Supreme Court: Prior Approval Mandatory for Recording Offence under TADA Act (Ebha Arjun Jadeja & Ors. vs. State of Gujarat, 2019)

Date of the Judgment: October 16, 2019
Citation: (2019) INSC 1148
Judges: Deepak Gupta, J., Aniruddha Bose, J.
Can police record information about an offense under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA Act) without prior approval from the District Superintendent of Police? The Supreme Court of India addressed this critical question in a case where the accused were found in possession of illegal arms. The court clarified that recording information about a TADA Act offense requires prior approval from the District Superintendent of Police, and failure to obtain this approval invalidates the proceedings under the TADA Act. This judgment emphasizes the mandatory nature of Section 20-A(1) of the TADA Act. The judgment was delivered by a division bench comprising Justice Deepak Gupta and Justice Aniruddha Bose.

Case Background

The case revolves around the arrest of Ebha Arjun Jadeja and two others on April 10, 1995. Police Inspector C.J. Singh, while on night patrol, received information that Ebha Arjun Jadeja, wanted in connection with a previous crime, was coming to his village. A police team set up a check post and intercepted a vehicle in which Jadeja and two other individuals were traveling. Upon searching the individuals, the police recovered illegal arms, including a foreign-made pistol and revolver from Jadeja, and country-made weapons from the other two.

Initially, a First Information Report (FIR) was registered under the Arms Act, 1959. However, the police also added Section 5 of the TADA Act, stating that the accused appeared to be planning a terrorist activity. The District Superintendent of Police granted sanction to add Section 5 of TADA Act on the same day. The accused argued that the TADA Act charges were invalid because the police recorded the information about the offense without the prior approval of the District Superintendent of Police, as required under Section 20-A(1) of the TADA Act.

Timeline:

Course of Proceedings

The Designated TADA Court dismissed the application filed by the accused for discharge due to non-compliance of Section 20-A(1) of the TADA Act. The accused then filed an appeal before the Supreme Court of India, challenging the order of the Designated TADA Court.

Legal Framework

The core legal provision in this case is Section 20-A(1) of the Terrorist and Disruptive Activities (Prevention) Act, 1987. This section states:

“20-A. Cognizance of offence.—(1) Notwithstanding anything contained in the Code, no information about the commission of an offence under this Act shall be recorded by the police without the prior approval of the District Superintendent of Police.”

This provision mandates that before the police can record any information about an offense under the TADA Act, they must first obtain the approval of the District Superintendent of Police. The Supreme Court has previously held that this provision is mandatory in nature.

Section 154(1) of the Code of Criminal Procedure, 1973 (CrPC) was also discussed in the judgment. It deals with the recording of information relating to cognizable offenses.

“154. Information in cognizable cases.—(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf:”

Arguments

The appellants (accused) argued that the police violated Section 20-A(1) of the TADA Act by recording information about the offense under the Act without prior approval from the District Superintendent of Police. They contended that the FIR, which included charges under the TADA Act, was invalid because it was recorded without the necessary approval. The appellants relied on previous judgments of the Supreme Court to support their claim that Section 20-A(1) is mandatory.

The respondents (State of Gujarat) argued that the FIR was initially registered under the Arms Act, and the addition of the TADA Act charges was a subsequent action. They also argued that Section 20-A(1) only bars the recording of information, not the registration of the FIR under the Arms Act. They further submitted that the District Superintendent of Police has to take a decision and, therefore, some information has to be placed before him before he can decide whether the sanction should be granted or not.

Issues Framed by the Supreme Court

The main issue before the Supreme Court was:

1. Whether the recording of information about the commission of an offense under the TADA Act without the prior approval of the District Superintendent of Police, as required by Section 20-A(1) of the TADA Act, vitiates the proceedings under the TADA Act.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court relied on the following cases and legal provisions:

Judgment

The Supreme Court held that the recording of information about an offense under the TADA Act without the prior approval of the District Superintendent of Police is a violation of Section 20-A(1) of the TADA Act and vitiates the proceedings under the Act. The Court emphasized that Section 20-A(1) is mandatory and that its non-compliance is not a curable defect.

The Court also clarified that while a police officer can record information and send a rukka to the police station for recording an FIR in cases of serious offenses like murder or rape, when the main offense is under TADA Act, the requirements of Section 20-A(1) must be met before recording the information.

The Court observed that in the present case, the basic material for constituting an offense under both the Arms Act and TADA Act was the same, i.e., recovery of prohibited arms in a notified area. Therefore, the non-compliance of Section 20-A(1) of the TADA Act was fatal.

“The law is therefore, clear that if Section 20-A(1) of TADA Act is not complied with, then it vitiates the entire proceedings.”

“What is prohibited under Section 20-A(1) of TADA Act is the recording of information. We can presume that the Legislature while introducing Section 20-A(1) in TADA Act was also aware of the provisions of Section 154 of CrPC. Therefore, the clear-cut intention was that no information of commission of an offence under TADA Act would be recorded by the police under Section 154 of CrPC without sanction of the competent authority.”

“In the case in hand, the only information recorded which constitutes an offence is the recovery of the arms. The police officials must have known that the area is a notified area under TADA Act and, therefore, carrying such arms in a notified area is itself an offence under TADA Act.”

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the mandatory nature of Section 20-A(1) of the TADA Act. The Court emphasized that the provision uses negative language and a non-obstante clause, which clearly indicates that prior approval from the District Superintendent of Police is essential before recording any information about a TADA offense. The Court also considered the legislative intent behind introducing Section 20-A(1), which was to ensure that a senior official reviews the matter to prevent misuse of the stringent provisions of the TADA Act. The Court also took into account the previous rulings of the Supreme Court, which consistently held that non-compliance with Section 20-A(1) is fatal to the proceedings under the TADA Act. The Court also considered that the basic material for constituting an offense under both the Arms Act and TADA Act was the same.

Logical Reasoning

Key Takeaways

• ✓ Prior approval of the District Superintendent of Police is mandatory before recording any information about an offense under the TADA Act.
• ✓ Non-compliance with Section 20-A(1) of the TADA Act is fatal and cannot be cured.
• ✓ The bar under Section 20-A(1) applies to information recorded under Section 154 of CrPC.
• ✓ Police can record information and send a rukka for FIR in cases of serious offenses, but must obtain prior approval for TADA offenses.
• ✓ If the basic material for constituting an offense under both the Arms Act and TADA Act is the same, the requirements of Section 20-A(1) must be met before recording the information.

Directions

The Supreme Court allowed the appeal, set aside the order of the Designated TADA Court, and discharged the appellants from the offenses under the TADA Act. However, the Court clarified that the appellants could still be prosecuted under other provisions of law, such as the Arms Act.

Development of Law

The ratio decidendi of this case is that prior approval from the District Superintendent of Police is mandatory before recording any information about an offense under the TADA Act. This judgment reinforces the mandatory nature of Section 20-A(1) of the TADA Act and clarifies the procedure for recording information when offenses under both the TADA Act and other laws are involved. There is no change in the previous position of law, but the court has clarified the procedure to be followed in cases where TADA Act and other offences are involved.

Conclusion

The Supreme Court’s judgment in Ebha Arjun Jadeja & Ors. vs. State of Gujarat emphasizes the importance of adhering to the procedural safeguards provided under the TADA Act. The court’s ruling makes it clear that the police cannot bypass the mandatory requirement of obtaining prior approval from the District Superintendent of Police before recording information about a TADA offense. This judgment serves as a reminder that procedural compliance is crucial, especially when dealing with stringent laws like the TADA Act.