Ebha Arjun Jadeja and Ors. Vs. The State of Gujarat - (Supreme Court) (16 Oct 2019)

FIR cannot be registered without sanction of Competent Authority in TADA Offences

MANU/SC/1408/2019

Criminal

Present appeal by the Accused is directed against the order passed by the Designated TADA Court whereby the application filed by the Accused that, they should be discharged due to non-compliance of Section 20-A(1) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (“TADA Act") was dismissed. Appellant No. 1/accused No. 1 was wanted in Crime registered against him under Section 25(1B)(a) and 27 of the Arms Act, 1959 and under Section 3 and 5 of TADA Act etc.

The law is therefore, clear that if Section 20-A(1) of TADA Act is not complied with, then it vitiates the entire proceedings. The Legislature while introducing Section 20-A(1) in TADA Act was also aware of the provisions of Section 154 of Code of Criminal Procedure, 1973 (CrPC). The clear-cut intention was that, no information of commission of an offence under TADA Act would be recorded by the police under Section 154 of CrPC without sanction of the competent authority. The reason why Section 20-A(1) was introduced into TADA Act in the year 1993 by amendment was that because the provisions of TADA Act were very stringent, the Legislature felt that a senior official should look into the matter to ensure that an offence under TADA is made out and then grant sanction.

The bar under Section 20-A(1) of TADA Act applies to information recorded under Section 154 of CrPC. This bar will not apply to a rukka or a communication sent by the police official to the District Superintendent of Police seeking his sanction. Otherwise, there could be no communication seeking sanction, which could not have been the purpose of TADA Act.

At the same time, where the information basically discloses an offence under TADA Act and the other offence is more in the nature of an ancillary offence then, the information cannot be recorded without complying with the provisions of Section 20-A(1) of TADA Act.

In the case in hand, the only information recorded which constitutes an offence is the recovery of the arms. The police officials must have known that, the area is a notified area under TADA Act and, therefore, carrying such arms in a notified area is itself an offence under TADA Act. It is true that this may be an offence under the Arms Act also but the basic material for constituting an offence both under the Arms Act and TADA Act is identical i.e. recovery of prohibited arms in a notified area under TADA Act. There are no other offences of rape, murder etc. in this case. Therefore, as far as the present case is concerned, non-compliance of Section 20-A(1) of TADA Act is fatal and the Appellants are to be discharged in so far as the offence under TADA Act is concerned. They can be proceeded against under the provisions of the Arms Act. The order of the Designated TADA Court is set aside. Appeal allowed.

Tags : TADA OFFENCE SANCTION REQUIREMENT