(1.)On the backdrop of escalation of terrorist activities in the country, Parliamentary wisdom prompted it. to introduce in the Statute Book the Terrorist and Disruptive Activities (Prevention) Act, 1985 and since there was an expectation that the activities concerned would be curbed within a period of two years, life of the said Act of 1985 as restricted to a period of two years from the date of its commencement. But unfortunately, the terrorist violence continued unabated and resultantly the Government thought it prudent to extend the life of the legislation from time to time. In one of the earliest pronouncements of this Court after the introduction of the said Act, this Court in Usmanbhai Dawoodbhai Memon and others v. State of Gujarat (1988 (2) SCC 271) in no uncertain terms stated that the intendment of the legislation is to provide special machinery to combat the growing menace of terrorism in different parts of the country. This Court also did emphasise that since the legislation is a drastic one, the same should not ordinarily be resorted to unless the government's law enforcing machinery fails. In paragraphs 17 and 18 of the Report this Court observed :
"17. The legislature by enacting the law has treated terrorism as a special criminal problem and created a special court called a Designated Court to deal with the special problem and provided for a special procedure for the trial of such offences. A grievance was made before us that the State Government by notification issued under Section 9(1) of the Act has appointed District and Sessions Judges as well as Additional District and Sessions Judges to be judges of such Designated Courts in the State. The use of ordinary courts does not necessarily imply the use of standard procedures. Just as the legislature can create a special court to deal with a special problem, it can also create new procedures within the existing system. Parliament in its wisdom has adopted the framework of the Code but the Code is not applicable. The Act is a special Act and creates a new class of offences called terrorist acts and disruptive activities as defined in Sections 3(1) and (2) and provides for a special procedure for the trial of such offences. Under Section 9(1), the Central Government or a State Government may by notification published in the Official Gazette, constitute one or more Designated Courts for the trial of offences under the Act for such area or areas, or for such case or class or group of cases as may be specified in the notification. The jurisdiction and power of a Designated Court is derived from the Act and it is the Act that one must primarily look to in deciding the question before us. Under Section 14(1), a Designated Court has exclusive jurisdiction for the trial of offences under the Act and by virtue of Section 12(1) it 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. Where an enactment provides for a special procedure for the trial of certain offences, it is that procedure that must be followed and not the one prescribed by the Code.
18. No doubt, the legislature by the use of the words 'as if it were' in Section 14(3) of the Act vested a Designated Court with the status of a Court of Session. But, as contended for by learned Counsel for the State Government, the legal fiction contained therein must be restricted to the procedure to be followed for the trial of an offence under the Act i.e. such trial must be in accordance with the procedure prescribed under the Code of the trial before a Court of Session, insofar as applicable. We must give some meaning to the opening words of Section 14(3) 'Subject to the other provisions of theAct' and adopt a construction in furtherance of the object and purpose of the Act. The manifest intention of the legislature is to take away the jurisdiction and power of the High Court under the Code with respect to offences under the Act. No other construction is possible. The expression 'High Court' is defined in Section 2(1)(e) but there are no functions and duties vested in the High Court. The only mention of the High Court is in Section 20(6) which provides that Sections 366-371 and Section 392 of the Code shall apply in relation to a case involving an offence triable by a Designated Court, subject to the modifications that the references to 'Court of Session' and 'High Court' shall be construed as references to 'Designated Court' and 'Supreme Court' respectively. Section 19(1) of the Act provides for a direct appeal, as of right, to the Supreme Court from any judgment or order of the Designated Court, not being an interlocutory order. There is thus a total departure from different classes of criminal courts enumerated in Section 6 of the Code and a new hierarchy of courts is sought to be established by providing for a direct appeal to the Supreme Court from any judgment or order of a Designated Court not being an interlocutory order, and substituting the Supreme Court for the High Court by Section 20(6) in the matter of confirmation of a death sentence passed by a Designated Court."
In a subsequent decision in Niranjan Singh (Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya, 1940 (4) SCC 76), it has been stated that while extra care must be taken to ensure that those of whom the legislature did not intend to be covered by the express language of the statute are not to be roped in by stretching the language of the Act in question but that however, does not mean and imply adoptation of a negative attitude if the materials so justify. In this context, reference may be made to the decision of this Court in Anil Sanjeev Hegde v. State of Maharashtra (1992 Supp (2) SCC 230).
(2.)One other aspect of the special statute (Terrorist and Disruptive Activities (Prevention) Act) ought to be noted in order to give credence to the legislative wisdom by reason of the incorporation of Section 12 therein. For convenience sake Section 12 is noticed hereinbelow :
" 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 thereunder 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."
(3.)Obviously, the effort on the part of the legislature is not to have two sets of trial, one under general law and the other under special statute and availability of such a power cannot but be ascribed to be in tune with the jurisprudence of the country. Be it noted that the instant appeal is statutory in nature in terms of the provisions of Section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 and arises against the judgment and decision of the Designated Court of Ferozepur in Sessions Trial No. 28 of 2000.