TaxTMI 
TaxTMI 
2007 (4) TMI 669
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....below:- "80. Section 12 of TADA enables the Designated Court to jointly try, at the same trial, any offence under TADA together with any other offence "with which the accused may be charged" as per the Code of Criminal Procedure. Sub-section (2) thereof empowers the Designated Court to convict the accused, in such a trial, of any offence "under any other law" if it is found by such Designated Court in such trial that the accused is found guilty of such offence. If the accused is acquitted of the offences under TADA in such a trial, but convicted of the offence under any other law, it does not mean that there was only a trial for such other offence under any other law. 81.Section 15 of TADA enables the confessional statement of an accused made to a police officer specified therein to become admissible "in the trial of such a person". It means, if there was a trial of any offence under TADA together with any other offence under any other law, the admissibility of the confessional statement would continue to hold good even if the accused is acquitted under TADA offences." The view expressed above stands in unison with view expressed in paragraphs 408 and 674 and same is notic....
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....ertaining thereto since the entire justice delivery system is dependent upon the concept of fairness: It is the interest of justice which has a predominant role in the criminal jurisprudence of the country \026 The hall-mark of justice is the requirement of the day and the need of the hour. Once the Court comes to a definite finding that invocation of TADA Act is wholly unjustified or there is utter frivolity to implicate under TADA, would it be justified that Section 15 would be made applicable with equal force as in TADA cases to book the offenders even under the general law of the land. There is thus doubt as noticed above!! On the wake of the aforesaid and having regard to the decision of the Constitution Bench of this Court in Pradip Chandra Parija v. Pramod Chandra Patnaik, (2002) 1 SCC 1, we do feel it expedient to direct the Registry for placing this matter before Hon'ble the Chief Justice of India for constituting a 3-Judge Bench for the purpose. It is ordered accordingly." In turn, the three-Judge Bench by an order dated 9.3.2004 has referred the matters to a five-Judge Bench. The order reads:- "This matter has been referred to a 3-Judge Bench doubting the correc....
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....overn one set of persons or objects such laws may not necessarily be the same as those governing another set of persons or objects so that the question of unequal treatment does not really arise between persons governed by different conditions and different set of circumstances. 220. Coming to the distinction made in TADA Act grouping the terrorists and disruptionists as a separate class of offenders from ordinary criminals under the normal laws and the classification of the offences under TADA Act as aggravated form of crimes distinguishable from the ordinary crimes have to be tested and determined as to whether this distinction and classification are reasonable and valid within the term of Article 14 of the Constitution. In order to consider the question as to the reasonableness of the distinction and classification, it is necessary to take into account the objective for such distinction and classification which of course need not be made with mathematical precision. Suffice, if there is little or no difference between the persons and the things which have been grouped together and those left out of the groups, the classification cannot be said to be a reasonable one. In makin....
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.....682) as under:- "263.However, we would like to lay down following guidelines so as to ensure that the confession obtained in the pre-indictment interrogation by a police officer not lower in rank than a Superintendent of Police is not tainted with any vice but is in strict conformity with the well-recognised and accepted aesthetic principles and fundamental fairness: (1) The confession should be recorded in a free atmosphere in the same language in which the person is examined and as narrated by him; (2) The person from whom a confession has been recorded under Section 15(1) of the Act, should be produced before the Chief Metropolitan Magistrate or the Chief Judicial Magistrate to whom the confession is required to be sent under Rule 15(5) along with the original statement of confession, written or recorded on mechanical device without unreasonable delay; (3) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate should scrupulously record the statement, if any, made by the accused so produced and get his signature and in case of any complaint of torture, the person should be directed to be produced for medical examination before a Medical Officer not lower....
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....c places, the object to terrorise, to create fear and panic in the minds of citizens and to disrupt communal peace and harmony is clearly discernible. This is a new and overt phase of terrorism which requires to be taken serious note of and dealt with effectively and expeditiously. The alarming increase in disruptive activities is also a matter of serious concern. " As the Act of 1985 was due to expire on 23rd May 1987, the President promulgated the Terrorist and Disruptive Activities (Prevention) Ordinance, 1987 (2 of 1987) which came into force from 24th May 1987. The Ordinance was repealed by the enactment of 1987 (No.28 of 1987) which received the assent of the President on 3rd September 1987. However, the scheme of the special provisions in the Act of 1985 and the Act of 1987 remains the same. The scheme of the Act being, for the prevention of, and for coping with, terrorist and disruptive activities and for matters connected therewith or incidental thereto. The 1987 Act was further amended by an Amending Act 43 of 1993. The Statement of Objects and Reasons to Amending Act are as follows:- "The Terrorist and Disruptive Activities (Prevention) Act, 1985 was enacted on ....
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....valent ordinary procedural law was found to be inadequate and not sufficiently effective to deal with the offenders indulging in terrorist and disruptive activities. The preambles and statements of objects and reasons as referred to above are manifestly evident that such extra-ordinary Act was made to deal with extra-ordinary situation for the prevention of, and for coping with, terrorist and disruptive activities and for matters connected therewith or incidental thereto. The term 'terrorism' has not been defined under the Act. This Court in Hitendra Vishnu Thakur Vs. State of Maharashtra (1994) 4 SCC 602 held in paragraph 7 (SCC p. 618) as under:- "7."Terrorism' is one of the manifestations of increased lawlessness and cult of violence. Violence and crime constitute a threat to an established order and are a revolt against a civilised society. 'Terrorism' has not been defined under TADA nor is it possible to give a precise definition of 'terrorism' or lay down what constitutes 'terrorism'. It may be possible to describe it as use of violence when its most important result is not merely the physical and mental damage of the victim but the prolonged psychological effect it pro....
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.... intention as contemplated by Section 3(1) of the Act by use of such weapons as have been enumerated in Section 3(1) and which cause or are likely to result in the offences as mentioned in the said section." As already noticed, the Act provides harsh and stringent provisions aimed at to achieve the statement of objects and reasons for the prevention of, and for coping with, terrorist and disruptive activities and for matters connected therewith or incidental thereto. The more stringent the Law, the less is the discretion of the Court. Stringent laws are made for the purpose to achieve its objectives. This being the intendment of the legislature the duty of the court is to see that the intention of the legislature is not frustrated. If there is any doubt or ambiguity in the statutes, the rule of purposive construction should be taken recourse to, to achieve the objectives. (See Swedish Match AB & Anr. vs. Securities & Exchange Board, India & Anr. (2004) 7 Scale 158 para 84 at p. 176) Before we proceed further, we may at this stage, notice a few decisions of this Court on the subject. In the case of Bilal Ahmed Kaloo Vs. State of A.P. (1997) 7 SCC 431 the two-Judge Bench of ....
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.... whether the confessional statement duly recorded under Section 15 of TADA would continue to remain admissible as for the offences under any other law which were tried along with TADA offences under Section 12 of the Act, notwithstanding the fact that the accused was acquitted of offences under TADA in the said trial. The questions posed before us for the termination are no more res integra. In our view, the same have been set at rest by the three-Judge Bench decision rendered in Nalini (supra). The rigours of Sections 12 and 15 were considered in Nalini's case and rendered a finding in paragraphs 80, 81 and 82 (SCC p.304) as under:- "80.Section 12 of TADA enables the Designated Court to jointly try, at the same trial, any offence under TADA together with any other offence "with which the accused may be charged" as per the Code of Criminal Procedure. Sub-section (2) thereof empowers the Designated Court to convict the accused, in such a trial, of any offence "under any other law" if it is found by such Designated Court in such trial that the accused is found guilty of such offence. If the accused is acquitted of the offences under TADA in such a trial, but convicted of the of....
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.... confession admissible, dehors the provisions of the Evidence Act in the trial of such person or coaccused, abettor or conspirator for an offence under the TADA Act or rules made thereunder provided the coaccused, abettor or conspirator is charged and tried in the same case together with the accused. The import of Section 15 (1) is that insofar as the provisions of CrPC and the Evidence Act come in conflict with either recording of a confession of a person by a police officer of the rank mentioned therein, in any of the modes specified in the section, or its admissibility at the trial, they will have to yield to the provision of Section 15(1) of the TADA Act as it is given overriding effect." It was also pointed out in paragraph 704 at SCC p.580 that a confession of an accused under Section 15 of the TADA Act is substantive evidence against the co-accused, abettor or conspirator jointly tried with the accused. Before we proceed to consider the rigours of Sections 15 and 12 we may at this stage point out that it is a trite law that the jurisdiction of the Court to interpret a statute can be invoked only in case of ambiguity. The Court cannot enlarge the scope of legislation or....
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....o a penal statute any narrow and pedantic, literal and lexical construction may not always be given effect to. The law would have to be interpreted having regard to the subject-matter of the offence and the object of the law it seeks to achieve. The purpose of the law is not to allow the offender to sneak out of the meshes of law. Criminal jurisprudence does not say so." and further in paragraph 30 at SCC p.638 it was pointed out as under:- "30. Yet again in Supdt. And Remembrancer of Legal Affiars to Govt. of W.B. v. Abani Maity (1979) 4 SCC 85 the law is stated in the following terms: (SCC p.90, para 18) "19{18}. Exposition ex visceribus actus is a long-recognised rule of construction. Words in a statue often take their meaning from the context of the statute as a whole. They are therefore, not to be construed in isolation. For instance, the use of the word 'may' would normally indicate that the provision was not mandatory. But in the context of a particular statute, this word may connote a legislative imperative, particularly when its construction in a permissive sense would relegate it to the unenviable position, as it were, 'of an in effectual angel beating its wings in a l....
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....concerned and if he does not understand the language in which it is recorded, it shall be interpreted to him in a language which he understands and he shall be at liberty to explain or add to his confession. (3) The confession shall, if it is in writing, be (a) signed by the person who makes the confession; and (b) by the police officer who shall also certify under his own hand that such confession was taken in his presence and recorded by him and that the record contains a full and true account of the confession made by the person and such police officer shall make a memorandum at the end of the confession to the following effect:- "I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing and recorded by me and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him. Sd/- Police Officer.". (4) Where the confession is recorded on any mechanical device, the memorandum referred to in sub-....
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....mentioned therein, in any of the modes specified in the Section, or its admissibility at the trial, Section 15 of the TADA Act will have a overriding effect over the Cr.P.C. and the Evidence Act. Counsel for the appellants strenuously urged that the words "for an offence under this Act" employed in Section 15 suggest that the confession recorded under Section 15 in the manner provided, excludes the confession admissible in evidence if no offence under TADA is made out. In other words, the confession recorded under Section 15 in the manner provided excludes the confession admissible in evidence insofar for the other offences are concerned. Counsel also urged that the words, "but subject to provisions of this Section" also suggest that the said provisions are confined only to the TADA offences. We are unable to accept this contention. Section 15 of the TADA Act and Rules framed thereunder is a selfcontained code in itself, providing procedural safeguards and the words, "but subject to the provisions of this Section" employed therein would mean the procedural safeguards prescribed under the Section. As already pointed out Section 15 has overriding effect over the Evidence Act and C....
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.... Court held: It is a cardinal principle of construction of a statute that effort should be made in construing its provisions by avoiding a conflict and adopting a harmonious construction. The statute or rules made thereunder should be read as a whole and one provision should be construed with reference to the other provision to make the provision consistent with the object sought to be achieved. Section 12 which empowers the Designated Court to try any other offence with which the accused may be charged under the Code at the same trial provided the offence is connected with such other offence. This section has been brought to the statute book in consonance with the preamble of the Act, which says, "for the prevention of, and for coping with, terrorist and disruptive activities and for matters connected therewith or incidental thereto." Therefore, Section 12 is introduced to take care of the matters connected with or incidental to terrorist activities. A conjoint reading of two sections as a whole, it leaves no manner of doubt that one provision is to be construed with reference to the other provision and vice versa so as to make the provision consistent with the o....
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....ry corollary is that once the other offence is connected with the offence under the TADA and if the accused is charged under the Code and tried together in the same trial, the Designated Court is empowered to convict the accused for the offence under any other law, notwithstanding the fact that no offence under TADA is made out. This could be the only intendment of the legislature. To hold otherwise, would amount to rewrite or recast legislation and read something into it which is not there. Counsel also urged that the rigours of Section 12 is discriminatory and attract the wrath of Articles 14 and 21 of the Constitution as it empowers the Designated Court to try and convict the accused for the offences committed under any other law along with the offences committed under the TADA thereby depriving the rights available to the accused under the ordinary law. In our opinion, this contention is misconceived. It is trite law that Article 14 prohibits discrimination, but allows reasonable classification based on intelligible differentia, having nexus with the object sought to be achieved. The object sought to be achieved by introducing Section 12 is to take care of the offence connec....
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....re deliberately uses the words "after taking cognizance of any offence" to mean that Section 18 would be attracted only at the stage where the Designated Court takes cognizance of offence i.e., after the investigation is complete and charge-sheet is filed. The provisions of Section 209 Cr.P.C. to which the counsel for the appellants sought to rely are not in pari materia with Section 18. In Section 209 Cr.P.C. the words "after taking cognizance" are absent conspicuously. Section 18 is a filtered provision. The Section is attracted only at a stage the Designated Court takes cognizance of offence. It is at the stage of taking cognizance, the Designated Court is expected to scan the documents and evidence collected therewith, if the Designated Court is of opinion that the offence is not triable by it, it shall, then 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 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. In our view, there is no ambiguity in the language used in Section 18. If th....