State of Haryana vs Kundan, Tek Chand and ors.

B.S. Yadav, J.

The facts giving rise to this reference made by the learned Sessions Judge, Gurgaon, u/s 395 Cr. PC in brief are as under :

In this case (State v. Kundan and others under Sections 148/149, 427 & 436/149, 452, 380 and 302 IPC), the prosecution moved this Court with an application dated 13.6.1985 praying that in addition to the charges already framed against the accused persons, they also deserved to be chargesheeted under the Provisions of the Terrorists and Disruptive Activities (Prevention) Act, 1985, to be designated as the Act hereinafter, as the acts of arson and murder as imputed to the accused involved in this case also attracted the application of the provisions of the Act. Accordingly, I heard Sh. Onkar Singh Yadav, the learned Public Prosecutor and Sarvshri N.C. Jain, S.P. Gupta, H.S. Jain and Khazan Singh, Advocates Gurgaon, learned counsel for the accused and disposed of the above mentioned application moved on behalf of the prosecution vide order of even date i.e. 13.6.1985. In para No. 9 of that order, I observed as under :

"I am also of the firm opinion that in the view I take, this case shall have to be sent to the Designated Court for his Area for trial i.e. the Court of Sh. R.K. Gupta, Sessions Judge, Faridabad, (Designated Court for Faridabad, Gurgaon and Narnaul) as notified vide Haryana Government Home Department Gazette Notification No. SO.59/CA 31/85/S7/15 dated 30.5.1985, without the intervention of the Hon''ble High Court of Punjab and Haryana. The accused who are in custody be produced before the aforementioned Designated Court on 15.6.1985 and the accused who are on bail are directed to put in appearance before that Court on the date fixed. The charge Section 4(1) of the Act may be framed by the Designated Court itself. The application in hand shall stand disposed of in the above terms. The file be sent to the Designated Court at Faridabad through a special messenger."

Otherwise, my entire order dated 13.6.1985 is designed to form part of the instant one.

The Designated Court at Faridabad presided over by Sh. R.K. Gupta, created by the Haryana Government vide Haryana Government Home Department Gazette Notification No. SO.59/CA/31/85/S7/85 dated 30.5.1985, however, sent back the case file to this Court vide order dated 15.6.1985. It would be quite apposite and pertinent to mention here that the Designated Court did not specifically hold that the case was to triable by it or that my order dated 13.6.1985 was erroneous in any way. On the other hand, it was observed by that Court in para No. 3 of its order, dated 15.6.1985, among other things that `without elaborating further and without going into the correctness or otherwise of the view taken by the learned judge and with respects to him, I refuse to take cognizance of the case either as Sessions Judge, Faridabad, or as Designated Court under the 1985 Act. The file be sent back to the Sessions Judge, Gurgaon, immediately."

Now the stage is set to clarify and elucidate my position as regards my observation in the last para of my order dated 13.6.1985 reproduced supra, as to for what reason I had used the words" without the intervention of the Hon''ble High Court of Punjab and Haryana" in the first place, it was not a matter concerning the transfer of a case from one District to another in the state of Haryana in as much as the Designated Court as Faridabad had been empowered to take cognizance of offences under the Act committed throughout the length and the breadth of Faridabad, Gurgaon and Narnaul Divisions vide haryana Government Home Department Gazette Notification No. SO. 59/CA31/85/S7/85 dated 30.5.1983.

Secondly, in my considered view, my order dated 13.6.1985 could not be styled as an administrative one by any manner or means and the same was a judicial one to all intents and purposes. The Learned counsel on both sides had also endorsed my view to the effect that the case was not to be routed through the Hon''ble High Court in the passing of my order dated 13.6.1985, particularly so because all appeals under the Act were to be taken to the Hon''ble Supreme court and not to the Hon''ble High Courts it may be reiterated here that by no stretch of imagination or show of reason, my order dated 13.6.1985 could be deemed to be in the nature of the transfer of the case from my Court to the Designated Court.

Since vide my aforementioned order dated 13.6.1985 I had allowed the aforesaid application moved by the prosecution, holding as I did that the accused were also liable to be charged sheeted additionally under Section 3 of the Act, so it is quite obvious that was in no way competent to charge them as such, but the charge could only be framed by the Designated Court at Faridabad. That is why that I had observed in para No. 9 of my JUDGMENT dated 13.6.1985 that charge under Section 3 of the Act `may'' be framed by the Designated Court.

Now in its order dated 15.6.1985, the Designated court of Sh R.K. Gupta, Sessions Judge, Faridabad, appears to have repeatedly observed that I issued a command to that Court to frame a charge under Section 3 of the Act and to take cognizance of the case. With due deference to the Learned Designated Court, I am certainly at a loss to make out the reasons which prevailed with the Learned Judge of that Court to make such observations. To my way of reckoning and discernment, the Learned judge was perhaps thinking all the while that I had passed an administrative order and not a judicial one.

It may be reiterated here that since there is no reference to a High Court'' throughout the length and breadth of the Act and on the other hand there is a reference to the Hon''ble Supreme Court and I had passed a judicial order, so I entertained a bonafide belief that the case was not to be routed through the Hon''ble High Court of Punjab and Haryana. Here I would like to cite a very apt and relevant example. Supposing a challan is put in a court by the Public Prosecutor on behalf of the Prosecution Agency, that would not by any stretch of words mean that the prosecution has commanded that Court to hold a trial, whenever a case is to be registered in a certain Police Station within the jurisdiction of the Designated Court at Faridabad under the Act, obviously the Prosecution would be putting a challan in that Court if thought appropriate and that can never be taken to mean that the prosecution Agency has commanded that Court in any way.

Section 12(1) of the Act is in the following words :

"A Designated Court may take cognizance of any offence without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such offence or upon a police report of such facts."

In view of the above Provisions as well, I was of a bonafied belief that the case could be directly transmitted to the Designated Court at Faridabad for trial on the basis of my order dated 13.6.1985.

Although the case in hand was sent to the Designated Court at Faridabad in its capacity as Designated Court, yet the order dated 15.6.1985 has been passed by Sh. R.K. Gupta, as Sessions Judge, Faridabad. In the title of the order as well, the name of the Court passing the order has not been set out.

In a situation like this, I cannot proceed further in the case in view of my findings that the same is exclusively triable by the Designated Court at Faridabad as contemplated under Section 9(1) of the Act. The Designated Court at Faridabad, has also not held in so many words that the case is not triable by it. Therefore, I have no option but to direct that the case file be transmitted to the Hon''ble High Court of Punjab and Haryana by way of a reference for giving necessary guidance in the matter, orders from the Hon''ble High Court be awaited till 29.6.1985. (This case was referred to the Larger Bench dy Hon''ble Mr. Justice B.S. Yadav and Hon''ble Mr. Justice Pritpal Singh answered the reference on May 21, 1986 and ordered that the present case is to be tried by the Sessions Judge, Gurgaon and not Designated Court and directed the Learned Sessions Judge, Gurgaon to expedite the trial of the case).

JUDGMENT(Referring JUDGMENT)

Surinder Singh, J. This is a Reference made by the Sessions Judge, Gurgaon, in respect of Sessions Case no. 10 of 1985 State v. Kundan and others, in which the respondents are facing charge for the commission of offence under sections 148, 302/149, 436/149 and 452. Indian Penal Code, the allegation being that they had committed the murder of thirteen persons of one community and had set fire to various houses at Gurgaon on November 2, 1984.

While the case was pending trial in the Court of the Sessions Judge, Gurgaon, the Terrorist and Disruptive Activities (Prevention) Act, 1985 (hereinafter referred to as the Act) was enacted. It appears that an application for addition of charge under the said Act was moved before the learned Sessions Judge, who by means of the order, dated June 13, 1985 directed the transfer of the case from his Court to the Designated Court under the Act, i.e. the Court of Sh. R.K. Gupta, Sessions Judge, Faridabad (Designated Court for Faridabad, Gurgaon and Narnaul), as notified vide Haryana Government Gazette Notification, dated May 30, 1985. Before the aforesaid order was passed by the learned Sessions Judge, the question which was mooted was, as to whether the Act would have retrospective operation in regard to the cases which were already pending at the time when the same came into force. The learned Sessions Judge was of the view that the Act would apply even to pending cases.

When the case reached the Designated Court, i.e. Sessions Judge, Faridabad, the learned Officer disagreed with the view of the Sessions Judge, Gurgaon, in regard to the retrospective operation of the Act and also observed that the said Session Judge could not transfer the case to him, as there was no provision in the Act in this regard. In his order, dated June 15, 1985, signed as Sessions Judge, Faridabad, the learned judge observed as follows :

"Without elaborating further and without going into the correctness or otherwise of the view taken by the learned judge and with respects to him, I refuse to take cognizance of the case either as Sessions Judge, Faridabad, or, as Designated Court under the 1985 Act. The file be sent back to the Sessions Judge, Gurgaon immediately. The parties would appear before him on 17.6.1985."

On receipt of the case back in his Court, the learned Sessions Judge, Gurgaon, has made the present Reference to this Court for giving necessary guidance in the matter."

The learned counsel for the parties have been heard at considerable length. In his order, dated June 13, 1985, the learned Sessions Judge, Gurgaon, has taken into account the various aspects of the matter for coming to the conclusions about the retrospectivity of the Act. On the other hand, the learned Sessions Judge, Faridabad, has passed a brief order refusing to take cognizance of the case. As noticed in the order of the Sessions Judge, Gurgaon, dated June 13, 1985, the implications of the controversy are quite serious. If the accused are tried and convicted under sections 302/149, Indian Penal Code, by the ordinary Court, i.e. Sessions Judge, there is an option with the Court to sentence them to death or imprisonment for life, but if they are so convicted for the offence under section 13(1) of the new Act by the Designated Court, death penalty has to be awarded against them, as provided under the said Act. The point involved is of farreaching importance and a decision regarding the same would effect a large number of cases of this type. It would, therefore, be appropriate that this matter is decided by a Larger Bench.

It is directed that this case be laid before the Hon''ble Chief Justice for constituting a Larger Bench for deciding the Reference on all the points raised therein.

Sd/ Surinder Singh,

Judge.

September 23, 1985.

JUDGMENTDated 21.5.1986 passed by the Division Bench :

B.S. Yadav, J. The facts giving rise to this reference made by the learned Sessions Judge, Gurgaon, in brief are as follows :

A case was registered against 12 persons on the allegations that they being members of an unlawful assembly on 2nd November, 1984, the common object of which was to commit murders of 13 persons and to set fire to various houses. They are also said to be armed with deadly weapons. Charges under Sections 148, 436 and 302 both read with Sections 149 and 452. Indian Penal code were framed against the accused by the learned Sessions Judge, Gurgaon. While the case was pending in that Court the Public Prosecutor filed an application for framing of charge under the provisions of the Terrorist and Disruptive Activities (Prevention) Act, 1985 (for short the Act), as the said Act had come into force by then. The learned Sessions Judge formed the opinion that the said Act applied even to pending cases and in the instant case attracted the provisions of the said Act, therefore, he could not try the case as it was to be tried by the designated Court Under the Act. As for that area Sessions Judge, Faridabad had been notified as Designated Court, he sent the case to that Court vide his orders dated 13th June, 1985. The Sessions Judge, Faridabad, sent back the case to the Sessions Judge, Gurgaon, on the short ground that there was no provision for the transfer of pending cases from the Court of Sessions Judge to the Designated Court, Vide order dated 17th June, 1985, the Sessions Judge, Gurgaon, made this reference to this Court for giving necessary guidance in the matter. The reference was first heard by Surinder Singh, J. He came to the opinion that as the question involved was whether the Act had retrospective operation or not and as that question was of far reaching importance, therefore, the said question be determined by a larger Bench. Hence this case before us.

The Act received the assent of the President on 23rd may, 1985 an on the same day it was published in the Gazette of India. The Act did not provide as to when it would come into fore. However, it was provided under section 1(3) of the Act that it shall come into force on such date as the Central Government may by notification in the Official Gazette, appoint and shall remain in force for a period of two yeas from the date of commencement. Sections 3(1) and (2) of the Act read as follows :

"3(1). Whoever with intent to over we 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 sections of the people does any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons of poisons or noxious gases or other chemicals or 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 damage to, or destruction of property or disruption of any supplies or services essential to the life of the community, commits a terrorist act.

(2) Whoever commits a terrorist act shall,

(i) if such act has resulted in the death of any person, be punishable with death;

(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 terms of life and shall also be liable to fine."

The learned Sessions Judge, Gurgaon, was of the opinion that the accused had committed `a terrorist act'' as according to the prosecution they struck terror in a certain section of the people and murdered some persons belonging to a certain community and also adversely affected the harmony amongst different sections of the people. He further remarked that the case had arisen in the wake of assassination of the late Prime Minister of India, Mrs. Indira Gandhi. The victims belonged to a particular community while the accused belonged to a different community. The Judge was of the opinion that the Act had retrospective operation and without any option death penalty had to be awarded to the accused in case the charge of murder was established.

After hearing the arguments of the learned counsel for the parties we have come to the opinion that the act cannot be said to be having retrospective operation. The accused have been charged of murder also which can entail punishment of death but the Indian Penal Code has given discretion to the court while convicting an accused on a murder charge either to award death sentence or life imprisonment for that offence depending upon the circumstances of the case. Under the Act the trial court will have no option but to award death sentence in case the charge of murder is proved against the accused, Moreover there can be some other offences which under the Indian Penal Code might be punishable with lesser sentence but in view of section 3(2)(ii) of the act the sentence of imprisonment for those offences shall not be less than five years and it may extend to a term of life and the accused shall also be liable to fine.

Article 20(1) of the Constitution of India reads as follows :

"20(1). No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been infected under the law in force at the time of the commission of the offence."

Thus an accused cannot be subjected to a penalty greater than that the one which could have been inflicted upon him under the law in force at the time of the commission of the offence. We will have to presume that while enacting the Act, Parliament did not intent to violate the above Article of the Constitution.

In T. Barai v. Henry Ah Hoe and another, 1983 Cr. JL 164 their Lordships of the Supreme Court remarked :

"It is only retrospective criminal legislation that is prohibited under Article 20(1). The prohibition contained in Article 20(1) is that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence its nor shall he be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. It is quite clear that insofar as the Central Amendment Act creates new offences or enhances punishment for a particular type of offence no person can be convicted by such ex post facto law nor can the enhanced punishment prescribed by the amendment be applicable."

Reference can also be made to G.P. Nayyar v. State (Delhi Admn.), 1979 Cr. LJ 589 wherein it was remarked :

"Though a sovereign legislature has power to legislate retrospectively, creating of an offence for an act which at the time of its commission was not an offence or imposition of a penalty greater than that which was under the law provided violate Art. 20(1). In the well known case of Phillips v. Eyre (1870)6 QBD 1 at pp 23 and 25 and also in the American case of Calder v. Bull (1780 to 1806) 3 Dall 386: 1 Led 648 at p. 649 the principle underlying the provision has been fully discussed.''

We need not discuss this point as Sh. Jhingan, Advocate, appearing for the Advocate General, haryana, frankly conceded that the Act has no element of retrospectivity and the present case is to be tried by the Sessions Judge, Gurgaon and not by the Designated Court. We answer the reference accordingly.

As the case has already become quite old and some of the accused are in custody, we direct the learned Sessions Judge, Gurgaon, to expedite the trial of the case. The parties through their counsel have been directed to appear in that court on 1st June, 1986. The records of the case be sent to that Court immediately.''

Sd/ B.S. Yadav, Judge.

Sd/ Pritpal Singh, Judge.