- (1.) These three appeals arise out of the charge levelled by the police against the five petitioners of the above special leave petition under Sec. 3 of the Terrorists and Disruptive Activities (Prevention) Act, 1987 (hereinafter called 'the Act'), Secs. 302, 307 read with Ss. 147, 148 and 149, I.P.C. and S. 37 of the Bombay Police Act, 1951, for the murder of one Raju alias Avtar Singh, son of the appellant of Criminal Appeal No. 703 / 89, and for injuries caused to his companion Keshav Vitthal, the first informant. The facts giving rise to these proceedings are as under: On the afternoon of the 12th July, 1989 when Raju and his companion Keshav were proceeding on a motor-cycle at about 3.00 p.m. they were intercepted by the accused Jitendra and one another known as a wrestler. Following some altercation and heated exchange of words between them, the other three accused persons arrived at the spot. Two of them were armed with knives and the third possessed an iron-rod. On seeing them Keshao who was on the pillion seat took to his heels whereupon Raju who was in the driver's seat abandoned the motor-cycle and ran in another direction. Two of the accused persons ran after Raju while the others including the wrestler chased Keshav. On being overtaken accused Vijay gave a knife blow on the chest of Keshav and his companion Santosh dealt blows with the iron-rod. Thereafter all the three fled from the scene of occurrence. The other two who had chased Raju are alleged to have killed him as he was found lying in an unconscious condition on the road. Both the injured were removed to the hospital. Raju succumbed to the injuries soon after reaching the hospital. Keshav, however, responded to medical treatment and has survived to give evidence.
(2.) On the same day at about 5.30 p.m. the first information report was lodged by the injured Keshav. On the basis thereof an entry was made in CR No. 138/89 and a case under Ss. 302 and 307 read with Ss. 147, 148 and 149, I.P.C. and Sec. 37 of the Bombay Police Act was registered. The accused were arrested on 15th July, 1989 and were taken on remand for 9 days which period was extended up to 29th July, 1989 on which date the Investigating Officer invoked Sec. 3 of the Act. On 3rd August, 1989 the accused moved an application in the designated Court, Jalgaon, for bail, inter alia, contending that the provisions of the Act had been wrongly and maliciously invoked. The said application was heard and decided by the designated Court on 2nd September, 1989 which took the view that Sec. 3 of the Act was wrongly applied. Against that order the State of Maharashtra has preferred Criminal Appeal No. 712/ 89. As the accused were directed to approach the regular Court, they moved two bail applications before the Fourth Additional Sessions Judge, Ahmednagar. The said bail applications were, however, rejected on 25th September, 1989. Against the said rejection the accused approached the High Court. While those matters were pending in the High Court, the prosecution submitted a charge-sheet against the accused in the designated Court at Jalgaon. Thereupon the High Court rejected the applications. The accused again approached the designated Court for bail. The designated Court once again came to the conclusion that, in the facts and circumstances of the case, Sec. 3 of the Act had no application and discharged the accused on that count under Sec. 227 of the Code of Criminal Procedure, 1973 (hereinafter called 'the Code'). By the said impugned order of 27th October, 1989 the case was ordered to be transferred to the Court of Session, Ahmednagar, on the other charges and the accused were granted liberty to move that Court for bail. Against the said order Criminal Appeal No. 703/ 89 has been preferred by Raju's father while the State of Maharashtra has filed Criminal Appeal No. 13/90. Thereupon, the accused approached the High Court for bail but the High Court rejected their application and directed early hearing of the case. Special Leave Petition No. 2459/89 is preferred by the original accused against the said order.
(3.) The Act was enacted to make special provisions for the prevention of, and for coping with, terrorist and disruptive activities and for matters connected therewith or incidental thereto. Section2(d) defines the expression 'disruptive activity' to have the meaning assigned to it in S.4. Section2(h) defines the expression 'terrorist act' to have the meaning assigned to it under S. 3(1) of the Act. The relevant part of S. 3(1) provides that whoever with intent (i) to overawe the Government as by law established or (ii) to strike terror in the people or any section of the people or (iii)to alienate any section of the people or (iv) to adversely affect the harmony amongst different sections of the people, does any act or thing by using any of the lethal weapons mentioned therein in such a manner as to cause death of/ or injuries to any person or persons, commits a terrorist act. Section 3(2) lays down the penalty for the commission of such an act. Section 4(1) prescribes the penalty for indulging in any disruptive activity. Section4(2) defines a disruptive activity to mean any action taken in whatever manner (i)which questions, disrupts or is intended to disrupt, whether directly or indirectly, the sovereignty and territorial integrity of India, or (ii)which is intended to bring about or supports any claim, whether directly or indirectly, for the cession of any part of India or the secession of any part of India from the Union. Section 6 provides enhanced penalty for aiding any terrorist or disruptionist. Part III terrorists and disruptionists charged with the commission of any offence under the Act. Section 9 empowers the Central Government as well as the State Governments to constitute by notification 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. Section 9(6) provides that a person shall not be qualified for appointment as a Judge or an Additional Judge of a Designated Court unless he is immediately before such appointment a Sessions Judge or an Additional Sessions Judge in any State. Section 11 says that every offence punishable under the provisions of the Act or the rules made thereunder shall be tried by a Designated Court constituted under Section 9(1) of the Act. Section 12(1) is relevant for our purpose and reads as under: "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." Section 14 sets out the procedure and powers of Designated Courts. Sub-section (3) of Section 14 is relevant for our purpose. It reads as under: "Subject to other provisions of this Act, Designated Court shall for the purpose of any offence have all the powers of a Court of Session and shall try such offences as if it were a Court of Session so far as may be in accordance with the procedure prescribed in the Code for the trial before a Court of Session." Section 16 offers protection to witnesses. Section 17 gives precedence to trials. by Designated Courts. Section 18 empowers the Designated Courts to transfer cases to regular Courts. This Section reads as under: "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 case is transferred may proceed with the trial of the offence as if it had taken cognizance of the offence." Section 19 provides for an appeal to the Supreme Court both on facts and on law from any judgment, sentence or order, other than an interlocutory order, of a Designated Court. Section 20(1) makes an offence under the Act or the rules, a cognizable one. Sub-section (8) of Section 20 lays down that notwithstanding anything contained in the Code, no person accused of an offence punishable under the Act or any rule made thereunder shall, if in custody, be released on bail or on his own bond unless the public prosecutor has been given an opportunity to oppose his release and where he opposes his release, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. Section 21 mandates the Designated Court to presume, unless the contrary is proved, that the accused has committed an offence under Section 3(1) if one of the four things set out in clauses (a) to (d), is proved. Section 22 permits identification of the offender on the basis of his photograph. Section 28 empowers the Central Government to make rules on any of the matters set out in clauses (a) to (f) of sub-section (2) thereof. Such rules have to be laid before both the Houses of Parliament. This in brief is the scheme of the Act.;