- (1.)BOTH these petitions under Article 226 of the Constitution of India can be disposed of by this common judgment since they arise out of a common judgment dated December 20, 1991 in Discharge Application No. 171 of 1991 in Tada R. A. No. 52 of 1991. Both the petitioners are challenging legality and correctness of the impugned order. Impugned order is at Exhibit A to the compilation. Compilation taken on record.
(2.)PURSUANT to a complaint dated 31st January, 1991 filed by Jayantilal Nanji of M/s Dedhia Jewellers, at Matunga Police Station, Bombay, Crime No. 113 of 1991 came to be registered against the 6 unknown and unidentified persons for offence punishable under section 395 of the Indian Penal Code read with section 25 (3) of the Arms Act. Pursuant to this complaint, investigation commenced and statements of various witnesses came to be recorded. During investigation, suspected accused were also arrested which include the present petitioners. Charge-sheet also came to be filed by the investigating officer in respect of the incident dated 31st January, 1991 in which the petitioner in Criminal Writ Petition No. 223 of 1991 is shown as accused No. 4 whereas applicant in Criminal Application No. 694 of 1992 is shown as accused No. 5. Both these petitioners will be hereinafter referred to as Accused Nos. 4 and 5 respectively.
(3.)IN the complaint lodged with the Matunga Police Station it was alleged that on 31-3-1991 at about 16. 30 Hrs. in a business premises known as Dedhia Jewellers, Laxminarayan Lane, Matunga, Bombay 19, a dacoity was committed by 6 unknown persons of the age group of the age group of 25 to 30 years. These 6 persons entered the shop premises, 5 persons were having deadly weapons like chopper in their hands and one person was having revolver. At the point of these deadly weapons, these 6 accused ransacked the business premises of Dedhia Jewellers and thereby committed an offence punishable under section 395 of the I. P. C. read with section 25 (3) of the Arms Act. In this incident, the accused are alleged to have ransacked the gold ornaments and cash worth Rs. 58,64,000/ -. Details of ornaments and cash amount were also furnished in the compliant. The Matunga Police Station registered the case being C. R. No. 113/91. During investigation suspected accused came to be arrested and as stated earlier, petitioner in Writ Petition No. 223/92 is accused No. 4 whereas applicant in Criminal Application No. 694 of 1992 is accused No. 5. During the investigation property which is subject matter of dacoity was also recovered at the instance of various suspected accused persons. In the proceeding before us, we are concerned, with accused Nos. 4 and 5. Charge sheet submitted by the police in Court relating to these accused persons reads as under :
"that THE accused No. 1 to 3 and six absconding accused on the day of 31st January, 1991 between 15. 20 Hrs. and 15. 35 hrs. at Dedhia Jewellers, Laxminarayan Lane, Matunga, Bombay-19 committed dacoity in respect of 17 kgs. of gold ornaments and cash of Rs. 15,83,500/-by using fire arm and choppers and thereby committed an offence punishable under section 395 I. P. C. "
SECONDLY that the accused Nos. 1, 2, 3, and six other absconding accused on the aforesaid day and aforesaid time did commit dacoity in respect of aforesaid ornaments and cash by using deadly weapons to wit, firearm and chopper. Out of them two choppers were recovered, and aid and abeit one another for committing the offence and thereby committed an offence punishable under section 397 of I. PC. THIRDLY that the accused Nos. 1, 2, 3 and six absconding accused on the aforesaid date and time and aforesaid place did commit dacoity in respect of gold ornaments and cash by using deadly weapons to wit. a fire arm (not recovered) and choppers (out of that two choppers were recovered) and aid and abeit one another for committing the offence and thereby committed an offence punishable under section 398, 34 I. P. C. FOURTHLY that the accused No. 4 and 5 between 31st January, 1991 and 19th March, 1991 dishonestly received/retained stolen property to wit gold and gold ornaments belong to Dedhia Jewellers knowingly or having reason to believe that the possession of the same had been transferred by the commission of dacoity and thereby committed an offence punishable under section 412 I. P. C. FIFTHLY that the accused No. 4 and 5 between 31st January, 1991 and 19th March, 1991 voluntarily assisted in concealing and or disposing of property to wit a gold and gold ornaments which accused knew or had reason to believe to be stolen property and thereby committed an offence punishable under section 414 I. P. C. SIXTHLY that the accused No. 1, 2, 3 and six absconding accused of their common intention on the aforesaid day and aforesaid time and place during the course of same transaction used fire arm (not recovered) to wit revolver in contravention of section 5 (1) (a) of the Arms Act and thereby committed an offence punishable under section 27 (1) of "arms Act r/w 341 I. P. C. SEVENTHLY that in furtherance of their common intention accused No. 1, 2, 3 and absconding accused on the aforesaid day and at the aforesaid time and place being the members of dacoit and during the course of same transaction acquired and was in their possession of choppers more than 9" long and thereby committed an offence punishable under section 25 (1b) r/w 4 of the Arms Act. EIGHTLY that in furtherance of their common intention accused No. 1 to 3 and six absconding accused on the aforesaid date and aforesaid place being the members of dacoit and during the course of same transaction with intent to strike terror in the people did certain act as mentioned in the aforesaid charge by using fire arm and lethal weapons to wit revolver and choppers in such a manner as to cause fear in the minds of complainants witnesses, and residents of Matunga at the time of committing dacoity and co-jointly committed terrorist act and in particular accused No. 4 and 5 financially aided and abeited the offence and actually helped in disposing the property concerned in commission of dacoity and accused No. 1, 2 and 3 along with the absconding accused being the actual participants in commission of dacoity and accused No. 4 and 5 being the abietor and aiders have committed the terrorist act and thereby all the accused committed an offence under section 3 (2) (3) of Terrorist and Disruptive Activities (Prevention) Act, 1987. Originally, the suspected accused persons including accused Nos. 4 and 5 were produced before the Metropolitan Magistrate, 30th Court, Kurla, Bombay and they were remanded from time to time. Accused No. 4 made an application to the learned Magistrate on 18-3-1991 for releasing him on bail. However, before the bail order could be passed, Matunga Police Station applied provisions of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as TADA), and as a result thereof, the suspected accused including the present petitioners were produced before the Designated Court on 22-3-1991. The learned Judge of the Designated Court took cognizance of the offence and remanded the suspected accused from time to time. Accused No. 4 then filed an application under section 18 of the Act praying for discharge under sections 3 and 5 of the TADA. He further prayed that the case be transferred to regular Court for trial.
3. Accused No. 5 on 21-4-1991, filed application for discharge and bail before the learned Judge of the Designated Court, Bombay, praying for discharge under sections 3 and 5 of the TADA. Two more applications were also filed by accused Nos. 1 and 2 respectively. All these applications were heard together by the Judge of the Designated Court and vide his impugned order he rejected application of accused Nos. 1 and 2. As far as application for discharge and bail filed by accused Nos. 4 and 5 are concerned, the learned Judge did discharge them under TADA, but however, in para 33 of the order he observed as under :-"therefore, I see no difficulty in passing the order in favour of the T/accused No. 4 and 5 in view of the Ld. P. P. not bringing on record and satisfying this Court from the material that, Prima facie, there is any charge made out by him against the Terrorist accused No. 4 and 5. It can be seen that the Ld. P. P. according to me and my opinion has conceded in favour of the T/accused No. 4 and 5 as they absent on the scene of offence on the day, time and place and it can also be seen in the instant case that the T/accused No. 4 was given the melted gold bars by the T/accused Nos. 1, 2 and 3 for the purpose of disposing of the same. It can also be seen that the T/accused No. 5 had purchased the same from T/accused No. 4. However, after evaluating the material on record Prima facie, there appears to be charge against T/accused No. 4 and 5, Under I. P. C. It can be seen that the T/accused No. 4 has accepted the property from T/accused No. 1 to 3 and has taken for disposal and accordingly approached to T/ accused No. 5 for selling the same. Therefore there is charge against the T/accused No. 4 and 5 under I. P. C. made out from the material on the record and at the time of trial to show the link with the T/accused No. 1, 2 and 3, in my opinion, it would be better that their case should not be ordered to be transferred to the regular Court. I, therefore, proceed to pass the following order. . . . . "
The learned Judge discharged accused Nos. 4 and 5 under TADA and ordered to release them on bail in the sum of Rs. 1,00,000/- with one surety in like amounts. The learned Judge of the Designated Court also directed accused Nos. 4 and 5 to report to Matunga Police Station between 6 p. m. and 8 p. m. every day, till disposal of the case. The net result of the above finding and order is that accused Nos. 4 and 5 came to be discharged under TADA and were directed to be released on bail as indicated in the order.