STATE OF RAJASTHANversusMOHINUDDIN JAMAL ALVI & ANR.

                          [2016] 2 S.C.R. 649



                       STATE OF RAJASTHAN                                   A
                                   v.
               MOHINUDDIN JAMAL ALY! & ANR.
               (Criminal Appeal Nos. 2464-2466of2014)
                             MAY04,2016                                     B

              [A.K. SIKRI AND R.K. AGRAWAL, JJ.]
        Terrorist and Disruptive Activities (Prevention) Act, 1987 - ss .
. (3)(2)(ii), 3(3), 6(1) and 20A - Requirement of approval u!s. 20A -
  Whether it is only 'District Superintendent of Police' whose approval
  will meet the requirements u!s. 20A, or it can be given by an officer
                                                                            c
  higher in rank - Held: An authority even' higher in rank tha,n
   'District Superintendent of Police' would not be competent to give
  approval - In the instant case, since the prior approval of 'District
  Superintendent of Police' was not taken, the trial under the
  provisions of TADA Act and Explosive Substances Act got vitiated -        D
  Acci•sed are liable to be acquitted - Explosive Substances Act, 1908
  - s. 4A.
      Allowing the appeal of accused and dismissing that of the
 State, the Court
     -HELD: 1. Even an authority higher in rank would not be                E
 competent to give the approval as required under sub-Section(l)
 of Section 20A of the TADA Act. [Para 4] [651-F]
      2. Since the prior approval of the District Superintendent of
 Police was not taken in. the instant case, the trial got vitiated on
 this ground ·itself. The appeals filed by the convict persons are          F
 allowed setting aside their conviction. The other appeals which
 are preferred by the State are dismissed. (Para 7) (654-D-E]
        Hussein Ghadially @ MH.GA.Shaikh & Ors. vs. State
        of Gujarat (20!4) 8 SCC 425: 2014 (9) SCR 364;.
        Anirudhsinhji Karansinhji Jadeja & Anr. Vs State of.                G
        Gujarat (1995) 5 SCC .302: 1995 (2} ~uppl. SCR 637
      . - relied on.
                        Case Law Reference
     2014 (9) SCR 36             relied on        1>ara4
     1995 (2) Suppl. SCR 6~7 ,,_ relied on        Para_5     --~·
                                                                            Jf -
                                   649
650            SUPREME COURT REPORTS                           [2016] 2 S.C.R.


A         CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos.
      2464-2466of2014.
            From the Judgment and Order dated 24 .04.2012 of the Court of
      Judge, Designated Court for Rajasthan, Ajmer Tada Sessions Case No.
      1, 2, 3of1999.
B                                       WITH
           Crl.A. No. 464-466 of2013 ..
          R. K. Dash, Sr. Adv., S. S. Shamshery, AAG, Ajay Choudhary,
      Mohd. lrshad Hanif, N. A. Usmani, ArifAli Khan, Amit Sharma, Prateek
 c    Yadav, Ms. Anu Dixit Kaushik, Ms. Ruchi Kohli, Ms. Nidhi (SCLSC),
      Amit Sharma, Prateek Yadav, Advs. with them for the appearing parties.
           The Judgment of the Court was delivered by
           A.K. SIKRI, J._l. All these appeals arise out of a common
      judgment dated 24.04.2012 rendered by the Designated Court for
 D    Rajasthan at Ajmer in TADA Special Case Nos. 1, 2 & 3 of 1999.
            2. Four accused persons were arrayed and prosecuted by the
      prosecution under Sections 3(2)(ii), 3(3) and 6(1) of the Terrorist and
      Disruptive Activities (Prevention) Act, l 987(hereinafter referred to as
      "TADA Act" and. Section 4A of the Explosive Substances Act, 1908.
 E    The TADA Court has acquitted two accused, namely, M. Jamal Alvi
      and Habib Ahmed. Against their acquittal, State of Rajasthan has filed
      appeals which are registered as Criminal Appeal Nos. 2464-66of2014.
      Other two accused, namely, Abre Rehmat Ansari @Qari and Dr. Mohd.
      Jalees Ansari, have been convicted by the TADA Court and challenging
      that conviction, these persons have filed Criminal Appeal Nos. 464-466
      of2013. It is for this reason, we have heard all these appeals together
      which are being disposed of by this common judgment.
           3. Mr. R.K. Dash, learned senior counsel, appearing for the
      convicted accused persons submitted at the outset that he would not be
      going into the merits of the case because of the reason that the prosecution
 G    has to fail due to non-compliance of the mandatory requirements of
      Section 20A of the TADA Act. For this reason, we are e$chewing any
      discus~ion on the merits of the case. Section 20A deals with the
      cognizance of offense that has to be taken under TADA A.ct and reads
      as under:-
 H
    STATE OF RAJASTHAN v. MOHINUDDIN JAMAL ALVI                                651
                 & ANR. [A.K. SIKRI, J.]


       "20-A Cognizance of offence.                                             A
      ( l) Notwithstanding anything contained in the Code, no information
      about the commission of an offence under this Act shall be
      recorded by the police without the prior approval of the District
      Superintendl(!it of Police.
      (2) No court shall take cognizance of any offence under this Act          B
      without the previous sanction of the Inspector-General of Police,
      or as the case may be, the Commissioner of Police."
       4. As per the aforesaid Section, no information about the commission
of offense under TADA is to be recorded by the police without the prior
approval of District Superintendent of Police. The specific authority which     c
is named under sub-Section (l) of Section 20A is District Superintendent
of Police. In the present case, it is on record that the approval that was
taken was of Additional Director General of Police Mr. Shyam Partap.
Singh Rathore. The TADA Court has treated the said approval as valid
because of the reason that approval is given by an authority which is
higherthan the District Superintendent of Police. The question, therefore,      D
is as to whether it is only District Superintendent of Police whose approval
will meetthe requirements oflaw or it can be given by an Officer higher
in rank. This question is no more res integra and is settled by a series of
judgments of this Court. It is not necessary to give account of all those
judgments as in the latest judgment rendered by this Court in Hussein           E
Ghadially@ MHGA.Shaikh & Ors. vs. State of Gujarat (20141 8
sec    425. all the previous precedents are taken note of and on that basis,
this Court has reiterated the position in law that even an authority higher
 in rank would not be competent to give the approval as requirecj under
 sub-Section(! )of Section 21 A of the TADA Act. The same has been
 interpreted in the said judgment in the following manner:                       F
       "21. A careful reading of the above leaves no manner of doubt
       that the provision starts with a non obstante clause and is couched
       in negative phraseology. It forbids recording of information about
       the commission of offences under TADA by the Police without
       the prior approval of the District Superintendent of Police. The         G
       question is whether the power of approval vested in the District
       Superintendent of Police could be exercised by either the
       Government or the Additional Police Commissioner, Surat in the
       instant case. Our answer to that question is in the negative. The
       reasons are not far to seek:
                                                                                H
652      SUPREME COURT REPORTS                            [2016] 2 S.C.R.


A     21.I We say so firstly because the statute vests the grant approval
      in an authority specifically designated for the purpose. That being
      so, no one except the authority so designated, can exercise that
      power. Permitting exercise of the power by any other authority
      whether superior or inferior to the authority designated by the
      Statute will have the effect of re-writing the provision and
 B
      defeating the legislative purpose behind the same - a course that
      is legally impermissible. In Joint Action Committee of Air Line
      Pilots' Association of!ndia v. Director General of Civil Aviation
      (2011) 5 SCC 435, this Court declared that even senior officials
      cannot provide any guidelines or direction to the authority under
 c    the statute to act in a particular manner.
      21.2. Secondly, because exercise of the power vested in the District
      Superintendent of Police under Section 20-A (I) would involve
      application of mind by the officer concerned to the material placed
      before him on the basis whereof, alone a' decision whether or not
 D    information regarding commission of an offence under TADA
      should be recorded can be taken. Exercise of the power granting
      or refusing approval under Section 20-A (I) in its very nature
      casts a duty upon the officer concerned to evaluate the information
      and determine having regard to all attendant circumstances whether
      or not a case for invoking the provisions of TADA is made out.
 E    Exercise of that power by anyone other than the designated
      authority viz. the District Superintendent of Police would amount
      to such other authority clutching at the jurisdiction of the designated
      officer, no matter such officer or authority purporting to exercise
      that power is superior in rank and position to the officer authorised
 F    by law to take the decision.
      21.3. Thirdly, because if the Statute provides for a thing to be
      done in a particular manner, then it must be done in t~at manner
      alone. All other modes or methods of doing that thing must be
      deemed to have been prohibited. That proposition oflaw first was
 G    stated in Taylor v. Taylor(l 875)LR 1 ChD 426 and adopted later
      by the Judicial Committee in Nazir Ahmed v. King Emperor AIR
      1936 PC 253 and by this Court in a series ofjudgments including
      those in Rao Shiv Bahadur Singh & Anr. v. State of V:indhya
      Pradesh AIR 1954 SC 322, State of Uttar Pradesh v. Singhara
      Singh AIR 1964 SC 358, Chandra KishoreJha v. Mahavir Prasad
 H    1999 (8) SCC 266, Dhananjaya Reddy v. State ofKarnataka 2001
         STATE OF RAJASTHAN v. MOHINUDDIN JAMAL ALY!                                653
                      & ANR. [A.K. SIKRI, J.]

            (4) SCC 9 and Gujarat Urja Vikas Nigam Ltd. v. Essar Power               A
            Ltd. 2008 (4) SCC 755. The principle stated in the above decisions
            applies to the cases at hand not because there is any specific
            procedure that is prescribed by the Statute for grant of approval
            but because if the approval could be granted by anyone in the
            police hierarchy the provision specifying the authority for grant of
                                                                                     B
            such approval might as well not have been enacted."
          5. In arriving at the aforesaid conclusion, the Court also referred to
     and relied upon the three Judge Bench decision of this Court in
     Anirudhsinhji Karansinhji Jadeja & Anr. Vs State o( Gujarat (I 995)
     5 sec 302, in which the position in law was stated in the following
     manner:
                                                                                     c
            "11. The. case against the appellants originally was registered on
            19-3-1995 under the Arms Act. The DSP did not give any prior
            approval on his own to record any information about the
            commission ofan offence under TADA. On the contrary, he made
            a report to the Additional Chief Secretary and asked for permission      D
            to proceed under TADA. Why? Was it because he was reluctant
            to exercise jurisdiction vested in him by the provision of Section
            20-A(l)? 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 according to its own     E
            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
            20-A(l) was not exercised by the DSP at all."
                                                                                     F
            6. foearned counse.l appearing for the State of Rajasthan tried to
     _argue that the Division Bench in the aforesaid judgment in Hussein
      Ghadially @MH GA.Shaikh & Ors. (Supra) did not interpret the
      decision rendered in Anirudhsinhii Karansinhji Jadeja & Anr. (Supra)
      correctly. As according to him, in Anirudhsinhji Karansinhji Jadeja
      & Anr. (Supra), this Court had given one more reason for quashing the          G
      TADA proceedings which is contained in para 15 of the said judgment,
      as in the said para, the Court noted that the State Government had given
      sanction without even di.<cussing the matter with the Investigating Officer
      and without assessing the situation independently which showed lack of
      proper and due application of mind of the State Government by giving
                                                                                     H




,-
654             SUPREME COURT REPORTS                            [2016] 2 S.C.R.


A     sanction/consent. His submission predicated on para 15 of the said
      judgment that the prosecution would be treated as bad in law only if
      there was a default on the part of the prosecutor on both the aspects,
      namely, only when violation of sub-Section( 1) of Section 20A as well as
      grant of prior approval by the District Superintendent of Police is not
      there and also when the State Government while giving sanction/consent
B
      has not applied its mind independently. We do not agree with the
      contention of the learned counsel for the State. From the reading of the
      judgment in Anirudhsinhji Karansinhji Jadeja & Anr. (Supra), it
      becomes clear that this Court had given the aforesaid two reasons while
      holding that the trial against the accused persons in th'e said case under
 c    TADA was vitiated. However, that does not mean that both the reasons
      have to be satisfied. Even both are independent of each other and even
      if one violation is found that would be sufficient to upset the trial. That is
      what this Court did in Hussein Ghadia//y @ MH.GA.Shaikh & Ors.
      (Supra).
D           7. From the aforesaid it becomes clear that since the prior approval
      of the District Superiniendent of Police was not taken in the instant
      case, the trial got vitiated on this ground itself. The appeals filed by the
      convict persons being Criminal Appeal Nos. 464-466of2013 are allowed
      setting aside their conviction. The other appeals which are preferred by
      the State being Criminal Appeal Nos. 2464-2466 of2014 are dismissed.
 E
           The two convicts, namely, Abre Rehmat Ansari @ Qari and Dr.
      Mohd. JaleesAnsari shall be released forthwith, if they are not required
      in any other case.
      Kalpana K. Tripathy                                       Appeals disposed of.