Hiren Brahma vs State of Assam and Another

S.N. Phukan, J.—This is a petition u/s 482 Cr. P.C. against the order dated 27-2-91 passed by the Designated Court, Assam at Gauhati in Misc. Case No. 646 (K) of 1991. By the said order, the learned Designated Court refused the prayer of bail on the ground that it is premature.

Heard Mr. T.C. Mazumdar, learned counsel for the petitioner and Mr. Narzary, learned Public Prosecutor.

Mr. Narzary, learned Public Prosecutor has rightly urged that in view of the provision of law laid down in Section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1987, this court has no jurisdiction to interfere with the orders of the Designated Court.

This Act came up before the apex court in two cases viz. Usmanbhai Dawoodbhai Memon and Others Vs. State of Gujarat, and Niranjan Singh Karam Singh Punjabi and Others Vs. Jitendra Bhimraj Bijja and others, In Usmanbhai (supra) in para 15, the apex court observed that the Act is an extreme measure to be resorted to when the police cannot tackle the situation under the ordinary penal law. The intendment is to provide special machinery to combat the growing menace of terrorism in different parts of the country. The court further held that the Act being a drastic measure, it should not ordinarily be resorted to unless the Government''s law enforcing machinery fails. This was reiterated in Nirapjan Singh (supra) and in para 8 of the judgment the ratio laid down is as follows :

To put it differently the ratio of the decision is that the provision 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 provision 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 the facts emerging therefrom prima facie constitute an offence within the letter of the law....

This law laid down by the apex court is binding on all courts within the territory of India as laid down in Article 141 of the Constitution of India, and as such this court is duty bound to enforce the above law laid down. It has come to the notice of this court that even in the ordinary cases, Section 3 & 4 of the above Act are added by the prosecution which is absolutely illegal. Though this court cannot interfere with the impugned order, this court can definitely direct the Designated Court, by invoking the provisions of Article 227 of the Constitution, to observe the law laid down by the apex court.

I have perused the impugned order and I find that the learned Designated Court did not examine the matter in the light of the law laid down by the apex court. I, therefore, grant liberty to the present petitioner to file a fresh application before the learned Designated Court who shall after perusing the record including the case diary shall pass appropriate orders in accordance with law laid down by the apex court.

With the above direction, the petition is disposed of.