or adversely affect the harmony among different sections of the people. Such an intent cannot be inferred from the mere preparation and storage of bombs. It may be noted in this connection that police report does not disclose that the accused persons caused the explosion. As a consequence of the explosion which occurred ona large number of persons who were killed were Muslims and not Hindus and even from the consequences of the explosion with which the accused have not been charged, it cannot b e inferred that accused who are alleged to have been responsible for the preparation and storage of the bombs, intended to kill Hindus, or strike terror amongst a section of people or that they had any of the intents specified in Section 3(1) of the Act."are clearly of the opinion that this is a perverse reasoning.84.On intention and motive, we only need to refer to Corpus Juris Secundum (A Contemporary Statement of American Law), Volume 22. It is held at page 116 (Criminal Law) as(a) In general (b) Specific or general intent crimes (a)In general.As actual intent to commit the particular crime toward which the act moves is a necessary element of an attempt to commit a crime. Although the intent must be one in fact, not merely in law, and may not be inferred from the overt act alone, it may be inferred from the circumstances."regards motive in American Jurisprudence, 2nd Edn., Vol. 21, in Section 133, it is stated as. In criminallaw motive may be defined as that which leads or tempts the mind to indulge in a criminal act or as the moving power which impels to action for a definite result."in the light of the above, suffice it to hold the preparation and storage of bombs, as pointed out above, are per se illegal acts. The intention that it was to defend the Muslims, is totally unwarranted. "Bomb is not a toy or top to play with". The further question is, when does thence arise? The High Court should have assumed that each of the allegations made in theto be factually correct and should have examined the ingredients of the offence. As rightly contended by Mr U.R. Lalit, learned Senior Counsel, thecannot be considered in a restricted way.87.On a careful perusal of the judgment we are left with the impression that the High Court had indulged in a laboured exercise, without limiting itself to the proper jurisdiction under Article 226 of the Constitution of India, in matters of this kind. We do not want to elaborate on the motive to prepare bombs and the intention thereto since the trial is yet to commence.