Ashiq Hussain Faktoo vs Union of India (UOI) and Others

O.P. Sharma, J.—The dark clouds of terrorism have been haunting the valley since 1989. The first victim of terrorists' violence was Tikka

Lal Taploo, a practising lawyer who was shot dead near his house in September 1989. The militants again struck soon thereafter when Late Shri

Neel Kanth Ganjoo a retired member of Higher Judicial Service having lucrative practice at the bar was shot dead in broad day light. As if this was

not a sufficient warning, the militants shot dead Shri Prem Nath Bhat, a leading Advocate of Anantnag in December 1989. The Newspaper reports

of the time indicated that while Shri Taploo was killed for his political idealogy as he was a leading Member of Bhartiya Janta Party, Shri Ganjoo

had to die for being the trial Judge who convicted Maqbool Bhat and Shri Prem Nath Bhat for writing against Fundamentalism. However, what

followed thereafter proved that it was not the end but only beginning of the terrorism which later engulfed the entire valley as a consequence of

which a huge majority of minority community fled from the valley and took shelter in the migrant camps. The terrorism let loose by the militants has

not only taken heavy toll of life besides destruction of public and private property, but also shaken the very foundation of secularism for which

State of Jammu and Kashmir stood. It has virtually destroyed the composite culture for which the valley was known throughout the world over.

However despite countless killings and migration of more than two third of Kashmiri Pandits community from the valley there were some who

preferred to stay on hoping against hope that sanity will prevail and secularism will survive the assault of the militant organizations.

It was this hope which persuaded Late Hirday Nath Wanchoo, a resident of Jawahar Nagar (Srinagar) to stay back. It appears he had decided

to prefer death to migration though he was not alone as a few more families continued to stay in the valley though at different places and for

different reasons.

Unfortunately, he did not survive for long and became yet another victim of terrorist killings when he was shot dead on 5.12.1992 as is evident

from the facts disclosed in the First Information Report No. 204 registered in Police Station Shaheed Gunj, Srinagar u/s 302 RFC 3(1) of Terrorist

and Disruptive Activities Act, 1987 3,25 Indian Arms Act etc. Investigation of this case was later handed over to Central Bureau of Investigation

vide notification dated 21.12.1992 issued by the State Government. The investigation revealed that conspiracy was hatched to kill Shri Wanchoo

and others by the petitioner and other accused who have been named in the final report. The petitioner, therefore, is one of the accused against

whom charges have been framed by the designated court.

The petitioner challenges his prosecution on the ground (i) that application of Terrorist and Disruptive Activities Act to the State ultra-vires the

constitution, (ii) that the Terrorist and Disruptive Activities Act having lapsed and there being no saving clause notification issued u/s 9 of TADA to

establish designated courts has also lapsed and, therefore, the designated court has no jurisdiction to try the petitioner, (iii) that conflict between

Section 12 of TADA and Section 5 of the Code of Criminal Procedure cannot be satisfactorily resolved.

At the outset Mr. S.T. Hussain stated at the bar that he is pressing the petition only for the determination of the following questions:

(i) Whether notification issued u/s 9 of the TADA by virtue of which designated courts have been established in the State is legislative or an

executive action,

(ii) Whether notification establishing designated courts in exercise of powers conferred u/s 9 has lapsed with the Act and, therefore, designated

courts are exercising jurisdiction with out lawful authority.

(iii) Whether there is any conflict between Section 5 of the Cr.P.C and Section 12 of TADA, if so what is its effect on the trial of cases by the

designated court.

Regarding challenge to the application of Terrorist and Disruptive Activities Act to the state, the issue stands concluded by the decision of the

Supreme Court in Kartar Singh v. State 1994 CriLJ 1339 holding that:-

In our view, the impugned legislation does not fall under Entry 1 of List-II, namely, ""Public Order"". No other entry of List II has been invoked.

The impugned Act, therefore, falls within the legislative competence of Parliament in view of Article 248 read with Entry 97 of List I and it is not

necessary to consider whether it falls under any of the Entries in List I or List III. We, are, however, of the opnion that the impugned Act could fall

within the ambit of Entry 1 of List 1, namely, ""Defence of India"".

Again while referring to the definition of Terrorist in Section 2(1)(H) of the TADA, their Lordships held:-

The above definition also requires more or less the intention as required u/s 3(1) of TADA, namely Act 28 of 1987 and also the motive for

commission of the terrorist acts is as kin to that of Section 4 of the TADA Act of 1987, i.e. one of the motives being to endanger the sovereignty

and integrity of India. In short, the definition of the expressions "" terrorist act"" and "" disruptive activity"" u/s 2(1) (h) and (d) of the Act jointly

brought under the definition of the word ""terrorist act"" in Act 61 of the 1984. Therefore, the Act of 1984 also cannot be said to have contemplated

only "" Public Order"" but envisages a more grave situation threatening the sovereignty and integrity of India.

Since Parliament has exclusive power to make laws with respect to any matter enumerated in List-I in the Seventh Schedule, application of Article

248 to the State of Jammu and Kashmir will determine the power of the Parliament to make law for the State. It has been applied in a modified

form. Article 248(a) as applicable to the State reads as follows:

Residuary powers of Legislation. -- Parliament has exclusive power to make any law with respect to-

(a) Prevention of activities directed towards disclaiming, questioning of disrupting the sovereignty and territorial integrity of India or bringing about

cession of a part of the territory of India or secession of a part of the territory of India from the Union or causing insult to the Indian National Flag,

the Indian National Anthem and this Constitution.

Since Entry 97 of List-I(Union List) has also been applied to the State, therefore, the Parliament has the power to enact law for the prevention of

activities involving Terrorist Acts and TADA was one such law enacted by the Parliament. It, therefore, applies to the State as mush as to other

parts of the country. This should suffice the challenge about the applicability of the TADA to the State.

Question No. 1 -- Section 2 defines a designated court. u/s 9 of the TADA, both the Central Government and the State Government is authorised

to constitute designated court. While Sub-section (1) of Section 9 empowers the Central and State Governments to constitute designated courts,

Sub-sections (4) to (6) prescribe the procedure to be followed by the Government. Section 9(1) reads as follows:

Designated Courts. -- (1) The Central Government or a State Government may, by notification in the Official Gazette, constitute one or more

Designated Courts for such area or areas, or for such case or class or group of cases as may be specified in the notification.

Sub-sections (4) to (6)of Section 9 reads as below:

(4) A Designated Court shall be presided over by a Judge to be appointed by the Central Government or as the case may be, the State

Government, with the concurrence of the Chief Justice of the High Court;

(5) The Central Government or, as the case may be, the State Government may also appoint, with the concurrence of the Chief Justice of the

High Court, Additional Judges to exercise jurisdiction in a Designated Court.

(6) A person shall not be qualified for apointment as a Judge or an Additional Judge of a Designated Court unless he is immediately before such

apointment, Sessions Judge or an Additional Sessions Judge in any State"".

So only a person who is Sessions Judge or Additional Judge can be appointed as Judge of the designated court. So it is not creation of a new

court, but designating an existing court for the trial of cases under TADA. Moreover, creation of court is not a legislative action because

subordinate Judiciary has been established under the constitution. The addition of number of courts depends upon the increase of the work.

Moreover, a Sessions Court is established by the Government u/s 9 of the Code of Criminal Procedure, Appointment to the post is also made by

it. As per Section 9(7), it is only a Sessions Judge or Additional Sessions Judge who is qualified for apointment as Judge or Additional Judge of

Designated Court. So the existing court of Sessions or Additional Sessions Judge could be notified as designated court as has been the practice

followed in Punjab and Delhi. In any case it is purely an executive function and, therefore, the argument that it is a legislative function is rejected.

Question No. 2 -- The question is whether the notification issued u/s 9 constituting the designated courts survives the Act which lapsed in 1995.

(5) The designated courts have been established for the trial of offences defined u/s 3 punishment for which is prescribed in Sections 4 to 6 of the

Terrorist and Disruptive Activities Act. The contention of Mr. Hussain is that as the Act which created a special offence and established designated

courts has been allowed to lapse by the Central Government the notification establishing the courts also lapses in the absence of any saving clause

in the Act. In support of this the learned counsel placed reliance on the decision of the Supreme Court in Air India Vs. Union of India and others,

holding that:

The Air Corporations (Transfer of Undertakings & Repeal) Act, 1994 came into force on 29th January 1994. By reason of Section 11 thereof

the Air Corporation Act, 1953, stands repealed from that day. Based upon this, Ms. Jaising appearing for Air India's employees, has raised a

contention that goes to the root. Air India's case had been that its, employees"" terms and conditions of service were governed by the said

regulations framed u/s 45 of the Air Corporation Act, 1953, that Act having now been repealed, the said Regulations no longer survived and the

sheet anchor of Air India's bid to avert certification of standing orders the Standing Orders Act disappeared.

After referring to these facts, their Lordships held as under:

Bennion on statutory Interpretation. 2nd edition, at page 494 and 495 states that a ""saving is a provision the intention of which is to narrow the

effect of the enactment to which it refers so as to preserve some existing legal rule or right from its operation"". It adds, ""Very often a saving is

unnecessary, but is put in ex abundanti cautela top quieten doubts"". The updated text of the Interpretation Act, 1978, (set out in Bennion's book at

page 897) puts into statutory form in Section 15 what is otherwise recognised in law, namely, that the repeal of an enactment does not unless the

contrary intention appears, affect any right or previlege accured under that enactment.

In our view, if subordinate legislation is to survive the repeal of its parent statute, the repealing statute must say so in so many words and by

mentioning the title of the subordinate legislation. We do not think that there is room for implying anything in this behalf.

Section 8 of the 1994 Act does not in express terms save the said Regulations, nor does it mention them. Section 8 only protects the

remuneration, terms and conditions and rights and previleges of whose who were in Air India's employment when the 1994 Act came into force.

Such saving is undoubtedly ""to quieten doubts"" of those Air India's employees who were then in service. What is enacted in Section 8 does not

cover those employees who joined Air India's service after the 1994 Act came into force. The limited saving enacted in Section 8 does not, in our

opinion, extend to the said Regulations"".

We have already found that establishment of the designated courts in terms of Section 9 is an executive action. It is not an act of subordinate

legislation as argued by Mr. Hassan. It is only Rule making power which is subordinate legislation. However, designated courts have not been

established under any of the rules made u/s 28 of the Act.

In Air India case Section 8 did not save the Regulation framed under the repealed Act. So the facts are different. This argument is also rejected

being without any merit.

Question No. 3: Section 5 of our Code reads as under:-

Trial of offences under Ranbir Penal Code. --

(1) All offences under the Ranbir Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions

hereinafter contained.

(2) Trial of offences against other laws. All ofences under any other law shall be investigated inquired into, tried and otherwise dealt with acording

to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying

or otherwise dealing with such offences.

So while Sub-section (1) provides for investigation of offences punishable unde Ranbir Penal Code, Sub-section (2) provides for investigation of

offences under any other law. The only limitation is that such investigation inquiry and trial is subject to the provisions of the enactment.

Let us now examine whether there is any conflict as suggested. Section 12 of TADA Act reads as under:-

Power of Designated Courts with respect to other offences. -- (1) When trying any offence, a Designated Court may also try any other

offence with which the accused may, under the Code be charged at the same trial if the offence is connected with such other offence.

(2) If, in the course of any trial under this Act, of any offence, it is found that the accused person has committed any other offence under this Act or

any rule made there under or under any other law, the designated court may convict such person of such other offence and pass any sentence

authorised by this Act or such rule or, as the case may be, such other law, for the punishment thereof.

It is only an enabling provision. But the designated court can try another offence only if the other offence is connected with the offence defined

u/s 3. The contention of Mr. Hussain that since offence of murder is punishable u/s 302 RPC, but Section 12 enables its trial by designated court,

the conflict is obvious because Parliament has no power to enact Code of Criminal Procedure for the State and, therefore, Article 246 is not

applicable. However, as noticed above Sub-section (2) of Section 5 of our Code provides for investigation, inquiry and trial of offences punishable

under TADA Act under the Code. So there is no conflict between the two provisions because TADA Act being the any other law, referred to u/s

5(2) of the Code, trial u/s 12 of TADA Act does not offend any provision of the Code muchless Section 5 as argued by Mr. Hussain. Moreover,

vires of Section 3(1) of TADA Act having been upheld by the Constitution Bench in Kartar Singh v. State of Punjab the question of conflict would

not arise if the investigation, inquiry and trial is permitted under the Code of Criminal Procedure, 1889. We have already found that it is permitted

u/s 5(2) of the Code. Moreover, the Act has provided adequate safeguards against the power to be exercised u/s 12. This was noticed by the

Apex Court in Hitendra Vishnu Thakur and Others Vs. State of Maharashtra and Others, holding that:-

Thus, the true ambit and scope of Section 3(1) is that no conviction u/s 3(1) of TADA can be recorded unless the evidence led by the

prosecution establishes that the offence was committed with the intention as envisaged by Section 3(1) by means of the weapons etc. as

enumerated in the section and was committed with the motive as postulated by the said section. Even at the cost of repetition, we may say that

where it is only the consequence of the criminal act of an acused that terror, fear or panic is caused, but the crime was not committed with the

intention as envisaged by Section 3(1) to achieve the objective as envisaged by the section an accused should not be convicted for an offence u/s

3(1) of TADA. To bring home a charge u/s 3(1) of the Act, the terror or panic etc. must be actually intended with a view to achieve the result as

envisaged by the said section and not be merely an incidental fall out or a consequence of the criminal activity. Every crime, being a revolt against

the society, involves some violent activity which results in some degree of panic or create some fear or terror in the people or a section thereof, but

unless the panic, fear or terror was intended and was sought to achieve either of the objectives as envisaged in Section 3(1), the offence would not

fall stricto sensu under TADA. Therefore, as was observed in Kartar Singh case by the Constitution Bench.

Section 3 operates when a person not only intends to over we the Government or create terror in people etc., but he uses the arms and

ammunitions which results in death or is likely to cause and damage to property etc. In other words, a person becomes a terrorist or is guilty of

terrorist activity when intention, action and consequences all the three ingredients are found to exist.

Where the Designated Court finds after taking cognizance of the offence, that the offence does not even prima-facie fall under TADA, it must

proceed to act u/s 18 of TADA. That section reads as follows :-

Power to transfer cases to regular courts. -- Where, after taking cognizance of any offence, a Designated Court is of opinion that the offence

is not triable by it, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for the trial of such offence to any Court

having jurisdiction under the Code and the Court to which the cases is transferred may proceed with the trial of the offence as if it had taken

cognizance of the offence.

Section 18 vests jurisdiction in a Designated Court to transfer the case for trial by any Court having jurisdiction under the Cr.P.C. where after

taking cognizance of the offence, the Designated Court is of the opinion, for reasons to be recorded, that the offence is not such as is triable by the

Designated Court in as much as the offence does not fall within the true ambit and parameters of the provisions of TADA, it is obliged to transfer

the case to the Court of competent jurisdiction for its trial and on such transfer, the Court to which the case is so transferred acquires the

jurisdiction to proceed with the trial of the offence, as if the transferee Court had itself taken cognizance of the offence.

This ensures fair and just procedure in the matter of trial in case the offence committed under any other law is not connected with the offence

made punishable u/s 3 of the Act.

So all the three challanges having failed the petition is dismissed as no other challenge was pressed. No costs.