STTE OF WEST BENGAL AND ANR. versus MOHAMMAD KHALID AND ORS. ETC. ETC.

Citation: [1994] SUPP. 6 S.C.R. 16 · Decided: 24-11-1994 · Supreme Court of India · Bench: S. MOHAN · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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ST A TE OF WEST BENGAL AND ANR. 
v. 
MOHAMMAD KHALID AND ORS. ETC. ETC. 
NOVEMBER 24, 1994 
[S. MOHAN AND M.K. MUKHERJEE, JJ.] 
Constitution of India-Art. 226-Terrorist and Disruptive Activities 
(Prevention) Act, 1987-Section 20 A(2) -Sanction to prosecute-Validity 
challenged-Limitations of power of High Court-High Court in writ 
jurisdiction can interfere only in extreme r;ases-Debatable area-It is not 
amenable to writ jurisdiction-Procedure prescribed under TADA must be 
followed including challenging order of Designated Court u/s 19-High 
Court not to perform laboured exercise of scrutinising materials-When 
order of sanction, on face of it, shows that sanctioning authority perused 
police papers-High Court had to necessarily accept these averments on 
their face value. 
Constitution of India-Art. 226-Criminal Procedure Code, 1973-
Section 190-Terrorist and Disruptive Activities (Prevention) Act, 1987-
0rder taking cognizance-Not a reasoned order-Whether order liable to 
be quashed-Held, No-Whether court taking cognizance can only look at 
police report-Held, No. 
Terrorist and Disruptive Activities (Prevention) Act, 1987--Sectfons 3 
& 4-Preparation and possession of bombs for self defenc~-Whether 
amount to an offence under TADA-Held, Yes. 
These criminal appeals are directed against the judgment and 
order of the High Court. quashing the orders of sanction and taking 
cognizance of the offences-Writ Petitions were filed in the High Court 
challenging the validity of sanction and taking cognizance of the cases 
against each of the respondents by the Designated Court under the 
Terrorist and Disruptive Activities (Prevention) Act, 1987. 
In March, 1993, an explosion occurred in Calcutta in which 69 
persons died. Accused were prosecuted on obtaining sanction to 
prosecute u/ss. 3 and 5 of the Explosive Substances Act from the State 
Government. Sanction u/s 20A(2) of TADA from the Police 
Commissioner was also obtained. During investigation it appeared that 
for the last S or 6 years accused had been manufacturing bombs. The 
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STATE v. MOHAMMAD KHALID 
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sanctioning authority mentioned that the intention of the accused was 
to strike terror on people and that the accused had con~pired and 
prepared to commit disruptive activities. 
A writ petition under Article 226 of the Constitution was filed by 
the accused challenging legality of the order taking cognizance and also 
validity of the sanction obtained. 
The High Court by its impugned judgment held that TADA has 
been wrongly applied in the case and the order of sanction and further 
taking cognizance by the Designated Court was not proper, legal and 
valid and the same was quashed. 
The State of West Bengal has filed these criminal appeals, alleging 
that the High Court gravely erred in quashing the order taking 
cognizance, by entering the area which is beyond the scope of 
jurisdiction under Article 226 of the Constitution of India; that the 
High Court cannot examine the merits of the allegations; that in fact, 
what has been done by the High Court was a laboured exercise of 
scrutinising the material placed before the Designated Court, which is 
not permissible, and that it has conducted a virtual pre-trial at a pre-
mature stage. 
It is submitted that under Article 226 the High Court is not entitled 
to go into the validity or otherwise of the order granting sanction for 
prosecution. The order of prosecution is required to be proved by 
evidence in the course of trial. The order of sanction, on the face of it, 
shows that the sanctioning authority had gone through all the reports, 
the statement of the witnesses, confessions etc. The High Court has to 
accept these averments on their face value. 
The High Court has held in the impugned judgment that from the 
act of preparation and storage of bombs intention to commit offences 
under TADA cannot be inferred as the motive was to defend the 
Muslims. It is submitted by the appellants that this finding is shocking 
and contrary to the well established principles of self-defence. Then 
again, the preparation and keeping of bombs are illegal. This would be 
a terrorist Act u/s 3 (1). 
The appellants further contended that the finding of the High 
Court that there are no materials in support of allegation of conspiracy 
u/s 3 (3) proceeds on misappreciation of the material and is contrary to 
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the averments contained in the charge-

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