Holding

A conviction under Section 3(1) of TADA is not sustainable absent proof of the requisite terror‑intention, whereas the conviction under IPC Section 324 is upheld.

Summary

The appellant, Mohammed Saleem, was tried for assault with a knife that caused injuries to the complainant, and was charged under IPC Section 324, TADA Section 3(1), and the Bombay Police Act Section 135(1). The trial court acquitted him of the Bombay Police Act charge, but convicted him under IPC 324 and TADA 3(1). On appeal, the Supreme Court upheld the conviction under IPC 324, finding sufficient evidence of a knife injury, but set aside the TADA conviction, holding that there was no evidence the assault was committed with the specific intent to create terror or communal disharmony as required by Section 3(1) of TADA. Consequently, the appeal was partly allowed: the TADA conviction was vacated while the IPC conviction remained.

Issues considered

Whether the facts established a conviction under Section 3(1) of the Terrorist and Disruptive Activities (Prevention) Act, 1987.
Whether the injuries inflicted constitute an offence under Section 324 of the Indian Penal Code.
Whether the trial court correctly acquitted the appellant under Section 135(1) of the Bombay Police Act.

Legislation cited

Bombay Police Acts. 135(1)
Indian Penal Code, 1860s. 324
Terrorist and Disruptive Activities (Prevention) Act, 1987s. 3(1)

Subjects

TADASection 3(1)IPC 324terrorist actintent to cause terrorcommunal disharmonyknife assaultconvictionappeal

Judgment

MOHMED SALEEM A LIAS CHUHO MOHMED SHAKOOR A
v.
STATE OF GUJARAT

JULY 19, 1994

[DR. A.S. ANAND AND FAIZAN UDDIN, JJ.] B

Terrorist and Disrnptive Activities (Prevention) Act, 1987-Section
3(1)-Ambit and Scope of-No evidence that injury caused to complainant
with intention contemplated by Section 3(1}-Conviction u/s 3(1) not sus-
tainable. c
Indian Penal Code, 1860--Section 324-injuries on abdomen and back
caused by a sharp knife-Conviction u/s 324 sustainable.

The appellant was put up for trial for offences under·Section 324
IPC. Section 3(1) of TADA and Section 135(1) of the Bomahy Police Act. D
The Trial Court found that the charge for the offence u/s 135(1) of the
Bombay Police Act was not made out and consequently the appellant was
acquitted of the said charge.

In this appeal under section 19 of the Terrorist and Disruptive
Activities (Prevention) Act, 1987, the Complainant alleged that while he E
was returning after visiting his brother, be found some unknown person
coming towards him. On reaching the complainant, that person took out
a knife and gave him a blow on bis abdomen. While being dragged towards
the Chawl, he was given one more blow on bis neck. The assailant was also
inflicted a knife blow on bis back. The complainant however managed to F
escape.

Disposing of the matter, this Court

HELD : 1.1. The complainant sustained an Injury on his abdomen
apart from an injury on his back. The injuries had been caused by him by G
a sharp knife and the designated court was right in coming to the con·
cluslon that an offence under section 324 IPC had been made out against
the appellant. The appreciation of the evidence in so far as the offence u/s
324 !PC was concerned, is proper. (804-C, D]

1.2. The designated court convicted the appellant for an offence H
_... 801
802 SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.

A under Section 3(1) of TADA. The court fell in error in finding that the
offence u/s 3(1) had been made out against the appellant. In the estab·
lished facts and circumstances of the case recourse to Section 3(1) of
TADA disclosed a clear misuse of the provisions of that Act. There was no
an iota of evidence that the injury was caused to the complainant with the
intention contemplated by Section 3(1) to achieve the objective envisaged
B
by the said section. The complainant had not stated that at any point of
time, any of the assailants belaboured him only because they believed him
to be a "non-Muslim" or had attacked him for that reason. That apart, the
complainant on his own admission "managed to escape from the clutches
of the assailants". In the absence of any evidence from which even an
C inference could be drawn that the assault was made on the victim with the
requisite intention as envisaged by Section 3(1) of TADA to achieve the
objective as envisaged by that section, the conviction of the appellant for
an offence under section 3(1) TADA is not at all sustainable.
(804-E, F, 805-A, C, 806-A)
D Hitendra Vishnu Thakur & Ors. Etc. Etc. v. State of Maharashtra &
Ors., (1994) suppl. 1 SCR, relied on.

CRIMINAL APPELLATE JURISDICTION Crl. Appeal No.
197/94.

E From the Judgment aod 0,der dated the 31st December 1993 of the
Additional designated
. Court at Ahmedabad in Terrorist Criminal case .,No.
... ,....
6 of 1993.

W.A Nomani & lrshad Ahmed for the Appellant.

F R.P. Bhatti, Anip Sachthey and S.K. Sabharwal for the Respondents.

The following Order of the Court was delivered by :

This is an appeal under Section 19 of the Terrorist and Disruptive
Activities (Prevention) Act, 1987 (hereinafter TADA).
G The prosecution story, as emerging from the record is that a com-
plaint was lodged by one Jugal Kishore Puran Lal Gupta complainant, with
Gomtipur Police Station on 10th July, 1992 alleging that when he was ,J
returning after visiting his brother's Video Cassette Library Located near
Vivekanada Mills on a bicycle, near Arbuda Mills, he found one unknown
H person coming towards him. On reaching near the complainant, that
MOHD. SALEEM v. STATE OF GUJARAT 803

person took out a knife and gave him a blow on his abdomen. Two or three. A
more persons came out from a nearby Chaw! and asked the assailant to
drag the complainant into the Chaw!. While being dragged towards the
Chaw!, he was given one more blow on the left side of this neck. The
assailant was also inflicted a knife blow on his back. The complainant,
however, managed to free himself and started running towards the four B
cross-roads. He found one police jeep on patrol duty and the police took
• him to the hospital. A complaint was thereafter lodged and investigation
taken in hand. The co-accused of the appellant was released on bail during
the investigation but at the time of the framing of the charge-sheet, the
co-accused did not turn up and even the sureties could not be located. On
the request of the Public Prosecutor, the case of the appellant was C
separated and on 30th July, 1993, the appellant was put up for trial for
offences under Section 324 !PC, Section 3(1) of TADA and Section 135(1)
of the Bombay Police Act. The Trial Court after recording the evidence
led by the prosecution and exhibiting the injury certificate received from
the hospital, Ex.P·ll formulated the following three points for considera- D
lion:

"(1) Does the prosecution proNe that on 10th July, 1992 at about
9/30 p.m. near Arbuda Mills situated within Gomtipur Police
Station limits the present accused along with the absconding ac-
cused Saleem Ibrahim Shaikh Voluntarily caused hurt on the E
complainant Jugalkishore Puranlal Gupta by means of any instru-
ment for stabbing or cutting, or any instrument, which if used as
a weapon of offence, is likely to cause death and has, thus,
rendered himself liable for the offence punishable under Section
324 of J.P. Code?
F
(2) Does the prosecution prove that on the aforesaid date, time
and place the present accused by carrying with him any weapon
in violation of any prohibitory order committed the offence punish-
able under Section 135(1) of the Bombay Police Act?
G
(3) Does the prosecution prove that on the aforesaid, time and
place the present accused with intent to strike terror in the people
or any section of the people or to alienate any section of the people
or to adversely effect the harmony amongst different sections of
the people did any act or thing by using lethal weapon like knife H
804 SUPREME COURT REPORTS [1994] SUPP. l S.C.R. ~ .

A or razor in such a manner as to cause, or as is likely to cause death
of, or injuries to, any person or persons and has committed a
terrorist act as defined in Sec. 3(1) of the TADA (Prevention) Act
punishable under Section 3(2) of the said Act?

The Trial Court found that the charge against the appellant for the
B offence under Section 135(1) of the Bombay Police Act was not made out
and consequently the appellant "·· • acquitted of the said charge.

The injuries which were disclosed in the injury certificate (Ex. P-11),
upon admission by the defence, indicated that the complainant sustained
c an injury of 10 cm x 0.75 cm x 0. 75 cm on his abdomen apart from an injury
on his back of the size 3 cm 0.25 cm. x 0.25 cm. The injuries received by
the complainant undoubtedly show that those had been caused to him by
a sharp knife and the designated court, in our opinion, was right in coming
'o the conclusion that an offence under Section 324 !PC bad been made
out against the appellant. Lean;cd counsel for the appellant was unable to
D point out any infirmity in the finding of the Trial Court. The appreciation
of the evidence in so far as the '" (ence under Section 324 !PC is concerned,
is proper and we agree with the conclusion arrived at by the designated
court with regard to the offence of the appellant punishable under Section
324 !PC.
E
The designated court con"icted the appellant for an offence under
Section 3(1) of TADA also and sentenced him to 8 years rigorous im·
prisonment and a fine of Rs. PlO and in default ther•,0f 3 months rigorous
imprisonment. In our oninion the designated court fell in error in finding
that the offence under Section 3(1) of TADA had been made out against
F the appellant. In the established facts and circumstances of the case
recourse to section 3(1) of TADA discloses a clear misuse of the provisions
of that Act. There is not an iota of evidence that the injury was caused to
the complainant with the intention contemplated by Section 3(1) to achieve
the objective envisaged by the said Section. The complainant, at the trial,
G as a definite improvement over his statement in the F.1.R., while narrating
the manner of assault added that after he said to the assailants that be was
a "Muslim", he was let off. Apart from the fact that such an improved
version does not inspire confidence because there was no occasion for the
,, '
Complainant' to say so, it appears to us that the prosecution introduced this
H statement with a view to show that the objective of the assailants was to
I· MOHD. SALEEMv. STATE OF GUJARAT 805

create communal disharmony so as to invoke the provisions of Section 3(1) A
of TADA. The complainant has not stated anywhere in his statement, that
at any point of time, any of the assailants belaboured him only because they
believed him to be a "non-Muslim" or had attacked him for that reason.
That apart, the complainant on his own admission "managed to escape
from the clutches of the assailants and ran towards the four-cross roads". B
This would not have been his conduct, if the assailants on coming to know
that he is a 'Muslim' had let him off! Jn the absence of any evidence from
which even an inference could be drawn that the assault was made with
the requisite intention as envisaged by Section 3(1) of TADA, this attempt
on the part of the complainant to give a communal colour to the occurrence C
was futile and the designated court not have convicted the appellant for an
offence under Section 3(1) of TADA. While dealing with the ambit and
scope of Section 3(1) of TADA in Criminal Appeal Nos. 732-735 of 1993
etc. etc. Hitendrc Vishnu Thakur & Ors. etc. etc. v. State of Maharashtra & .
Ors. This Court opined : D
"Thus the true ambit and scope of Section 3(1) is that no conviction
under Section 3(1) of TADA can be recorded unless the evidence
led by the prosecution establishes that the offence was committed
with the intention as envisaged by Section 3(1) by means of the
weapon etc. as enumerated in the Section and was committed with E
the motive as postulated by the said Section. Even at the cost of
repetition, we may say that where it is only the consequence of the
criminal act of an accused that terror fear or panic is caused, but
the crime was not committed with the intention as envisaged by
Section 3(1) to achieve the objective as envisaged by the section, F
an accused should not be convicted for an offence under Section
3(1) of TADA. To bring home a charge under Section 3(1) of the
Act the terror or panic etc. must be actually intended with a view
to achieve the result as envisaged by the said section and not be
merely an incidental fall out or a consequence of the criminal
activity. Every crime, being a revolt flgainst the society, involves ·G
some violent activity which results in some degree of panic or
create some fear or terror in the people or a section thereof. But
unless the panic, fear or terror was intended and was sought to
achieve either of the objectives as envisaged in Section 3(1) the
offence would not fall Stricto-senso under TADA." H
806 SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.

A In view of the law laid down as above, we find 'that the conviction of
the appellant for the offence under Section 3(1) TADA is not at all
sustainable. The conviction and sentence of the appellant for the offence
under Section 3(1) TADA is consequently set aside. ·

As a result of the above discussion, this appeal succeeds in part. The
B conviction and sentence of the appellant for an offence under Section 3(1)
TADA is set aside but his conviction and sentence for the offence under
Section 324 !PC is upheld.

With the aforesaid modification, this appeal is partly allowed.

A.G. Appeal allowed.