NIRANJAN SINGH KARAM SINGH PUNJABI ADVOCATE STATE OF MAHARASHTRA JITENDRA BHIMRAJ BIJJAYA Vs. JITENDRABHIMRAJBIJJAYA:JITENDRABHIMRAJBIJJAYA:JITENDRA BHIMRAJ BIJJAYA:STATE OF MAHARASHTRA

JUDGEMENT

(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:

(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: