LexANIRUDHSINHJI KARANSINHJI JADEJA AND ANR. versus THE STATE OF GUJARAT
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ANIRUDHSINHJI KARANSINHJI JADEJA AND ANR. A v. THE STATE OF GUJARAT AUGUST 11, 1995 [AM. AHMADI, CJ., B.L. HANSARIA AND S.C. SEN, JJ.] Terrorists and Disrnptive Activities (Prevention) Act, 1987: S.20A(l)-Commission of an offence under TADA-Approval of Dis- tlict Supe1intendent of Police-Condition precedent-Discretion vested in him not exercised-State Govt. granting permission-Non-application of mind-Proceedings under TADA quashed-Bail granted on certain condi- tions. B c One J was murdered by four persons. Thereafter they went to the D Sarpanch (appellant no. 1) and sought refuge. He declined to provide shelter but agreed to keep the weapons. One of the murderers and appel- lant no. 2 packed one country-made gun with cartridge and two knives in a bundle and concealed the bundle by digging a pit on the ground of a small room in the field belonging to appellant no. 1. Thereafter the murderers left the field. Police arrested and started criminal proceedings E not only against the murderers, but also against the appellants. All of them were sent to judicial custody. The appellants had made an application for bail, which was rejected by the Designated court. Allowing the appeal, this Court F HELD : 1.1. The jurisdiction under Section 20A(l) of the Terrorists a~d Disruptive Activities (Prevention) Act, 1987 (TADA) to grant approval for recording of any information about the commission of an offence under TADA, has been vested in the District Superintendent of Police (DSP). In G the instant case, a specific point has been taken in the Special Leave Petition that prior approval, as required by section 20A(l) of TADA, was not taken. This section was introduced to safeguard the citizens from vexatious prosecution under TADA. The Designated Court had failed to appreciate that the DSP had not given prior approval and the case of the appellants under TADA was, therefore, nonest. [642-C-E) H 637 A B 638 SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R. 1.2. The Deputy Director-General of Police and the Additional Direc- tor-General of Police also sent FAX Messages to the Chief Secretary on 18th March, 1995, requesting him to grant the prayer of the DSP and permit him to proceed under TADA. On 18th March, 1995, the Additional Chief Secretary, Home Department, gave sanction/consent . to apply the provisions of TADA; and the District Superintendent of Police was in- formed accordingly. There is nothing in the Act to suggest that the Addi- tional Chief Secretary has to grant permission to District Police Superintendent for proceeding under TADA. This is a case of power conferred upon one authority being really exercised by another. If a statutory authority has been vested with jurisdiction, he has to exercise it C according fo its own discretion. If the discretion is exercised under the direction or in compliance with some_ higher authority's instruction, then it will be a case of failure to exercise discretion altogether. In other words, the discretion vested in the DSP in this case by Section 20A(1) was not exercised by the DSP at all. It is a clear case of exercise of power on the D basis of external dictation. That the dictation came on the prayer of the DSP will not make any difference to the principle. The DSP did not exercise the jurisdiction to the recording of information under TADA in exercise of his discretion. [645-C-D; F-G;,646-F-G] E F 13. Even if it be accepted that as an additional safeguard against arbitrary exercise of the dra~tic provisions, the State Government had provided by administrativ,e instructions an additional safeguard whereunder the DSP was required to obtain the sanction/consent of the State Government, in the present case the same was given by the State Government without proper, application of mind. The sanction/consent was I given by the Government ~erely on the basis of the FAX message dated 17 3.1995 on the DSP, though there is on record a FAX message of Deputy Director.General of Police also, which is dated 183.1995. [646-H; 647-A-B] - · i.4. Before agreeing to use of harsh provisions of TADA against ihe appellants, the Government ~ught to have taken some steps to satisfy itself G whether what has been stated by the DSP was borne out by the records, which apparently had not been called for in the present case, as the sanction/consent was given post haste on 18.3.1995, i.e. the :very next day . of the message of the DSP. It seems
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