- (1.) All these appeals are directed against the judgment and order dated 19th March, 2001 passed by the Designated court No. 3 at Ahmedabad in Terrorist Case no. 2 of 1997, Terrorist Case No. 33 of 1994 and Terrorist Case No. 16 of 1995. The two Judge bench before whom these appeals were posted for hearing referred the matters to a three-Judge Bench by an order dated 24.9.2002. The said Order reads as under: "The issue involved concerns the admissibility of a confession in terms of Section 15 of the Terrorist and Disruptive activities (Prevention) Act, 1987 (in short "tada Act"). Consequently, therefore, the other provisions as contained in Sections 12 and 18 have to be read in order to assess the legislative intent therein. This Court in State v. Nalini, 1999 (5) scc 253, in paragraphs 80 and 81 stated the law to be as below : "80. Section 12 of TADA enables the Designated Court to jointly try, at the same trial, any offence under tada together with any other offence "with which the accused may be charged" as per the Code of criminal Procedure. Sub-section (2) thereof empowers the Designated court to convict the accused, in such a trial, of any offence "under any other law" if it is found by such Designated court in such trial that the accused is found guilty of such offence. If the accused is acquitted of the offences under TADA in such a trial, but convicted of the offence under any other law, it does not mean that there was only a trial for such other offence under any other law. 81. Section 15 of TADA enables the confessional statement of an accused made to a police officer specified therein to become admissible "in the trial of such a person". It means, if there was a trial of any offence under tada together with any other offence under any other law, the admissibility of the confessional statement would continue to hold good ven if the accused is acquitted under tada offences. " the view expressed above stands in unison with view expressed in paragraphs 408 and 674 and same is noticed as below : "408. As to whether any offence under section 3 or Section 4 of TADA is made out in the present case, we will consider at subsequent stage of the judgment. In view of the decision of this Court in Bilal ahmed Kaloo Case contention of Mr. Natarajan is rather correct. However, it appears to us that while holding the confession to be inadmissible in a trial when the accused is acquitted of offences under Section 3 or Section 4 of TADA, provisions of Section 12 of TADA were not taken into consideration by this court in the said judgment. Section 12 reads as under : "12. 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. ""674. Having regard to the provisions of Section 12 of the TADA Act, the confession recorded under Section 15 will be admissible in the trial of a person, co-accused, abettor or conspirator for an offence under the TADA Act or the rules made thereunder and such other offence with which such a person may be charged at the same trial under the provisions of the Criminal Procedure code provided the offence under the tada Act or the rules made thereunder is connected with such other offence. " we are, however, constrained to record our doubt as regards the state of the law as declared by the 3-Judge Bench of this court in Nalini (supra). The issue, therefore, is whether the confessional statement would continue to hold good even if the accused is acquitted under TADA offences and there is a clear finding that TADA Act has been wrongly taken recourse to or the confession loses its legal efficacy under the act and thus rendering itself to an ordinary confessional statement before the police under the general law of the land. Nalini (supra) , however, answers this as noticed above, in positive terms but we have some doubts pertaining thereto since the entire justice delivery system is dependent upon the concept of fairness: it is the interest of justice which has a pre-dominant role in the criminal jurisprudence of the country - The hall-mark of justice is the requirement of the day and the need of the hour. Once the court comes to a definite finding that invocation of TADA Act is wholly unjustified or there is utter frivolity to implicate under tada, would it be justified that Section 15 would be made applicable with equal force as in TADA cases to book the offenders even under the general law of the land. There is thus doubt as noticed above!! on the wake of the aforesaid and having regard to the decision of the Constitution bench of this Court in Pradip chandra Parija v. Pramod Chandra patnaik, (2002) 1 SCC 1, we do feel it expedient to direct the Registry for placing this matter before Hon'ble the Chief justice of India for constituting a 3-Judge bench for the purpose. It is ordered accordingly. "
(2.) In turn, the three-Judge Bench by an order dated 9.3.2004 has referred the matters to a five-Judge Bench. The order reads : "This matter has been referred to a 3 Judge bench doubting the correctness of the decision in State Vs. Nalini, 1999 (5) SCC 253 as to admissibility of a confession in terms of Section 15 of the Terrorist and Disruptive Activities (Prevention) Act, 1987. It is stated that there are similar provisions available even under Prevention of Terrorist Activities act (POTA). If really the question as posed by the 2-Judge Bench is to be answered, it could only be done by a Bench of 5 Judges as Nalini's case (supra) has been decided by a bench of three learned Judges. Therefore, this matter is referred to 5-Judge Bench. The registry is directed to place the papers before Hon'ble the Chief Justice of India for appropriate orders. "this is how the matters have been placed before this Bench.
(3.) The Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as the Act) is a piece of Legislation containing 30 Sections. Though miniature legislation, the act tends to be very harsh and drastic containing the stringent provisions to combat the menace of terrorism which has taken an endemic form indulging in wanton killings, arson, looting of properties and other heinous crimes affecting human rights and individual liberty. The constitutionality of the Act has been concluded by the Constitution Bench of this court in Kartar Singh Vs. State of Punjab, (1994) 3 SCC 569. The validity of Section 15 of the Act which would be relevant for the present purpose has been held to be intra-virua the Constitution. In paragraphs 217, 218, 220, 222, 236 and 243 it is said : "217.If the procedural law is oppressive and violates the principle of just and fair trial offending Article 21 of the Constitution and is discriminatory violating the equal protection of laws offending article 14 of the Constitution, then Section 15 of TADA Act is to be struck down. Therefore, it has become inevitably essential to examine the classification of 'offenders' and 'offences' so as to enable us in deciding whether Section 15 is violative of Articles 14 and 21 of the Constitution. 218. The principle of legislative classification is an accepted principle whereunder persons may be classified into groups and such groups may differently be treated if there is a reasonable basis for such difference or distinction. The rule of differentiation is that in enacting laws differentiating between different persons or things in different circumstances which govern one set of persons or objects such laws may not necessarily be the same as those governing another set of persons or objects so that the question of unequal treatment does not really arise between persons governed by different conditions and different set of circumstances. 220. Coming to the distinction made in tada Act grouping the terrorists and disruptionists as a separate class of offenders from ordinary criminals under the normal laws and the classification of the offences under TADA Act as aggravated form of crimes distinguishable from the ordinary crimes have to be tested and determined as to whether this distinction and classification are reasonable and valid within the term of Article 14 of the Constitution. In order to consider the question as to the reasonableness of the distinction and classification, it is necessary to take into account the objective for such distinction and classification which of course need not be made with mathematical precision. Suffice, if there is little or no difference between the persons and the things which have been grouped together and those left out of the groups, the classification cannot be said to be a reasonable one. In making the classification, various factors have to be taken into consideration and examined as to whether such a distinction or classification justifies the different treatment and whether they subserve the object sought to be achieved. 222. As pointed out supra, the persons who are to be tried for offences specified under the provisions of TADA Act are a distinct class of persons and the procedure prescribed for trying them for the aggravated and incensed nature of offences are under different classification distinguishable from the ordinary criminals and procedure. This distinction and classification of grouping of the accused and the offences to be tried under tada are to achieve the meaningful purpose and object of the Act as reflected from the preamble as well as the 'statement of Objects and Reasons' about which we have elaborately dealt with in the preceding part of this judgment. 236. Keeping the above proposition, we have to decide whether the provisions of Section 15 of the 1987 Act (TADA) contravene Article 14. True, if the classification is shown to be arbitrary and unreasonable and without any substantial basis, the law would be contrary to the equal protection of laws by article 14.243. The above decision, in our view, cannot be availed of for striking down section 15 of TADA Act because the classification of 'offenders' and 'offences' to be tried by the Designated court under the TADA Act or by the special Courts under the Act of 1984, are not left to the arbitrary and uncontrolled discretion of the Central Government but the Act itself has made a delineated classification of the offenders as terrorists and disruptionists in the tada Act and the terrorists under the special Courts Act, 1984 as well as the classification of offences under both the acts. ";