Perarivalan vs The Director of CBI, Madras

Somasundaram, J.—This Writ Petition is filed under Article 226 of the Constitution of India for the issue of a Writ of Mandamus for

directing the respondent to forbear from invoking the Terrorist and Disruptive Activities (Prevention) Act, hereinafter called the TADA Act, in

Crime No.9/5/91-CBI/SPE/MAS on the file of the respondent.

The admitted facts are: In respect of the occurrence on 21.5.1991 at Sri Perumpudur relating to the assassination of the former Prime Minister

Shri Rajiv Gandhi and others, a case in Crime No. 320/91 of Sriperumpudur Police Station was registered on 22.5.1991 under S.s 302,307 and

326 I.P.C., read with sections 3 and 5 of the Explosive Substances Act. Subsequently the case was taken up for further investigations by the

respondent on 24.5.1991 by SPE/CBI/SCB/ Madras which registered Cr. Rc.No.9/5/91 under the same sections of law. On 31.5.1991 further

sections of law were included in the F.I.R. viz., section 120-B I.P.C. and section 3 of the TADA Act. During the course of investigation the

petitioner was taken into custody, he was produced before the Chief Judicial Magistrate, Chengai Anna District at Chengalpattu on 10.6.1991 and

on the same day he was remanded to the Judicial Custody and the petitioner continued to be in judicial custody.

The case of the petitioner as disclosed in the affidavit filed in support of the Writ Petition is as follows: The TADA Act is a special enactment,

the intention of which was to confine the applicability of the Act to cessationist and insurgency activities against the State. In the present case, the

charge against the petitioner and others is the charge of murder of an individual and it is only an offence punishable under the Indian Penal Code

and, therefore only the penal law of the land can be invoked and that there is no justification for invoking the provisions of the TADA Act, which is

a special enactment. The provisions of the TADA Act can be invoked only on extreme matters when the police cannot tackle the situation under

the provisions of the ordinary penal law. There is no material in the present case to disclose an offence under the provisions of the TADA Act and

the respondent is not justified in invoking the provisions of the TADA Act particularly when the materials available with the respondent do not

satisfy the essential ingredients of the offence under the TADA Act.

The respondent filed a counter affidavit contending as follows: The interpretation sought to be placed by the petitioner on the scope and

applicability of S. 3(i) of the TADA Act is not correct. S. 3 of the TADA Act will get attracted if the act is of such nature as to strike terror in the

people or any section of the people and resulting in death or injury to any person or persons. In the instant case, the bomb blast that occurred on

21.5.1991 did cause terror in the minds of people who had gathered at the meeting place at Sriperumpudur and in the surrounding area and also

caused the death of the late Shri Rajiv Gandhi, the former Prime Minister of India, a group of nine police officials who were on bandobust duty and

eight members of the public and injuries to police personnel and others and, therefore the said acts squarely come within the mischief of the

definition of sections 3 of the TADA Act. The investigation done so far by the respondent and the seizures effected in the case clearly disclose

activities of the persons concerned in this case showing their involvement in the offence which would attract the provisions of S.s 3 to 5 of the

TADA Act. The materials gathered during the course of investigation in the present case clearly attract the provisions of S.s 3, 4 and 5 of the

TADA Act and the concerned Criminal Court had been duly intimated about the inclusion of this offence as and when the materials had come to

light. The respondent is justified in invoking the provisions of the TADA Act in the present case.

Mr. S. Doraisamy, learned Counsel for the Petitioner contended in the first place that the respondent cannot invoke Sections. 3 to 5 of the

TADA Act and register a case under these sections also, because the incident that took place on 21.5.1991 is not a terrorist act intended to over,

awe the Government and that the materials on record are not sufficient to charge the petitioner under Sections 3 to 5 of the TADA Act. The

learned Counsel further contended that the TADA Act can be invoked only when the law enforcing machinery fails and there is no material in this

case to show that the law enforcing machinery has failed. The learned counsel for the petitioner also contended that the TADA Act is a special

enactment containing the extreme measure to be resorted to only when the police cannot tackle the situation under the ordinary penal law. In

support of his contention the learned counsel for the petitioner relied on the decisions in Dilaver Hussain and Others Vs. State of Gujarat and

Another, ; Mohd. Harun Vs. State of U.P., ; Usmanbhai Dawoodbhai Memon and Others Vs. State of Gujarat, ; and Niranjan Singh Karam

Singh Punjabi and Others Vs. Jitendra Bhimraj Bijja and others, . We are unable to accept the above contentions of the learned counsel for the

petitioner because it is not warranted by the language of the relevant provisions of the TADA Act and in view of the pronouncement of the Apex

Court in Kathulu Somuiu v. State of Andhra Pradesh AIR 1901 S.C. 1556 and Erram Santosh Reddy and others Vs. State of Andhra Pradesh, of

the TADA Act defines ""terrorist"" Act and it has the same meaning assigned to it in S. 3(1) of the TADA Act, S. 3(1) of the TADA Act reads thus:

Punishment for terrorist acts:

(1) Whoever with intent to over awe the Government as by law established 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 occasions of the people does any act or thing by using

bombs, dynamite or other explosive substance or inflammable substances or fire-arms or other lethal weapons or poisons or noxious gases or

other chemicals or by any other substance (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 loss of, or damage to, or destruction of, property or 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.

S. 3(3) of the TADA Act deals with conspiracy or attempt or abetment or inciting or facilitation of the commission of a terrorist act and Section

3(3)of the TADA Act runs as follows:

Whoever conspires or attempts to commit or advocates, abets, advises or incites or knowingly facilitates the commission of, a terrorist act or any

act preparatory to a terrorist act, shall 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.

A careful reading of S. 3(1) of the TADA Act shows that it is not confined only to a terrorist act intended to overawe the Government. S. 3(1)

also covers an act of a person who with an intent to strike terror in the people or any Section of the people, uses bombs, dynamites or other

explosive substances etc, in such manner as to cause or its likely to cause death of, or injuries to any person or persons etc. In as much as the

materials collected in this case by the respondent during the course of investigation disclosed the commission of offences under Ss. 3, 4 and 5 of

the Act also, the said sections were also incorporated in the F.I.R. for the purpose of further investigation and the same was also duly intimated to

the Chief Judicial Magistrate''s Court, Chengalpattu. Further in the application dated 19.6.1991 submitted by the respondent requesting the Chief

Judicial Magistrate, Chengalpattu to remand the petitioner and another to judicial custody, it is specifically stated as follows:

A case in RC 9/5/91/SPE/ Madras under S.s 302, 307, 326 IPC and sections 3 and 5 of the Explosive Substances Act was registered on

24.5.91 against the unknown persons and the original FIR was submitted to the Hon''ble Court.

On 31.5.1991 based on further evidence collected, the offences punishable under S.s 120-B IPC and S. 3 of Terrorist and Disruptive Activities

(Prevention) Act, 1987 were also incorporated and the same was duly informed to this Hon''ble Court.

It is further stated in the remand report that the petitioner and another were found to be active co-conspirators with other accused viz., A1 to A4

and others in the Commission of the offence alleged against them. Admittedly in the present case several innocent persons including former Prime

Minister Shri Rajiv Gandhi were killed and several other innocent persons were injured as a result of the bomb-blast.

Now it is necessary to refer to the decisions of the Supreme Court relied on by Mr. P. Rajamanickam, learned counsel for the respondent. In

Kathula Somulu @ Mallanna and another Vs. State of Andhra Pradesh, , the appellants are the members of CPI (ML) Group. On 22.6.1986 on

reliable information the E.1 of Police, Chintur with other police personnel proceeded to Goundlakota village and conducted raids in the forests.

While they were returning to Chintur, they found some extremists proceeding towards Hillock near Gone Gutta of Kalthur village. They were

chased and the two appellants were apprehended, with one country-made pipegun (Tapancha) and two country-made bombs and pellets. A case

was registered under the provisions of the Arms Act and Explosive Substances Act and also under Sections 3 and 4 of TADA. Punch.... were

prepared for the recovery of the weapons as well as explosive substances. The prosecution examined P.Ws.1 to 4. P.W.1 in the S.I. of police and

is a prosecution witness and the P.W. 3 is the Bench-witness. The learned Designated Judge accepted the evidence and found the appellants

guilty. The Supreme Court while upholding the conviction and sentence as passed by the designated Judge against the appellants held as follows:

S. 2(f) defines the ""Terrorist Act"" and has the meaning assigned to it is sub-section (1) of S. 3 of ''TADA''. The provisions of Section 3(3) which

deal with the conspiracy or attempt or abetment or inciting or facilitation of the commission of a terrorist act. The fact that these appellants were

found in the group of other persons in the forest acts and were soon running away after seeing the police and coupled with the recoveries of the

explosive substance including the country-made Tire-arms would lead to the inference that the appellants along with other were engaged in

conspiracy or in attempt to commitat abet the ''terrorist act''.

In Karam Santhosh Reddy v. State of Andhra Pradesh AIR 1991 SC 1678 the Supreme Court, after going through the evidence of P.Ws.1, 2

and 3 found that the prosecutions established that when the police raided the premises of the appellants, one of the appellants huried a bomb on

them and when the appellants surrendered, fire-arms and explosives were recovered from them. On the said finding the Supreme Court held as

follows:

That being so, the ingredients of S. 2(f) as well as S.3(1) are attracted. S. 3(1) is very wide and covers any act which a strikes terror in the people

or section of the people would attract the said provisions. The fact that the accused were armed with the fire-arms as well as explosive substance

and also hurled a bomb on the police who were in the premises would go to show that the offence of the accused was to strike terror in the people

or a section of the people including the police.

The ratio of the decisions of the Supreme Court referred to above applies to the facts of the present case and in this context it is relevant to refer to

the following averments in para 8 of the counter-affidavit.

In the present case, with the materials on record relating to the activities of the persons who are concerned in this case and who are involved in a

well designed plan to use bomb and explosive to create scare and panic and commit a terrorist act and in that situation to commit murder of the

former Prime Minister of India and the person who are likely to be along with him in that scene at that time and in that explosive situation to make

themselves scarce and thereafter to screen the offenders involved in this case and to attempt to escape the clutches of law and has dexterously

executed the scheme of conspiracy and thereby achieved their object, It cannot be said that on the facts of this case the provisions of TADA Act

will not apply

Now let us examine the decisive relied on by the learned counsel for the petitioner. In Niranjan Singh Karam Singh Punjabi and Others Vs.

Jitendra Bhimraj Bijja and others, the Supreme Court while holding that the prior statement made by the accused that he wanted to create terror

with the intention to eliminate the rivals and gain supremacy in the underworld so that they may be known as the bullies of the locality and would be

dreaded as such, does not constitute a terrorist act, observed as follows:

It would have been different matter if to strike terror some innocent persons were killed. In that case the intention would be to strike terror and the

killings would be to achieve that objective.

In the instant case the bomb blast that took place on 21.5.1991 did cause terror in the minds of the people who had gathered at the meeting place

at Sriperumpudur and also has caused the death of late Shri Rajiv Gandhi, a group of nine police officials and 8 members of the public. Therefore,

the ratio of the decision in Niranjan Singh Karam Singh Punjabi and Others Vs. Jitendra Bhimraj Bijja and others, is not helpful to the petitioner.

In Dilaver Hussain and Others Vs. State of Gujarat and Another, the Apex Court while dealing with a case of communal clash acquitted the

accused holding that the prosecution failed to prove beyond the shadow of doubt that the appellants committed the offences under Sections 3(2)

(i) of the TAD A Act read with Section 34 I.P.C. Section 302 read with Section 436/149, 449, 143 and 148 I.P.C., and set aside the conviction

of the appellants. Similarly in Usman Bai v. State of Gujarat 1988 SC 992 there was a civil dispute between the two rival groups resulting in an

armed clash between them and in such a case the provisions of the TADA Act were sought to be invoked. The Supreme Court took the view that

the provisions of the TADA Act cannot be invoked in such cases.

In Ayobkhan Kalandarkhan Pathan v. State of Gujarat 1991 Crl.L.J. 1085 a Division bench of the Gujarat High Court while dealing with a

case between rival groups came to the conclusion that the materials available on record in that case do not disclose the commission of an offence

under S. 3 of the TADA Act. In these circumstances, it has to be held that the four decisions referred to above and heavily relied on by the learned

counsel for the petitioner are not helpful to the petitioner.

We had occasion to go into this very question in W.P. Nos. 8893 and 9288 of 1991 filed by the petitioner himself and by the order dated

29.7.1991 after repelling the similar contentions raised by the learned counsel for the petitioner we have held that the respondent is justified in

invoking Sections 3 to 5 of the TADA Act as the materials collected by the respondent in the course of investigation of the case warranted the

invocation of the provisions of the TADA Act.

The second contention of the learned Counsel for the petitioner is that the respondent is established under the Delhi Special Police

Establishment Act u/s 2 of the Act, the Central Government may constitute a Special Police establishment for the investigation of an offence

noticed u/s 3, as per Section 3 of the Delhi Special Police Establishment Act, the Central Government may by notification in the Gazette specify the

offences and which class of offences to be investigated by the respondent and under S. 5 of the Act, the Central Government by order extend to

any area, the powers and the jurisdiction of the Delhi Special Police Establishment for the purpose of investigation. The learned Counsel further

contended that in the present case no notification tinder S.3 was published in the gazette granting power to the respondent to investigate into the

present case and no order under S.5 was issued granting power to this respondent to investigate matter in the State of Tamil Nadu and hence the

respondent cannot invoke the provisions of the TADA Act. There is no merit in this contention of the learned counsel for the petitioner also. As

rightly pointed out by the Learned Counsel for the respondent, the Government of India have issued a notification No. 228/8/89 ADD.3

Government of India dated 7.9.1989 under S. 3 of the Delhi Special Police Establishment Act empowering the members of the SPE to investigate

offences under the TADA Act, 1987 and the rules made therein. The Government of India with the consent of the State Government of Tamilnadu

issued notification No. 228/18, 87 dated 8.8.1989 under S. 5 read with section 6 of the Delhi Special Police Establishment Act extending the

powers and jurisdiction of the members of the SPE to the whole of the State of Tamil Nadu for investigation of offence under the TAD A Act and

the Rules made thereunder. Further the Government of Tamilnadu by its notification dated 22.9.1971 and the Government of India by its

notification dated 23.5.1991 authorised the SPE, CBI to investigate the case in Cr. No.328/91 of Sriperumpudur Police Station under S. 302,

307 and 326 I.P.C., and S. 3 and 5 of the Explosive Substances Act for attempt, abetments and conspiracies in relation to or in connection with

the said offences and any other offence committed in the course of the transaction arising out of the same facts in regard to the said case. In these

circumstances, it has to be held that the respondent has been clothed with all the powers of investigation under the TADA Act.

Thirdly Mr. S. Doraisamy, learned Counsel for the petitioner contended that under S. 154 Cr.P.C. any information about the commission of an

offence should be reduced in writing and shall be entered in a book; in the present case the respondent have registered a case in Cr.No.9/5/91

only for the offences under S. 302, 307 and 320 I.P.C. and sections 3 and 5 of the Explosive Substances Act and thereafter the respondent had

not altered the F.I.R. According to the learned counsel for the petitioner, as long as the F.I.R. is not altered, the respondent will not have the

power and jurisdiction to proceed under the provisions of the TADA Act. We are unable to accept the third contention of the learned Counsel for

the petitioner also. As already pointed out, the case registered by Sriperumpudur Police in Cr.No.329/91 regarding the assassination of the late

Shri Rajiv Gandhi and others was transferred to SPE/CBI for further investigation, which registered Cr.No.9/5/91 under S.s 302, 307 and 326

I.P.C., and Sections 3 and 5 of the Explosive Substances Act. As rightly pointed out by the learned Counsel for the respondent, after the

registration of this case in Cr.No.RC.9/5/91 further investigation was done and when materials were available during the course of investigation

attracting the provisions of Ss. 3 to 5 of the TADA Act in the Criminal Court the inclusion of these offences for investigation. Further, the alteration

of the F.I.R. is not condition precedent particularly when the intimation to the concerned Court about the inclusion of the offence under Ss. 3 to 4

of the TADA Act in the investigation was done in accordance with the law.

In view of the above discussion we have to held on the facts and in the circumstances of the case, the invocation of the TADA Act in the

present case is legally sustainable and the petitioner is not entitled to any relief in this Writ Petition. Therefore, the Writ petition is liable to be

dismissed and accordingly, it is dismissed. However, there will be no order as to costs.