Section 20-A of TADA – Mandatory – whether the power of approval vested in the District Superintendent of Police could be exercised by either the Government or the Additional Police Commissioner, Surat in the instant case. – Apex court held that A careful reading of the section leaves no manner of doubt that the provision starts with a non obstante clause and is couched in negative phraseology. It forbids recording of information about the commission of offences under TADA by the Police without the prior approval of the District Superintendent of Police. The question is whether the power of approval vested in the District Superintendent of Police could be exercised by either the Government or the Additional Police Commissioner, Surat in the instant case. Our answer to that question is in the negative. The reasons are not far to seek. We say so firstly because the statute vests the grant approval in an authority specifically designated for the purpose. That being so, no one except the authority so designated, can exercise that power. Permitting exercise of the power by any other authority whether superior or inferior to the authority designated by the Statute will have the effect of re-writing the provision and defeating the legislature purpose behind the same – a course that is legally impermissible – Acquitted all accused as there was no evidence under penal laws apart from TADA =
In Criminal (TADA) case No.59 of 1995 and 2 of 2000 arising out of
C.R. No.32 of 1993 the Designated Court has similarly convicted some of the
accused persons who are (appellants before us in Criminal Appeals No.110 of
2009 and 659 of 2009). =
The State has also assailed in the appeals filed by
it the judgment of the Trial Court and sought enhancement of the sentence
awarded to those convicted by it in Criminal Appeals No.303-304 of 2009.=
It was contended that the conviction and sentence of the appellants
ought to be set aside not only because the provision of Section 20-A (1) is
mandatory but also because the power to grant approval for recording of
information about the commission of an offence under the Act could be
exercised only by the authority concerned under such provision and by
nobody else.
The designated authority could not, contended Mr. Kumar
abdicate the exercise of power in favour of any other authority, no matter
such other authority was higher in rank to the designated authority.
It was also contended that if the law prescribes a particular procedure for
doing a particular thing then any such thing could be done only in the
manner prescribed or not at all.
Inasmuch as the procedure prescribed by
law which required the approval of the competent authority to grant
approval for recording the information had not been followed, the trial and
conviction of the appellants in breach of a mandatory provision was legally
unsustainable.
Apex court held that
whether these approvals can be said
to be sufficient compliance with the provisions of Section 20-A of TADA
that reads as under:-
“20-A Cognizance of offence.
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.
No court shall take cognizance of any offence under this Act without the
previous sanction of the Inspector-General of Police, or as the case may
be, the Commissioner of Police.”
17. A careful reading of the above leaves no manner of doubt that the
provision starts with a non obstante clause and is couched in negative
phraseology. It forbids recording of information about the commission of
offences under TADA by the Police without the prior approval of the
District Superintendent of Police. The question is whether the power of
approval vested in the District Superintendent of Police could be exercised
by either the Government or the Additional Police Commissioner, Surat in
the instant case. Our answer to that question is in the negative. The
reasons are not far to seek. We say so firstly because the statute vests
the grant approval in an authority specifically designated for the purpose.
That being so, no one except the authority so designated, can exercise
that power. Permitting exercise of the power by any other authority
whether superior or inferior to the authority designated by the Statute
will have the effect of re-writing the provision and defeating the
legislature purpose behind the same – a course that is legally
impermissible
2014 – July. Part – http://judis.nic.in/supremecourt/filename=41775
T.S. THAKUR, C. NAGAPPAN
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