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Judgment
425 paragraphs · 9,753 wordsThis petition coming on for orders on Friday, the 3rd and Monday the 6th days of January, 1992, upon perusing the petition and the orders of
the Designated Court under T.A.D.A. Act and the records in the case and upon hearing the arguments of Mr. N. Ganapathy, Advocate for the
petitioner and of Mr. I. Subramanian, Additional Public Prosecutor, on behalf of the State/respondent, and having stood over for consideration till
this day the court made the following order :-
This petition is filed under Art. 227 of the Constitution of India against an order passed by the Designated Court, u/S. 20(8) of the Terrorist and
Disruptive Activities (Prevention) Act, 1987 (Act No. 28 of 1987), refusing to enlarge the petitioner on bail.
The facts leading to the filing of the petition are :
The petitioner is a practicing advocate of this Court with a standing of 11 years at the Bar. He has been appearing for a group called Liberation
Tigers of Tamil Ealam of Sri Lanka (in short known as ''L.T.T.E.'') defending its members in various Courts in Tamil Nadu since 1983. He has
been appearing even in the Designated Court which rejected his bail application. One Padmanabha was the leader of the Ealam People
Revolutionary Front (in short ''E.P.R.L.F.'') which is a group against L.T.T.E. L.T.T.E. has been planning to annihilate the said Padmanabha. The
said Padmanabha and others came to Indian leaving Sri Lanka and stayed at Zackriah Colony, Kodambakkam, Madras-24. According to the
First Information Report filed by the Investigation Officer on the file of the XI Metropolitan Magistrate, Saidapet, Madras on 19-6-1990 a killer
squad consisting of Sivarasan (since deceased), David, Daniel, Chilipan alias Dhilp, Ravi and Gundu Santhan (since deceased) armed with deadly
weapon such as AK-47 rifles and hand grenades, trespassed into the house of the said Padmanabha and 14 others by opening fire with AK-47
rifles and exploding hand grenades made with RDX explosive substance and terrorised the general public of the locality. After the occurrence, the
main accused fled away to Sri Lanka via. Trichy and Tanjore. One Sundar who is a resident of Zackriah Colony, Kodambakkam, Madras, Went
to Kodambakkam Police Station and gave a report on the same day about the occurrence based on which a case in Crime No. 1205 of 1990 was
registered by R. 2 Kodambakkam Police Station u/Ss. 147, 148, 448, 324, 326, 427, 307, 302 and 120B of the IPC and S. 25 of Indian Arms
Act and S. 5 of the Explosives Act. The said case was originally investigated by the Madras City Crime Branch Police. In the month of May 1991,
the former Prime Minister Rajiv Gandhi was assassinated and the identity of the accused concerned in this case came to light by the confessional
statement given by one Santhan alias Suthenthiraraja u/S. 15 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred
to as ''T.A.D.A.'') and the said Santhan was arrayed as an accused in this case as well as in the assassination case of the former Prime Minister
Rajiv Gandhi. The said case was transferred to ''Q'' Branch, C.I.D., Madras for further investigation. Since the abovementioned killer squad not
only murdered Padmanabha and 14 others but also terrorised the general public of Zackriah colony, Kodambakkam, by firing indiscriminately with
AK-47 rifles and exploding hand grenades, the Deputy Superintendent of Police, ''Q'' Branch C.I.D. Madras, who was investigating the case in
Cr. No. 1205 of 1990 has sent an intimation to XI Metropolitan Magistrate''s Court, Saidapet, Madras, on 16-8-1991 about the inclusion of an
offence u/S. 3 of TADA Act. Thereafter the said First information Report in Crime No. 1205 of 1990 and other connected records were
transferred to the Designated Court constituted under TADA Act in Madras for further proceedings and the said case is pending investigation.
The petitioner herein was arrested on 25-11-1991 at his residence on a non-bailable warrant issued by the Designated Court and he was
produced before the Designated Court with remand filed u/s 167, Cr.P.C. read with Session 20(4)(b) of TADA Act, 1987. It is stated in the said
report that one Gundu Santhan alias Santhan was involved in the Padmanabha murder case and he has been proclaimed as an offender by the
Designated Court under TADA Act. On 1-11-1991, accused A. 18 one Vasanthan was arrested in the said Padmanabha murder case and an
unsigned letter has been seized from his possession on and in para 3 of the letter, it is stated as follows :
He has stated that the said letter was written by the petitioner herein. On 10-11-1991, a xerox copy of the letter, alleged to have been written by
the petitioner was received through post by the Superintendent of Police ''Q'' Branch, C.I.D., Madras and both the letters were sent to the
document expert. The document expert opined that both letters were written by the one and the same person and as such it is stated in the remand
report that it is evident that the petitioner herein had abetted accused Gundu Santhan alias Santhan to escape from the cultches of law. It is also
stated therein that investigation has revealed that the petitioner herein, who has been arrayed as Accused A-27, was involved in the murder case of
Padmanabha and others. A request was made the the petitioner may be ordered to be remanded to judicial custody for a period of 30 days. The
petitioner preferred Crl. M.P. No. 193 of 1991 in Cr. No. 1205 of 1990 before the Designated Court, u/s 20(8) of the TADA Act and Section
437 of Cr.P.C. It is stated in that petition that he has been falsely implicated in the above Crime No. 1205 of 1990 with ulterior motive of
threatening the advocates who appear for any of the accused in the abovementioned Padmanabha murder case as well as in the murder case of
Rajiv Gandhi. It is also stated in the said petition that the petitioner herein has appeared as counsel for some of the accused in both cases
mentioned above and that there is no material to connect him with the crime in Crime no. 1205 of 1990. It is further stated in the said petition, that
the petitioner is an advocate by profession, that he is a permanent resident of the city of Madras and that there is no likelihood of for committing
any offence while he is on bail. This was opposed by the learned Special Public Prosecutor, who is appearing for cases under TADA Act.
On behalf of the petitioner, it was contended before the Designated Court under TADA Act that there is no justification to invoke the provisions
of the TADA Act. The learned counsel relied upon the judgments of the Supreme Court in Usmanbhai Dawoodbhai Memon and Others Vs. State
of Gujarat, and in Niranjan Singh Karam Singh Punjabi and Others Vs. Jitendra Bhimraj Bijja and others, . It was also contended that the
provisions of the TADA Act, 1987 should not be invoked, if the activities of the petitioner can be checked and controlled under ordinary penal
law. The said contention of the learned counsel appearing for the petitioner was turned down by the Designated Court stating that there is no force
in saying that the menace of L.T.T.E. has been curtailed or contained now, and the ordinary law of the land is sufficient and the extraordinary law
(i.e.) the TADA Act should not be invoked in this case. Coming to the question as to whether there are reasonable grounds to believe that prima
facie the petitioner herein is innocent of the offences, it was contended on behalf of the petitioner before the Designated Court that the materials
releid on by the learned Special Public Prosecutor, an unsigned and undated letter purported to have been written by the petitioner to another
accused Gundu Santhan alias Santhan and the confessional statement of Vasanthan, another accused, were not materials, at all, since the letter
stated to be in the letter-head of the petitioner (which was produced before me) which was utilised for comparison with the unsigned letter was not
at all written by the petitioner. It was further contended before the Designated Court that there is suspicion that it had been fabricated to rope in the
petitioner as an accused when the genuineness of the letter dated 26-6-1990 was shrouded in mystery. It was further contended that, even
assuming that the unsigned letter was written by the petitioner, it is privileged document, since it was written by a lawyer to his client and it could
not be used against the petitioner and that the confessional statement of the accused Vasanthan cannot be relied on for declining bail to the
petitioner herein. It was further contended that Section 3(3) of the TADA Act would not be attracted as far as the petitioner is concerned, since an
abettor should have aided or assisted the commission of an offence under TADA Act. The Designated Court, after perusing the materials on
record and on hearing the arguments of the learned counsel on both sides, came to the conclusion that there are materials to show prima facie that
the petitioner herein has abetted or advised the accused Gundu Santhan alias Santhan to remain absconding and to escape from the clutches of law
and thereby prima facie, the petitioner herein is not innocent of the offence of abetting u/s 3(3) of the TADA Act, if not or the offence of harbouring
u/s 3(4) of the TADA Act, in view of the difficulty in defining the term ""harbouring"" under the TADA Act. The Designed Court has further found
that the confessional statement of Vasanthan, who is an accused in Crime No. 1205 of 1990, would prima facie establish that the petitioner herein
has advised the said Gundu Santhan alias Santhan to remain absconding and such advice would attract the provision u/s 3(3) of the TADA Act
and as such has come to the conclusion that an evaluation of the materials available on record would clearly revel the prima facie involvement of the
petitioner herein in the offence in Crime No. 1205 of 1990 of abetting or advising a terrorist in this case. The Designated Court has also come to
the conclusion that the petitioner herein is not innocent of the offence with which he is charged and that he cannot be enlarged on bail. Aggrieved
by the said order, the petitioner is before me.
Mr. N. Ganpapathy, the learned counsel appearing for the petitioner, took me through the various provisions of the Terrorist and Disruptive
Activities (Prevention) Act, 1987 and contends that on admitted facts, no offence is made out against the petitioner herein either u/s 3(3) or u/s
3(4) of the TADA Act. According to the learned counsel, the only question which has to be considered in this case is whether the petitioner can be
said to have committed any offence either u/s 3(3) or u/s 3(4) of the TADA Act. He further contends that on admitted facts, there are reasonable
grounds for believing that the petitioner is not guilty of any alleged offence u/s 3(3) of the TADA Act. The learned counsel points out that the
terrorist act which is supposed to have been committed in Crime No. 1205 of 1990 was on 19-6-1990, that the unsigned note which has been
recovered from the said Vasanthan is admittedly by the end of Sept. 1991, and that it cannot be released to an offence committed on 19-6-1990.
According to the learned counsel to hold the the petitioner herein has committed an offence u/s 3(3) of the TADA Act, it should be shown that the
petitioner has abetted a terrorist act, and that to say that the petitioner has committed and offence u/s 3(4) of the TADA Act, some physical overt
act is necessary with his act of ""harbouring"" a terrorist. He contends that first of all, there should be materials to show that the petitioner herein is a
terrorist and then only after considering all these things on this aspect of the Court can give its findings. Learned counsel appearing for the petitioner
further contends that the materials on record do not show a prima facie case against the petitioner herein and as such the finding given by the
Designated Judge are perverse and based on ''no evidence''. The learned counsel relies upon the Judgment of the Supreme Court in Usmanbhai
Dawoodbhai Memon and Others Vs. State of Gujarat, to show that at what point of time, stringent provisions of the TADA Act can be enforced.
He further relies upon another judgment of the Supreme Court which is reported in Babu Singh and Others Vs. State of U.P., apart from another
judgment in Kashmira Singh Vs. The State of Punjab, regarding the grant of bail. The learned counsel points out that, even according to the
confessional statement of the said Vasanthan, the unsigned and undated letter has not reached the said Gundu Santhan alias Santhan at all. Relying
upon Section 129 of the Evidence Act, the learned counsel appearing for the petitioner contends that, even assuming that the petitioner has written
the unsigned letter, it should be treated as a privileged document written by an advocate as an advice to a client, and that on that basis the
petitioner cannot be roped in under the provisions of the TADA Act. The sum and substance of the arguments of Mr. Ganapathy, the learned
counsel appearing for the petitioner, is that the petitioner has not committed any offence under any of the provisions of the TADA Act, that the
entire prosecution story has been built against the petitioner herein only on the basis of an unsigned and undated letter of the petitioner, confessional
statement of the said Vasanthan and on a xerox copy of the letter dated 26-6-1990 received by the Superintendent of Police, Q Branch, C.I.D.
Madras, which is alleged to be in the petitioner''s handwriting, and that the Designated Court has erred in relying upon the aforesaid materials and
has given a perverse finding stating that the petitioner has committed offence of abetting u/s 3(3) read with 2(a)(1)(ii) of the TADA Act. The
learned counsel further contends that there are no materials at all to come to such a conclusion. The learned counsel further contends that the
releasing of the petitioner on bail is even though the subjective of the satisfaction of the Designated Court on the admitted facts on materials, it must
be reasonable. He further states that there is nothing wrong on the part of the petitioner, who appears for L.T.T.E. members, to advise has clients
in such a manner and that the petitioner cannot be roped in this case as an accused for the offence of abetment. The learned counsel categorically
points out the fact that the unsigned letter has not at all reached the said Gundu Santhan alias Santhan, even according to the confessional statement
of the said Vasanthan.
Per contra, Mr. I Subramaniam, the learned Special Public Prosecutor for cases under TADA Act, argues that on a reading of the said unsigned
and undated letter along with the confessionbal statement of the said Vasanthan, it is clear that the petitioner herein has committed an offence u/s
3(3) of the TADA Act. The learned Special Public Prosecutor fairly states that, if the said unsigned letter is taken as a professional communication,
the position will be different. The learned Special Public Prosecutor argues that this court has no jurisdiction to grant bail when the Designated
Court has rejected the application for bail. He relies upon the decision of the Supreme Court in Usmanbhai Dawoodbhai Memon and Others Vs.
State of Gujarat, and points out that the Supreme Court in that case has held that the High Court cannot grant bail u/s 439, Cr.P.C. and that the
provisions with regard to bail are ousted by provisions of the TADA Act. The learned Special Public Prosecutor fairly brought to the notice of this
Court, the decision in Ayubkhan Kalandarkhan Pathan v. State of Gujarat (1990) 1 Crimes 183 with regard to the grant of bail under the TADA
Act. Referring to Sections 2(a)(1), 3(3) and 3(4) of the TADA Act, the learned Special Public Prosecutor strenuously contends that the petitioner
has committed an offence of abetting and the Designated Court has rightly came to the conclusion that the petitioner should not be enlarged on bail.
He further contends that this court sitting under Art. 227 of the Constitution of India should not entertain such a petition, when a bail application has
been rejected by the Designated Court and the only remedy available to the petitioner is to approach the Supreme Court invoking Art. 136 of the
Constitution of India, if so advised.
I have given my careful consideration to the arguments of Mr. N. Ganapathy, the learned counsel appearing for the petitioner and of Mr. I.
Subramaniyam, the Special Public Prosecutor, appearing for the respondent. Before dealing with the facts of the case, for the purpose of deciding
the issue involved on the facts and circumstances of the case, it is necessary to refer to the provisions of the TADA Act. Sub-section (1) of Section
3 of the TADA Act which gives meaning to the ""terrorist act"" is as follows :
............. Whoever with intent to overawe the Government as by law establishment or to strike terror in the people or any section of the people or
to alienate any section of the people or to adversely affect the harmony amongst different sections of the people does any act or thing by using
boms, dynamite or other explosive substances or inflammable substances or fire-arms or other lethal weapons or poisons or noxious gases or other
chemicals or by any other substances (whether biological or otherwise) of a hazardous nature in such a manner as to cause or as is likely to cause,
death of or injuries to, any person or persons or loss of, or damage to, or destruction or property of disruption of any supplies or services essential
to the life of the community or detains any person and threatens to kill or injure such person in order to compel the Government or any other
person to do or abstain from doing any act, commits a terrorist act ................
Sub-section (2) of Section 3 reads as follows :-
............... Whoever commits a terrorist act, shall - (i) if such act has resulted in the death of any person, be punishable with death or imprisonment
for life and shall also be liable to fine;
(ii) in any other case be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for
life and shall also be liable to fine ...........
Section 19(1) of the TADA Act reads thus :
(1) Notwithstanding anything contained in the Code, an appeal shall lie as a matter of right from any judgment, sentence or order, nor being an
interlocutory order, of a Designated Court to the Supreme Court both on facts and on law .............
Sub-section (2) of Section 19 of the TADA Act states thus :
(2) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, setence or order including an interlocutory order of a
Designated Court ...........
Sub-section (8) of Session 20 of the TADA Act which is important for deciding the issue that arises for consideration in this case, is to the
following effect :
(8) Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act or any rule made thereunder shall,
if in custody, be released 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, 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 ..........
Sub-section (9) of Section 20 of the TADA Act provides that the limitation on granting of bail specified in the abovementioned sub-section (8) are
in addition to the limitations under the code or any other law for the time being in force on granting of bail. A reading of the abovementioned
provisions of the TADA Act clearly shows that if the Designated Court has refused to grant bail, the High Court has no jurisdiction to entertain
such application either u/s 439 of the Code of Criminal Procedure or u/s 482 of the Code of Criminal Procedure. It has been held so in Usmanbhai
Dawoodbhai Memon and Others Vs. State of Gujarat, . It is also to be seen that in the above mentioned case, the Supreme Court has interferred
with the orders of the Designated Court dismissing the application for bail and directed the Designated Court to consider the case on merits as to
whether it falls within the purview of Section 3 and/or Section 4 of the TADA Act. In the above mentioned case, the Supreme Court has also
rejected the contention advanced by the learned Counsel appearing on behalf of the State Government that the impugned orders passed by the
Designated Courts therein refusing to grant bail were not interlocutory orders and therefore apealable u/s 19(1) of the TADA Act. The
abovementioned decision was rendered by the Supreme Court on Special Leave Petitions on the orders passed by various Designated Courts
refusing to grant bail. Equally so, the Supreme Court in State of Maharashtra Vs. Anand Chintaman Dighe, as well as the Gauhati High Court in
Shri Sampathmall Jain v. The State of Assam 1991 (3) Crimes 319 interfered with the orders of the Designated Courts when bail was granted. As
such, it is clear from the abovementioned decisions, that the Supreme Court has interferred with the orders of Designated Courts either granting or
refusing the bail, in petitions under Art. 136 of the Constitution of India. A careful reading of the abovementioned decisions of the Supreme Court
do not show that the jurisdiction of this under Art. 227 of the Constitution of India has been taken away, as contended by the learned Special
Public Prosecutor. In fact, in Usmanbhai Dawoodbhai Memon and Others Vs. State of Gujarat, the Supreme Court has observed as follows :
.......... At the outset, Shri. Poti, learned counsel appearing for the State Government with his usual fairness, unequivocally accepted that the
provisions of the Act do not take away constitution remedies available to a citizen to approach the High Court under Art. 226 or Art. 227 or move
this Court by a petition under Art. 32 for the grant of an appropriate writ, direction or order. It must necessarily follow that a citizen can always
move the High Court under Art. 226 or Art. 227 or this Court under Art. 32 challenging the constitutional validity of the Act or its provisions on
the ground that they offend against Arts. 14, 21 and 22 or on the ground that a notification issued by the Central Government or the State
Government u/s 9(1) of the Act constituting a Designated Court for any area or areas or for such case or class or group of cases as specified in the
notification was a fraud on powers and thus constitutionally invalid .........
In Ayubkhan Kalandarkhan Pathan v. State of Gujarat 1990 (1) Crimes 183 a Division Bench of the Gujarat High Court has held that a petition
under Art. 226 or Art. 227 of the Constitution is maintainable and the High Court is empowered to examine the question as to whether the
provisions of the TADA Act would apply or not especially when the TADA Act is drastic measure and it should not be ordinarily resorted to
unless the Government''s law enforcing machinery fails. So, it is clear that in the absence of any such provisions taking away the powers of the High
Court under Art. 226 of the Constitution of India for entertaining any such petitions, it cannot be said that such powers of this Court under Art.
226 or Art. 227 of the Constitution have been taken away by an Act of Parliament. In fact, no such provision has been made in the TADA Act
also. The abovementioned decision, has been followed by the Guahati High Court in shri Sampathmall Jain v. The State of Assam 1991 (3) Crimes
319, in which the learned single Judge of the Gauhati High Court come to the conclusion that under Art. 226 of the Constitution this Court can
interfere with an order of Designated Courts striking down the orders for want of reasoned orders which are the basic requirements of a judicial
order. It has been also held in the abovementioned case that the Constitutional powers of this Court under Arts. 226 and 227 of the Constitution
are always available and they cannot be taken by the provisions of the TADA Act. In Umaji Keshao Meshram and Others Vs. Radhikabai and
Another, the Supreme Court has observed at p. 1317 as follows :-
.......... Under Art. 226 the High Courts have power to issue directions, orders and writs to any person or authority including any Government.
Under Art. 227 every High Court has the power of Superintendence over all Courts and Tribunals throughout the territory in relation to which it
exercises jurisdiction.
........... The power to issue writs is not the same as the power of Superintendence. By no stretch of imagination can a writ in the nature of habeas
corpus or mandamus or quo warranto or prohibition or certiorari be equated with the power of Superintendence. These are writs which are
directed against persons, authorities and the State. The power of Superintendence conferred upon every High Court by Art. 227 is a supervisory
jurisdiction intended to ensure that subordinate Courts and Tribunals act within the limits of their authority and according to law. The orders,
directions and writs under Art. 226 are not intended for this purpose and the power of Superintendence conferred upon the High Courts by Art.
227 is in addition to that conferred upon the High Courts by Art. 226. Though at the first blush it may seem that a writ of certiorari or a writ of
prohibition partakes of the nature of Superintendence inasmuch as at times the end result is the same, the nature of the power to issue these writs in
different from the supervisory or Superintending power under Art. 227. The powers conferred by Arts. 226 and 227 are separate and distinct and
operate in different fields. The fact that the same result can at times be acheived by two different processes does not mean that these two
processes are the same .......
In the very same judgment, the scope of the power of this court under Art. 227 of the Constitution has been succinctly put at page 1318 as follows
:
........... It is equally well-settled in law that a proceeding under Art. 227 is not an original proceeding. In this connection, we need refer to only
two decisions of this Court. In Ahmedabad Mfg. and Calico Ptg. Co. Ltd. Vs. Ram Tahel Ramnand and Others, , this Court said :
Article 227 of the Constitution no doubt does not confer on the High Court power similar to that of an ordinary court of appeal. The material part
of this Article substantially reproduces the provisions of S. 107 of the Government of India Act, 1915, except that the power of Superintendence
has been extended by this Article to Tribunals as well. Section 107 according to preponderance of judicial opinion clothed the High Courts with a
power of judicial Superintendence apart from and independently of the provisions of the other laws conferring on then revisional jurisdiction. The
power under Art. 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the
subordinate Courts and Tribunals within the bounds of their authority and, not for correcting mere errors : See : Waryam Singh and Another Vs.
Amarnath and Another, . Under Art. 226 of the Constitution it may in this connection be pointed out the High Court does not hear an appeal or a
revision : that Court is moved to interfere after bringing before itself the record of a case decided by or pending before Court, a Tribunal or an
authority, within its jurisdiction.
The origion and nature of the power of Superintendence conferred upon the High Courts by Art. 227 was thus stated by this court in Waryam
Singh and Another Vs. Amarnath and Another, . It reads as follows at page 217 :
The material part of Art. 227 substantially reproduces the provisions of Section 107 of the Government of India Act, 1915, except that the power
of Superintendence has been extended by the Article also to Tribunals ........ The only question raised is as to the nature of the power of
Superintendence conferred by the Article. Reference is made to clause (2) of the Article in support of the contention that this article only confers
on the High Court, Administrative Superintendence over the Subordinate Courts and Tribunals. We are unable to accept this contention because
Clause (2) is expressed to be without prejudice to the generality of the provisions in Clause (1). Further, the preponderance of judicial opinion in
India was that Section 107 which was similar in terms to Section 15 of the High Courts Act, 1861, gave a power of judicial Superintendence to
the High Court apart from the independently of the provisions of other laws conferring revisional jurisdiction on the High Court. In this connection it
has to be remembered that Section 107 of the Government of India Act, 1915, was reproduced in the Government of India Act, 1935, as Section
Section 224 of the 1935 Act, however, introduced sub-section (2), which was new, providing that nothing in the section should be construed
as giving the High Court any jurisdiction to question any judgment of any inferior Court which was not otherwise subject to appeal or revision. The
idea presumably was to nullify the effect of the decisions of the different High Courts referred to above. Section 224 of the 1935 Act has been
reproduced with certain modifications in Art. 227 of the Constitution. It is significant to note that sub-section (2) to Section 224 of the 1935 Act
has been omitted from Art. 227. This significant omission has been regarded by all High Courts in India before whom this question has arisen as
having restored to the High Court the power of judicial Superintendents it had u/s 15 of the High Courts Act. 1861, and Section 107 of the
Government of India Act, 1915"".........
Recently, the Supreme Court in Mani Nariman Daruwala alias Bharucha (Deceased) through Lrs. and Others Vs. Phiroz N. Bhatena and Others,
considering the scope of Art. 227 of the Constitution of India observed as follows : (at p. 143).
...... In the exercise of jurisdiction under Art. 227 the High Court can set aside or ignore the findings of fact of an inferior court or tribunal if there
was no evidence to justify such a conclusion and if no reasonable person could possibly have come to the conclusion which the court or tribunal
has come to, or in other words it is a finding which was perverse in law. Except to the limited extent indicated above the High Court has no
jurisdication to interfere with the finding of fact .......
So, considering the decisions mentioned above, with regard to the scope of the power of this Court under Art. 227 of the Constitution to interfere
with the any orders of the lower subordinate Courts and Tribunals, like that of the one which is impugned before me, I am of the view that this
court has got ample jurisdiction to keep the subordinate courts and Tribunals within their bounds, especially when such an order has been passed
shocking the judicial conscience and also when it is passed on no evidence. So, I am not able to agree with the contention of the learned Special
Public Prosecutor that the petitioner has to seek his remedy only before the Supreme Court and that this Court is helpless to come to the aid of the
petitioner against an order of the Designated Court refusing to grant bail to him. So, I am of the firm view that this court has got ample jurisdiction
under Art. 227 of the Constitution to interfere with the order of the Designated Court under certain circumstances, which is impugned before me.
Now, coming to the facts of the case as available on records, they are simple. The petitioner herein is a practising advocate of the Madras Bar.
It is an admitted fact that he appears for members belonging to L.T.T.E. in various Courts including the Designated Court. An unsigned and
undated note is recovered from one Vasanthan and the said Vasanthan has given his confessional statement. The said recovery was made on 1-
11-1991. A xerox copy of the letter dated 26-6-1990 alleged to have been written by the petitioner herein has been received by the
Superintendent of Police, Q branch C.I.D., Madras. The said letter is alleged to have been written to one Kittu, a L.T.T.E. leader by the
petitioner. The said letter was received on 10-11-1991. Based on the confessional statement of the said Vasanthan that the unsigned and undated
letter has been given to him by the petitioner to be handed over to the said Gundu Santhan alias Santhan, a charge u/s 3 of the TADA Act has
been framed against the petitioner.
On admitted facts, whether an offence has been made out prima facie against the petitioner herein and whether the conclusion arrived at by the
Designated Court is right, is the next questions to be decided. Considering the fact that the matter is pending before the Designated Court and
having given consideration of the evidence available on the materials on record, what all this Court can decide is whether prima facie an offence is
made out under the TADA Act against the petitioner for refusing to release the petitioner on bail. The power to grant bail is found in sub-section
(8) of Section 20 of the TADA Act as extracted in the earlier portion of this order. To grant bail to an accused, the Designated Court has to be
satisfied that there are reasonable grounds for believing that the said person is not guilty of such offence and he is not likely to commit any offence
while on bail. These limitations are in addition to the limitations contained in the Code of Criminal Procedure or any other law for the time being in
force for granting of bail. On the facts of this case, it has to be seen whether the Designated Court has given a correct finding to refuse bail to the
petitioner herein. In my view, the conclusion arrived at by the Designated Court is not based on any evidence and is totally perverse. The said
Gundu Santhan alias Santhan has been proclaimed as an offender only on 7-10-1991 and the incident, that is, the murder of Padmanabha had
occurred in the month of June 1990. The said Vasanthan who was arrested on 1-10-1991 and has given a confessional statement from whom an
unsigned and undated letter has been recovered. The said unsigned letter has been produced before me and I have perused it minutely. The said
unsigned letter alleged to have been sent by the petitioner reads as follows :
The said Vasanthan has stated in his confessional statement that the said letter has been written by the petitioner herein (in Crime No. 1205 of
1990) to hand it over to Gundu Santhan alias Santhan to remain absconding. On 10-11-1991, a xerox copy of the letter said to have been written
by the petitioner to the said Kittu on 26-6-1990 was received through post by the Superintendent, ''Q'' Branch, C.I.D. Madras. Both these letters
were sent to document expert and he opined that both were written by one and the same person. On this basis, the Designated Court has come to
the conclusion that the petitioner has abetted another accused Gundu Santhan alias Santhan to escape from the clutches of law. Even a cursory
perusal of the facts narrated above and the materials available on record would show that the said unsigned and undated letter has not at all
reached the said Gundu Santhan alias Santhan. It is also seen from the confessional statement of the said Vasanthan, (which has been produced
before me), that the said Vasanthan has not at all met the said Gundu Santhan alias Santhan. So, it is clear that the petitioner herein, as an
advocate, has given a piece of advice to his client Gundu Santhan alias Santhan with regard to the future course of action that he has to remain
absconding for some time. Even assuming for a moment that the petitioner has written the said unsigned letter, I am not able to accept that the
petitioner has committed an offence u/S. 3(3) of the TADA Act. The argument was that the offence u/S. 3(3) of the TADA Act is made out apart
from ''harbouring'' of an accused terrorist under sub-sec. (4) of S. 3 of the TADA Act. Even the Designated Court has got a doubt on this aspect
and has not at all given a finding on this aspect, except to discuss the matter and leave it at that. So, on the materials available on record and the
evidence, can it be said that the petitioner is an abettor under the TADA Act ? In the remand report it is stated that from the fact that both letters
were proved to have been written by one and the same person, it is evident that the petitioner had abetted accused Gundu Santhan alias Santhan
to escape from the clutches of law. The abovesaid statement alone is enough to say that the petitioner herein is innocent. When the said unsigned
letter has not at all reached the accused Gundu Santhan alias Santhan, how can anybody say that the petitioner has abetted accused Gundu
Santhan alias Santhan to escape from the clutches of law. I am to able to accept the argument of the learned Special Public Prosecutor based on
the term ""abet"" which occurs in S. 2(1)(a) of the TADA Act, that communication or association or class of persons is enough for making out an
offence u/S. 3(3) of the TADA Act. I do not see that the ingredients of S. 3(3) or 3(4) of the TADA Act are satisfied in the case on hand. In my
view, surely the petitioner herein cannot be said to have abetted the commission of an offence under the TADA Act, more so, a terrorist act. So, I
am of the view, that the conclusion arrived at by the Designated Court against the petitioner is not based on any evidence. I am aware of the extent
of the jurisdiction of this Court viz. that this is not an appellate Court. Yet, when the findings of the subordinate courts and Tribunals are perverse, it
is open to this Court to interfere with the same under Art. 227 of the Constitution. On the basis of the materials available on record and on
evidence and also on the admitted facts of the case, no reasonable person can come to the conclusion that the petitioner has committed an offence
under the TADA Act. In my view, there is no material to come to the conclusion for the Designated Court or to get satisfied that there are no
reasonable grounds to believe that the petitioner herein is not an innocent person.
In Raja Anand Brahma Shah Vs. State of Uttar Pradesh and Others, the opinion of the State Government u/S. 17(4) of the Land Acquisition
Act has been considered. In that case, the Supreme Court has held that the opinion of the State Government can be challenged as ultra vires in a
Court of law, if it could be shown that the State Government has never applied its mind to the matter. In R. v. Australian Stevedoring Industry
Board (1952) 88 CLR 100 the High Court of Australia was called upon to review the conduct of a board empowered to cancel the registration of
an employer of dock labour if ""satisfied"" that he was unfit to be registered or had so acted as to interfere with the proper performance of
stevedoring work. It was held in that case that the High Court was entitled to aware prohibition against the board if the board was acting without
any evidence to support the facts upon which its jurisdiction depended, or if it was adopting an erroneous test of the employer''s liability to
cancellation of this registration, or if it appeared likely to go outside the scope of its statutory discretion. Applying the principle mentioned
hereinabove to the facts of this case, I am satisfied that the Designated Court has not applied its mind under sub-sec. (8) of S. 20 of the TADA
Act, when considering the application of the petitioner for the grant of bail.
The principles with regard to granting of bail have been succinctly put by Krishna Iyer, J. in Babu Singh and Others Vs. State of U.P., . In that
case, though the learned Judge was considering the question of granting of bail under the provisions of Cr.P.C., yet in any view the principles laid
down by the learned Judge have to be taken note of. In that case, when considering the meaning of bail, the learned Judge has held as follows (at
p. 529) :
....... The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue, is one of liberty, justice,
public safety and burden on the public treasury all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial
process. As Chamber Judge in this summit court I had to deal with this uncanalised case flow, adhoc response to the docket being the flickering
candle light. So it is desirable that the subject is disposed of on basic principle, not improvised brevity draped as discretion. Personal liberty,
deprived when bail is refused, is too precious a value of our constitutional system recognised under Art. 21 that the crucial power to negate it is a
great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. To glamorise impressionistic
orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or
convict is fundamental, suffering lawful eclipse only in terms of procedure established by ''law''. The last four words of Art. 21 are the life of that
human right .......
The learned Judge in the abovementioned decision went to the extent of explaining what is ''judicial discretion'' in the bail context and observed as
follows (at p. 529) :
....... What, then is ''judicial discretion'' in this bail context ?. In the elegant words of Benjamin Cardozo, ""The judge, even when he is free, is still
not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He
is to draw his inspiration from consecreted principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to
exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to ''the primordinal necessity of order
in the social life.'' Wide enough in all conscience is the field of discretion that remains."" (The Nature of Judicial Process - Yale University Press
1921). Even so it is useful to notice the tart terms of Lord Camden that ""the discretion of a judge is the law of tyrants; it is always unknown, it is
different in different men; it is casual, and depends upon constitution, temper and passion. In the best it is often times caprice; in the worst it is
every vice folly and passion to which human nature is liable .......
(1 Bovu. Law Dict. Rawles III Revision p. 685 quoted in judicial Discretion National College of the State Judiciary, Redo, Navada p. 14). ""Some
jurists have regarded the term ''judicial discretion'' as a misnomer. Notertheless, the vesting of discretion is the unspoken but inescapable silent
command of our judicial system, and those, who exercise it will remember that :
discretion, when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humor; it must not be
arbitrary, vague and fanciful, but legal and regular.
(Attributed to Lord Mansfield Tinglay v. Dolby, 14 NW 146).
An appeal to a judge''s discretion is an appeal to his judicial conscience. The discretion must be exercised, not in opposition to, but in accordance
with, established principles of law."" (Judicial discretion, (ibid) p. 33). Ultimately, the learned Judge has held that the test should be applied by
reference to the following considerations :
(1) The nature of the accusation .......
(2) The nature of the evidence in support of the accusation .......
(3) The severity of the punishment which conviction will entail .........
(4) Whether the sureties are independent, or indemnified by the accused person ......
Considering the principles laid down by the learned Judge in the above mentioned case, I am of the view that this is a fit case where judicial
discretion has to be exercised in favour of the petition herein.
Having held that the Designated Court has come to a wrong conclusion in rejecting the bail application, on the materials available on record, it
is necessary to consider the special circumstances of this case, having regard to the fact that the petitioner is a practising advocate, who belongs to
a noble profession. Under S. 29 and 30 of the Advocates'' Act 1961 (Act 25 of 1961) a right to practice is given to an advocate. Under S. 16(3)
and 49(1)(g) of the Act, Rules are made. Under the Bar Council Rules, especially under Rules 15 and 17, an advocate cannot commit breach of
obligation imposed by S. 126 of the Evidence Act. Under R. 46 an advocate has got a duty to render legal aid. Under S. 126 of the Evidence Act,
no barrister, attorney, pleader or vakil can at any time be permitted without his client''s express consent, to disclose any communication made to
him in the course and for his purpose of his employment as such barrister etc. It is true that this section will not apply to a communication being
made in furtherance of an illegal purpose. S. 129 of the Evidence Act speaks about confidential communications with legal advisers which reads as
follows :
.......... No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal
professional adviser, unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may appear
to the court necessary to be known in order to explain any evidence which he has given, but no others .....
So a conjoint reading of Ss. 126 and 129 of the Evidence Act clearly shows that, even assuming that the said unsigned and undated letter is written
by the petitioner herein, it cannot be used against him in evidence, taking into consideration that the petitioner herein is an advocate, who appeared
for the L.T.T.E. members before various Courts including the Designated Court, which has rejected the bail application of the petitioner, as stated
by Mr. N. Ganapathy, the learned counsel appearing for the petitioner.
With regard to the Professional Ethics of an Advocate, it is worthwhile to refer to a decision of the Kerala High Court in V. Muraleedharan
Nair Vs. N.J. Antony and Another, wherein the learned single Judge of that Court has extracted the lectures of Justice Sundaram Aiyar of this
Court on Professional Ethics to Apprentices which runs as follows (at page 635) :
......... We may say no client should be shunned, because he is opposed to a man of influence, or because he has incurred special approbrium, or
is opposed to the officers of Government, or to society at large. He may be a noted dacoit; he may be one who has done disservice to the
community in many ways. It may be that the client - he or she - may be an undesirable person. I have no hesitation in telling you that that alone
should not be a reason for refusing your help to a litigant. You may sometimes incur social approprium by doing so, but that is misfortune which
you must be prepared to face. At a meeting in Carnarvon some years ago a resolution was passed calling upon temperance men not to support any
candidate who acts professionally as counsel for the liquor trade at licensing stations. This was condemned by the English Law Times as interfering
with the duties of an advocate. The public unfortunately do sometimes identify an advocate with the client for whom he appears .........
A passage in Maneka Sanjay Gandhi and Another Vs. Rani Jethmalani, can be usefully referred to in which speaking for the Bench, Krishna Iyer,
J. made the following observation :
........ The sophisticated process of a criminal trial certainly require competent legal service to the present a party''s case. If an accused person, for
any particular reason, is virtually deprived of this facility, an essential aid to fair trial fails. If in a certain court the whole Bar, for reasons of hostility
or otherwise, refuses to defend an accused person - an extraordinary situation difficult to imagine, having regard to the ethics of the profession - it
may well be put forward as a ground which merits this Court''s attention. Popular frenzy or official wrath shall not deter a member of the Bar from
offering his services to these who wear unpopular names or unpalatable causes and the Indian advocate may not fail this standard. Counsel has
narrated some equivocal episodes which seem to suggest that the services of an efficient advocate may not be easy to procure to defend Mrs.
Menaka Gandhi. Such glib allegations which involve a reflection on the members of the Bar in Bombay may not be easily accepted without
incontestable testimony in that behalf, apart from the ipse dixit of the party. That is absent here .......
In ''Professional Conduct and Advocacy'', K. V. Krishnaswami Aiyar, a leading advocate of this Court, in his series of lectures has referred to
para 5 of the Code of Professional Ethics promulgated by the American Bar Association, which reads as follows : (Professional Conduct and
Advocacy - by K. V. Krishnaswami Aiyar - page 103) :
........ A lawyer may undertake with propriety the defence of a person accused of crime although he knows or believes him guilty, and having
undertaken it he is bound by all fair and honourable means to present such defences as the law of the land permits, to the end that no person may
be deprived of life or liberty but by due process of law ......
A passage from ''The Advocate''s Devil'' by C. P. Harvey is also worth referring and at page 7 it has been observed as follows :
......... Lord Macmillan deals with the first of them by quoting Erskine in defence of Tom Paine - ""From the moment that any advocate can be
permitted to say that he will or will not stand between the Crown and the subject arraigned in the court where he sits daily to practise, from that
moment the liberties of England are at an end. If the advocate refuses to defend from what he may think of the charge or of the defence, he
assumes the character of the judge; nay, he assumes it before the hour of judgment, and in proportion to his rank and reputation puts the heavy
influence of perhaps a mistaken opinion into the scale against the accused, in whose favour the benevolent principle of the English makes all
presumptions, and which commands the very judge to be his counsel ........
It is also necessary to refer to the decision in Lawrence v. Campbell (Courts of Chancery - Vol. XXVIII - page 780) wherein it has been
observed as follows (at page 781) :
........ The general principle is this : the exigencies of mankind require, that in matters of business which may lead to litigation with respect to rights
and obligations, a man should be entitled to communicate freely with his professional adviser, and that such communications should be confidential
and secret, which no one has a right to require either the client or his professional adviser to disclose. There is no mischief in this rule ......
So, if the petitioner''s action is considered on the backdrop of what has been stated herein above, assuming that the said unsigned undated letter
has been written by the petitioner, at best it can be said to be a professional communication. Prima facie, it cannot be treated as a material to rope
in the petitioner as an accused under the TADA Act. When such is the position, I do not see how the Designated Court has failed to see the real
cruz of the matter and rejected the bail application of the petitioner mechanically. In my view, it shows total non application of mind to the facts of
this case. As stated by the Supreme Court in Niranjan Singh Karam Singh Punjabi and Others Vs. Jitendra Bhimraj Bijja and others, the
provisions of the Act need not be resorted to if the nature of the activities of the petitioner herein can be checked and controlled under the ordinary
law of the land. In the abovementioned case, the Supreme Court has observed as follows (at page 1875) (of Cri LJ) :
...... The provisions of the Act need not be resorted to if the nature of the activities of the accused can be checked and controlled under the
ordinary law of the land. It is only in those cases where the law enforcing machinery finds the ordinary law to be inadequate or not sufficiently
effective for tackling the menace of terrorist and disruptive activities that resort should be had to the drastic provisions of the Act. While invoking a
criminal statute, such as the Act, the prosecution is duty bound to show from the record of the case and the documents collected in the course of
investigation that facts emerging therefrom prima facie constitute an offence within the letter of the law. When a statute provides special or
enhanced punishments as compared to the punishments prescribed for similar offences under the ordinary penal laws of the country, a higher
responsibility and duty is casl on the Judge to make sure there exists prima facie evidence for supporting the charge levelled by the prosecution.
Therefore, when a law visits a person with serious penal consequences extra care must be taken to ensure that those whom the legislature did not
intend to be covered by the express language of the statute are not roped in by stretching the language of the law. But that does not mean that the
judicial officer called upon to decide whether or not a case for framing a charge under the Act is made out should adopt a negative attitude. He
should frame a charge if the prosecution shows that the material placed on record and the documents relied on give rise to a strong suspicion of the
accused having committed the crime alleged against him ......
The principles laid down by the Supreme Court in the above mentioned case clearly apply to the facts of the case on hand. So, I am of the opinion
that the Designated Court ought to have released the petitioner on bail and the order of the Designated Court amounts to declining to exercise its
jurisdiction also. As I have already stated, the unsigned letter alleged to have been written by the petitioner herein, at no stretch of imagination, can
be taken as an abetment u/S. 3(3) of the TADA Act. On the facts and materials available on record I have no hesitation to hold that no offence is
made out against the petitioner prima facie under the TADA Act. So prima facie, I am fully satisfied that there are reasonable grounds for believing
that the petitioner is not guilty of any offence and that he is not likely to commit any offence while on bail.
In view of the conclusions arrived at, the petition will stand allowed and the order of the Designated Court is set aside.
The petitioner will be released on bail on his executing a bond for a sum of Rs. 10,000/- (Rupees Ten thousand only) with one surety for a like
sum to the satisfaction of the Principal Sessions Judge, Madras, subject to the conditions that the petitioner shall report to the Commissioner of
Police, Madras, on every Saturday at 9-00 a.m. and he should reside in Madras. The Commissioner of Police, Madras, is to see that the above
conditions are observed strictly and, in the event of breach of any of the conditions, the Prosecution will be at liberty to move for cancellation of
bail.
It is well settled that the power of this Court under Art. 227 of the Constitution is discretionary and, taking into consideration that the petitioner
is a practising advocate of 11 years standing at the Bar, and on the ground prima facie this Court is satisfied that there are reasonable grounds for
believing that the petitioner is not guilty of any offence under the TADA Act and that he is not likely to commit any offence under the TADA Act
while on bail, this order is passed. This shall not be treated as a precedent in all cases where bail has been refused by the Designated Court under
the TADA Act. However, there will be no order as to the costs.
Petition allowed.