judgement:
: Criminal Appeal Nos. 703, 7 12 of 1989 and 13 of 1990.
From the Judgment and Order dated 27.10.1989 of the Designated Court/Judge at Jalgaon in Crl.
Appln.
No. 524 of 1989 in T.A.D.A. Case No. 9 of 1989 dated 2.9.1989 in Crl.
Appln.
No. 357 of 1989.
WITH Special Leave Petition (Crl.) No. 2459 of 1989.
From the Judgment and Order dated 15.11.1989 of the Bombay High Court in Crl.
Appln.
No. 687 of 1989.
Appellant in person in Crl.
A. No. 703 of 1990.
B.A. Masodkar, U.R. Lalit and G.B. Sathe for the Appel lant Petitioners.
V.N. Patii and A.S. Bhasme for the Respondents.
S.K. Pasi for the Intervenor.
The Judgment of the Court was delivered by AHMADI, J.
These three appeals arise out of the charge levelled by the police against the five petitioners of the above special leave 637 petition under Section 3 of the Terrorists and Disruptive Activities (Prevention) Act, 1987, (hereinafter called 'the Act '), Sections 302, 307 read with Sections 147, 148 and 149 IPC and Section 37 of the Bombay Police Act, 1951, for the murder of one Raju alias Avtar Singh, son of the appellant of Criminal Appeal No. 703/89, and for injuries caused to his companion Keshav Vitthal, the first informant.
The facts giving rise to these proceedings are as under: On the afternoon of the 12th July, 1989 when Raju and his companion Keshav were proceeding on a motor cycle at about 3.00 p.m. they were intercepted by the accused Jiten dra and one another known as a wrestler.
Following some altercation and heated exchange of words between them, the other three accused persons arrived at the spot.
Two of them were armed with knives and the third possessed an iron rod.
On seeing them Keshav who was on the pillion seat took to his heels whereupon Raju who was in the driver 's seat aban doned the motor cycle and ran in another direction.
Two of the accused persons ran after Raju while the others includ ing the wrestler chased Keshav.
On being over taken accused Vijay gave a knife blow on the chest of Keshav and his companion Santosh dealt blows with the iron rod.
Thereafter all the three fled from the scene of occurrence.
The Other two who had chased Raju are alleged to have killed him as he was found lying in an unconscious condition on the road.
Both the injured were removed to the hospital.
Raju suc cumbed to the injuries soon after reaching the hospital.
Keshav, however, responded to medical treatment and has survived to give evidence.
On the same day at about 5.30 p.m. the first information report was lodged by the injured Keshav.
On the basis there of an entry was made in CR No. 138 of 1989 and a case under Section 302 and 307 read with Sections 147, 148 and 149 IPC and Section 37 of the Bombay Police Act was registered.
The accused were arrested on 15th July, 1989 and were taken on remand for 9 days which period was extended upto 29th July, 1989 on which data the Investigating Officer invoked Section 3 of the Act.
On 3rd August, 1989 the accused moved an application in the Designated Court, Jalgaon, for bail, inter alia, contending that the provisions of the Act had been wrongly and maliciously invoked.
The said application was heard and decided by the Designated Court on 2nd Septem ber, 1989 which took the view that Section 3 of the Act was wrongly applied.
Against that order the State of Maharashtra has preferred Criminal Appeal No. 712/89.
As the accused were directed to approach the regular court, they moved two bail applications before the Fourth Additional Sessions Judge, Ahmad 638 nagar.
The said bail applications were, however, rejected on 25th September, 1989.
Against the said rejection the accused approached the High Court.
While those matters were pending in the High Court, the prosecution submitted a charge sheet against the accused in the Designated Court at Jalgaon.
Thereupon the High Court rejected the applications.
The accused again approached the Designated Court for bail.
The Designated Court once again came to the conclusion that, in the facts and circumstances of the case, Section 3 of the Act had no application and discharged the accused on that count under Section 227 of the Code of Criminal Procedure, 1973 (hereinafter called 'the Code ').
By the said impugned order of 27th October, 1989 the case was ordered to be transferred to the Court of Sessions, Ahmadnagar, on the other charges and the accused were granted liberty to move that court for bail.
Against the said order Criminal Appeal No. 703/89 has been preferred by Raju 's father while the State of Maharashtra has filed Criminal Appeal No. 13/90.
Thereupon, the accused approached the High Court for bail but the High Court rejected their application and directed early hearing of the case.
Special leave petition No. 2459/ 89 is preferred by the original accused against the said order.
The Act was enacted to make special provisions for the prevention of, and for coping with, terrorist and disruptive activities and for matters connected therewith or incidental thereto.
Section 2(d) defines the expression 'disruptive activity ' to have the meaning assigned to it in section 4.
Section 2(h) defines the expression 'terrorist act ' to have the meaning assigned to it under section 3(1) of the Act.
The relevant part of Section 3(1) provides that whoever, with intent (i) to overawe the Government as by law estab lished or (ii) to strike terror in the people or any section of the people or (iii) to alienate any section of the people or (iv) to adversely affect the harmony amongst different sections of the people, does any act or thing by using any of the lethal weapons mentioned therein in such a manner as to cause death of/or injuries to any person or persons, commits a terrorist act.
Section 3(2) lays down the penalty for the commission of such an act.
Section 4(1) prescribes the penalty for indulging in any disruptive activity.
Sec tion 4(2) defines a disruptive activity to mean any action taken in whatever manner (i) which questions, disrupts or is intended to disrupt, whether directly or indirectly, the sovereignty and territorial integrity of India, or (ii) which is intended to bring about or supports any claim, whether directly or indirectly, for the cession of any part of India or the secession of any part of India from the Union.
Section 6 provides enhanced penalty for aiding any terrorist or disruptionist.
Part III of the Act creates the machinery for trying 639 terrorists and disruptionists charged with the commission of any offence under the Act.
Section 9 empowers the Central Government as well as the State Governments to constitute by notification one or more Designated Courts for such area or areas, or for such case or class or group of cases as may be specified in the notification.
Section 9(6) provides that a person shall not be qualified for appointment as a Judge or an Additional Judge of a Designated Court unless he is immediately before such appointment a Sessions Judge or an Additional Sessions Judge in any State.
Section 11 says that every offence punishable under the provisions of the Act or the rules made thereunder shall be tried by a Designated Court constituted under Section 9(1) of the Act.
Section 12(1) is relevant for our purpose and reads as under: "When trying any offence, a Designated Court may also try any other offence with which the accused may, under the Code, be charged at the same trial if the offence is con nected with such other offence.
" Section 14 sets out the procedure and powers of Designated Courts.
Sub section 3 of the Section 14 is relevant for our purpose.
It reads as under: "Subject to other provisions of this Act.
Designated Court shall for the purpose of any offence have all the powers of a Court of Sessions and shall try such offences as if it were a Court of Sessions so far as may be in accordance with the procedure prescribed in the Code for the trial before a Court of Sessions.
" Section 16 offers protection to witnesses.
Section 17 gives procedence to trials by Designated Courts.
Section 18 empow ers the Designated Courts to transfer cases to regular Courts.
This Section reads as under: "Where, after taking cognizance of any offence, a Designated Court is of opinion that the offence is not triable by it, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for the trial of such of fence to any court having jurisdiction under the Code and the court to which the case is transferred may proceed with the trial of the offence as if it had taken cognizance of the offence.
" Section 19 provides for an appeal to the Supreme Court both on facts 640 and on law from any judgment, sentence or order, other than an interlocutory order, of a Designated Court.
Section 20(1) makes an offence under the Act or the rules, a cognizable one.
Sub section (8) of section 20 lays down that notwith standing anything contained in the Code, no person accused of an offence punishable under the Act or any rule made thereunder shall, if in custody, be released on bail or on his own bond unless the public prosecutor has been given an opportunity to oppose his release and where he opposes his release, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
Section 21 mandates the Designated Court to presume, unless the contrary is proved, that the accused has commit ted an offence under Section 3(1) if one of the four things set out in clauses (a) to (d), is proved.
Section 22 permits identification of the offender on the basis of his photo graph.
Section 28 empowers the Central Government to make rules on any of the matters set out in clauses (a) to (f) of sub section (2) thereof.
Such rules have to be laid before both the Houses of Parliament.
This in brief is the scheme of the Act.
Under Section 14(3) of the Act a Designated Court is conferred with the powers of a Court of Sessions and is required to try any offence under the Act 'as if it were ' a Court of Sessions.
The procedure which it must follow at the trial is the one prescribed in the Code fox the trial of cases before a Court of Sessions.
This is of course subject to the other provisions of the Act which means that if there is any provision in the Act which is not consistent with the procedure stipulated in the Code for such trials, it is the procedure in the Act that shall prevail.
The procedure for trial before a Court of Sessions is set Chapter XVIII of the Code.
Section 225 places the public prosecutor in charge of the conduct of the prosecution.
Section 226 requires him to open the prosecu tion case by describing the charge against the accused and stating by what evidence he proposes to bring home the guilt against the accused.
Once that is done the Judge has to consider whether or not to frame a charge.
Section 227 of the Code reads as under: "If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the sub . missions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.
" 641 Under this section a duty is cast on the judge to apply his mind to the material on record and if on examination of the record he does not find sufficient ground for proceeding against the accused, he must discharge him.
On the other hand if after such consideration and hearing he is satisfied that a prima facie case is made out against the accused, he must proceed to frame a charge as required by Section 228 of the Code.
Once the charge is framed the trial must ordinari ly end in the conviction or acquittal of the accused.
This is in brief the scheme of Sections 225 to 235 of the Code.
Section 227, introduced for the first time in the New Code, confers a special power on the Judge to discharge an accused at the threshold if 'upon consideration ' of the record and documents he considers 'that there is not suffi cient ground ' for proceeding against the accused.
In other words his consideration of the record and document at that stage is for the limited purpose of ascertaining whether or not there exists sufficient grounds for proceeding with the trial against the accused.
If he comes to the conclusion that there is sufficient ground to proceed, he will frame a charge under section 228, if not he will discharge the accused.
It must be remembered that this section was intro duced in the Code to avoid waste of public time over cases which did not disclose a prima facie case and to save the accused from avoidable harassment and expenditure.
The next question is what is the scope and ambit of the 'consideration ' by the trial court at that stage.
Can he marshal the evidence found on the record of the case and in the documents placed before him as he would do on the con clusion of the evidence adduced by the prosecution after the charge is framed? It is obvious that since he is at the stage of deciding whether or not there exists sufficient grounds for framing the charge, his enquiry must necessarily be limited to deciding if the facts emerging from the record and documents constitute the offence with which the accused is charged.
At that stage he may sift the evidence for that limited purpose but he is not required to marshal the evi dence with a view to separating the grain from the chaff.
All that he is called upon to consider is whether there is sufficient ground to frame the charge and for this limited purpose he must weigh the material on record as well as the documents relied on by the prosecution.
In the State of Bihar vs Ramesh Singh, ; this Court observed that at the initial stage of the framing of a charge if there is a strong suspicion evidence which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for 642 proceeding against the accused.
If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial.
In Union of India vs Prafulla Kumar Samal & Anr., ; , this Court after considering the scope of section 227 observed that the words 'no sufficient ground for proceeding against the accused ' clearly show that the Judge is not merely a post office to frame charge at the behest of the prosecution but he has to exercise his judi cial mind to the facts of the case in order to determine that a case for trial has been made out by the prosecution.
In assessing this fact it is not necessary for the court to enter into the pros and cons of the matter or into weighing and balancing of evidence and probabilities but he may evaluate the material to find out if the facts emerging therefrom taken at their face value establish the ingredi ents constituting the said offence.
After considering the case law on the subject, this Court deduced as under: "(1) That the Judge while considering the question of fram ing the charges under section 227 of the Code has the un doubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
(2) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application.
By and large however if two views are equally possible and the Judge is satisfied that the evidence adduced before him while giving rise to some suspicion but not grave suspicion against the accused he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under section 227 of the Code of Judge which (sic) under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouth piece of the prosecution, but has to con 643 sider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on.
This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
" Again in Supdt. & Remembrancer of Legal Affairs, West Bengal vs Anil Kumar Bhunja & Ors., ; this Court observed in paragraph 18 of the Judgment as under: "The standard of test, proof and judgment which is to be applied finally before finding, the accused guilty or other wise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973.
At this stage, even a very strong suspicion rounded upon materials before the Magistrate which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charge against the accused in respect of the commission of that offence".
From the above discussion it seems well settled that at the Sections 227 228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence.
The Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
The Act is a penal statute.
Its provisions are drastic in that they provide minimum punishments and in certain cases enhanced punishments also; make confessional state ments made to a police officer not below the rank of a Superintendent of Police admissible in evidence and mandates raising of a rebuttable presumption on proof of facts stated in clauses (a) to (d) of sub section (1) of Section 21.
Provision is also made in regard to the identification of an accused who is not traced through photographs.
These are some of the special provisions introduced in the Act with a view to controlling the menace of terrorism.
These provi sions are a departure from the ordinary law since the said law was found to be inadequate and not sufficiently effec tive to deal with the special class of offenders indulging in 644 terrorist and disruptive activities.
There can, therefore, be no doubt that the Legislature considered such crimes to be of an aggravated nature which could not be checked or controlled under the ordinary law and enacted deterrent provisions to combat the same.
The legislature, therefore, made special provisions which can in certain respects b.e said to be harsh, created a special forum for the speedy disposal of such cases, provided for raising a presumption of guilt, placed extra restrictions in regard to the release of the offender on bail, and made suitable changes in the procedure with a view to achieving its objects.
It is well settled that statutes which impose a term of imprisonment for what is a criminal offence under the law must be strict ly construed.
In Usmanbhai Dawoodbhai Memon & Ors.
vs State of Gujarat, ; this Court in paragraph 15 of the judgment observed as under: "The Act is an extreme measure to be resorted to when the police cannot tackle the situation under the ordinary penal law.
The intendment is to provide special machinery to combat the growing menace of terrorism in different parts of the country.
Since, however, the Act is a drastic measure, it should not ordinarily be resorted to unless the govern ment 's law enforcing machinery fails.
" To put it differently the ratio of the decision is that the provisions of the Act need not be resorted to if the nature of the activities of the accused can be checked and con trolled under the ordinary law of the land.
It is only in those cases where the law enforcing machinery finds the ordinary law to be inadequate or not sufficiently effective for tackling the menace of terrorist and disruptive activi ties that resort should be had to the drastic provisions of the Act.
While invoking a criminal statute, such as the Act, the prosecution is duty bound to show from the record of the case and the documents collected in the course of investiga tion that facts emerging therefrom prima facie constitute an offence within the letter of the law.
When a statute pro vides special or enhanced punishments as compared to the punishments prescribed for similar offences under the ordi nary penal laws of the country, a higher responsibility and duty is cast on the Judge to make sure there exists prima facie evidence for supporting the charge levelled by the prosecution.
Therefore, when a law visits a person with serious penal consequences extra care must be taken to ensure that those whom the legislature did not intend to be covered by the express language of the statute are not roped in by stretching the language of the law.
But that does not mean that the judicial officer called upon to decide whether 645 or not a case for framing a charge under the Act is made out should adopt a negative attitude.
He should frame a charge if the prosecution shows that the material placed on record and the documents relied on give rise to a strong suspicion of the accused having committed the crime alleged against him.
We may now proceed to apply the law stated above to the facts of the present case.
The prosecution case against the five accused persons is that they formed an unlawful assem bly, killed Raju and injured keshav 'with intent to strike terror in the people or any section of the people ' i.e. the residents of the locality, by the use of lethal weapons such as knives and iron rods and thereby committed offences punishable under Section 3(1) of the Act read with the offences under the Penal Code and the Bombay Police Act.
When the complaint was lodged by the injured Keshav on 12th July, 1989 no offence under section 3(1) of the Act was registered.
The offence under section 3(1) of the Act was introduced for the first time on 29th July, 1989.
That means that between 12th July, 1989 and 29th July, 1989 the Inves tigating Officer collected evidence which enabled him to register an offence under section 3(1) of the Act.
When the first bail application was disposed of on 2nd September, 1989, the Designated Court came to the conclusion that prima facie section 3(1) of the Act had no application.
In taking that view the Designated Court examined the statements of witnesses on which reliance was placed to support the prose cution case that section 3(1) of the Act was attracted.
It may be stated that accused Santosh Rathod runs a cycle repair shop.
On the day previous to the occurrence the deceased Raju had gone to the cycle shop as his tube was punctured.
At that time accused Jitendra and some others were present at the cycle shop and in their presence accused Jitendra is alleged to have stated as under: "Presently Raju and Keshav are having dominance in the town.
We would become dadas of the town upon taking lives out of them.
Then there would not be any rival to us in this town.
Upon commission of murder of Raju and Keshav on account of tenor the people would be scared.
" This is unfolded in the statements of Raju Narain, Sukharam Shinde and Bhau Saheb.
Thus according to the prosecution the genesis of the crime was to gain supremacy in the underworld by eliminating the members of the rival gang.
Ram Lokhande speaks about the incident in question and states that he had heard the assailants stating that on the elimination of Raju and Keshav they will become the Dadas and 646 no one will dare to raise his voice against them.
Bhika spoke about the previous incident on the same day at about 11.30 a.m. which shows that there was rivalry between the two gangs.
Mr. Masodkar, the learned counsel for the State Government, as well as the appellant of criminal Appeal No. 703/89, therefore, contended that the acts of violence were perpetrated with intent to strike terror in the people at large and in particular the residents of the locality in which the crime was committed.
Our attention was also drawn to certain statements of witnesses to the effect that some of the accused persons were related to the members of the Shiv Sena party.
The Designated Court came to the conclusion that the material placed before it and the statements re corded by the Investigating Officer did not disclose the commission of an offence under Section 3(1) of the Act.
According to the Designated Court the intention of the accused persons was not to strike terror in the people or a section of the people but only to eliminate Raju and Keshav with a view to gaining supremacy in the underworld.
The learned Judge presiding over the Designated Court then proceeds to add as under: "True it is that few people might have been terror striken and terror might have been the fall out of naked act, but to strike the terror amongst people was not the object of this naked act.
If at all people are getting terror striken, it is those few people who live by the crime and not the people law abiding majority of citizens.
Going by these statements there is nothing more to this crime than a strife between two warring factions staking claim to the supremacy of underworld." The learned Judge also came to the conclusion that there was nothing on record to show that the Government 's law enforc ing machinery had failed and it had become necessary to resort to the drastic provisions of the Act with a view to combating the menace of terrorism.
We have carefully considered the statements of the witnesses on which the prosecution relies in support of its contention that the accused had committed an offence under section 3(1) of the Act.
We think that the Designated Court was right in coming to the conclusion that the intention of the accused persons was to eliminate Raju and Keshav for gaining supremacy in the underworld.
A mere statement to the effect that the show of such violence would create terror or fear in the minds of the people and none would dare to oppose them cannot constitute an offence under section 3(1) of the Act.
That may indeed 647 be the fail out of the violent act but that cannot be said to be the intention of the perpetrators of the crime.
It is clear from the statement extracted earlier that the inten tion of the accused persons was to eliminate the rivals and gain supremacy in the underworld so that they may be known as the bullies of the locality and would be dreaded as such.
But it cannot be said that their intention was to strike terror in the people or a section of the people and thereby commit a terrorist act.
It is clear that there was rivalry between the party of the accused on the one hand and Raju and Keshav on the other.
The former desired to gain suprema cy which necessitated the elimination of the latter.
With that in view they launched an attack on Raju and Keshav, killed the former and injured the latter.
Their intention was clearly to eliminate them and not to strike terror in the people or a section of the people.
It would have been a different matter if to strike terror some innocent persons were killed.
In that case the intention would be to strike terror and the killings would be to achieve that objective.
In the instant case the intention was to liquidate Raju and Keshav and thereby achieve the objective of gaining suprema cy in the underworld.
The consequence of such violence is bound to cause panic and fear but the intention of commit ting the crime cannot be said to be strike terror in the people or any section of the people.
We are, therefore, of the view that the Designated Court was fully justified in taking the view that the material placed on record and the documents relied on did not prima facie disclose the commis sion of the offence punishable under section 3(1) of the Act.
It was next contended by the learned counsel for the State of Maharashtra that under section 12(1), when trying the offence under the Act, the Designated Court was entitled to try any other offence with which the accused were charged at the same trial since the offences punishable under the Penal Code and the Bombay Police Act were committed in the course of the same incident.
Section 12(.1) no doubt empow ers the Designated Court to try and offence punishable under any other statute along with the offence punishable under the Act if the former is connected with the latter.
That, however, does not mean that even when the Designated Court comes to the conclusion that there exists no sufficient ground for framing a charge against the accused under sec tion 3(1) of the Act it must proceed to try the accused for the commission of offences under other statutes.
That would tantamount to usurping jurisdiction.
Section 18, therefore, in terms provides that where after taking cognizance of any offence the Designated Court is of the opinion that the offence is not triable by it, it shall, notwithstanding that it has no jurisdiction to try such offence, 648 transfer the case for the trial of such offence to any court having jurisdiction under the Code.
Therefore, when the Designated Court came to the conclusion that there was no prima facie evidence to frame a charge under section 3(1) of the Act, it was justified in transferring the case to the Court of Sessions, Ahmadnagar, which alone had jurisdiction under the Code.
Once the Designated Court came to the con clusion that the evidence was not sufficient to frame a charge under section 3(1) of the Act, the Designated Court had no alternative but to resort to Section 18 and transfer the case to the competent court under the Code.
We, there fore, do not see any merit in the contention of the learned counsel for the State of Maharashtra that even after the Designated Court came to the conclusion that no ground was made out under section 3(1) of the Act, it was duty bound by virtue of section 12(1) of the Act to proceed with the trial for the other offences under the Penal Code and the Bombay Police Act.
We think the course adopted by the Designated Court in transferring the case to the Sessions Court in clearly in keeping with section 18 of the Act.
Before we part we may state that Mr. Lalit the learned counsel for the accused tried to urge before us that the provisions of the Act were intended to deal with political terrorism intended to undermine the security of the State and not to ordinary law and order problems.
We do not con sider it necessary to go into this larger question because, in our opinion, the Designated Court was fight in coming to the conclusion that this was a case of inter gang rivalry not attracting Section 3(1) of the Act.
In the above view that we take all the three appeals fail and are dismissed.
Mr. Lalit the learned counsel for the accused stated that since the High Court has directed expeditious disposal of the case he would not press the special leave petition directed against the High Court 's order refusing bail.
In view of the said statement, the Special leave petition No. 2459/89 will stand disposed of as not pressed.
We may, however, state that the Sessions Court to which the case stands transferred should endeavour to complete the trial as early as possible, preferably within four months from the date of receipt of this Court 's order.
T.N.A. Petition disposed of.

summary/full:
The accused petitioners were charged under section 302 and 307 read with Sections 147, 148 and 149 of the Indian Penal Code and Section 37 of the Bombay Police Act, 1951.
Subsequently they were also charged under section 3 of the Terrorist and Disruptive Activities (Prevention) Act.
They moved the Designated Court for grant of bail contending that the provisions of the 1987 Act were wrongly and mali ciously invoked and the Designated Court held that section 3 of the Act was inapplicable.
The State of Maharashtra has preferred an appeal to this Court against the said order of the Designated Court.
Since the accused were directed to approach the regular court, they moved bail applications before the Sessions Judge, Ahmadnagar which were rejected.
Thereafter, they approached the High Court and during the pendency of their bail applications before the High Court, the prosecution submitted a charge sheet against them in the Designated Court under section 3 of the 1987 Act.
Conse quently the High Court rejected their bail applications and the accused again approached the Designated Court for bail.
The Designated Court again held that the material 634 placed before it and the statement recorded by the Investi gating Officer did not disclose the commission of an offence under section 3 of the Act.
Accordingly, it discharged the accused under section 227 of the Code of Criminal Procedure, 1973 and transferred the case to court of Sessions for trial of other offences under the Penal Code and the Bombay Police Act.
Against this order of the Designated Court, two appeals have been filed in this Court; one by the deceased 's father and the other by the State.
After transfer of their case to the regular court.
the accused persons approached the High Court for bail which was rejected.
The accused persons have filed a Special Leave Petition in this Court against the High Court 's order refusing the bail.
Dismissing the appeals and disposing of the petition, this Court.
HELD: 1.
A mere statement by the accused persons to the effect that the show of violence would create terror or fear in the minds of the people and none would dare to oppose them cannot constitute an offence under section 3(1) of the Act.
That may indeed be the fail out of the violent act but that cannot be said to be the intention of the perpetrators of the crime.
[646H; 647A] 1.1 While invoking a criminal statute, such as the Terrorist and Disruptive Activities (Prevention) Act,1987, the prosecution is duty bound to show from the record of the case and the documents collected in the course of investiga tion that facts emerging therefrom prima facie constitute an offence within the letter of the law.
[644F] 1.2 In the instant case it is clear from the statement of the accused persons that their intention was to liquidate rivals and thereby achieve the objective of gaining suprema cy in the underworld.
The consequence of such violence is bound to cause panic and fear but the intention of commit ting the crime cannot be said to be to strike terror in the people or any section of the people.
Therefore, the Desig nated Court was fully justified in taking the view that this was a case of inter gang rivalry only and that the material placed on record and the documents relied on did not prima facie disclose the commission of the offence punishable under section 3(1) of the Act.
[647D E] 2.
Section 12(1) of the Terrorist and Disruptive Activi ties (Prevention) Act, 1987 empowers the Designated Court to try any offence punishable under any other statute along with the offence punishable under the Act if the former is connected with the latter.
That, however, does not mean that even when the Designated Court comes to the con 635 clusion that there exists no sufficient ground for framing a charge against the accused under Section 3(1) of the Act it must proceed to try the accused for the commission of of fences under other statutes.
Thai would tantamount to usurp ing jurisdiction.
Section 18, therefore, in terms provides that where after taking cognizance of any offence the Desig nated Court is of the opinion that the offence is not tri able by it, it shall, notwithstanding that it has no juris diction to try such offence, transfer the case for the trial of such offence to any Court having jurisdiction under the Code, Therefore, when the Designated Court came to the conclusion that there was no prima facie evidence to frame a charge under section 3(1) of the Act, it was justified in transferring the case to the Court of Sessions, which alone had jurisdiction under the Code.
The course adopted by the Designated Court in transferring the case to the Sessions Court for trial of offences under other statutes is clearly in keeping with section 18 of the Act.
[647F H; 648A C] 3.
Statutes which impose a term of imprisonment for what is a criminal offence under the law must be strictly con strued.
[644C] Usmanbhai Dawoodbhai Memon & Ors., vs State of Gujrat, ; referred to.
3.1 When a statute provides special or enhanced punish ments as compared to the punishments prescribed for similar offences under the ordinary penal laws of the country, a higher responsibility and duty is cast on the Judge to make sure there exists prima facie evidence for supporting the charge levelled by the prosecution.
Therefore.
when a law visits a person with serious penal consequences extra care must be taken to ensure that those whom the legislature did not intend cover by the express language of the statute are not roped in by stretching the language of the law.
But that does not mean that the judicial officer called upon to decide whether or not a case for flaming a charge under the Act is made out should adopt a negative attitude.
He should frame a charge if the prosecution shows that the material placed on record and the documents relied on give rise to a strong suspicion of the accused having committed the crime alleged against him.
[644G H; 645A] 4.
The Court while considering whether to discharge the accused or to frame a charge against him i.e. at the stage of sections 227 228 of the Code of Criminal Procedure, 1973 is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face.
value disclose the existence of all the ingredients constituting the alleged offence.
Since the Trial Court is 636 at the stage of deciding whether or not there exists suffi cient grounds for framing the charge, its enquiry must necessarily be limited to deciding if the facts emerging from the record and documents constitute the offence with which the accused is charged.
At that stage it may sift the evidence for that limited purpose but it is not required to marshal the evidence with a view to separating the grain from the chaff.
All that it is called upon to consider is whether there is sufficient ground to frame the charge and for this limited purpose it must weigh the material on record as well as the documents relied on by tile prosecu tion.
[643E; 641F G] State of Bihar vs Ramesh Singh, ; ; Union of India vs Prafulla Kumar Samal & Anr., ; and Supdt. & Remembrancer of Legal Affairs, West Bengal vs Anil Kumar Bhunja & Ors., ; , referred to.


judgement:
vil Appeal Nos.
6247~48 of 1983.
From the Judgment and Order dated 3.7.1980 of the Orissa High Court in Original Jurisdiction Case Nos. 91 and 155 of 1977.
Kapil Sibal, Additional Solicitor General, Dilip Tandon and CVS Rao for the Appellant.
Mrs. Bharati Anand (N.P.) for the Respondents.
The Judgment of the Court was delivered by K.N. SAIKIA, J.
These appeals by special leave are from the Judgment of the High Court of Orissa, Cuttack dated July 3, 1980 in two writ applications under Article 226 of the Constitution of India allowing the applications and quashing the penalty imposed on the writ petitioner under the of 1962 (hereinafter referred to as 'the Act ').
A commercial vessel M.V. Jag Darshan arrived at Paradip Port on March 29, 1976.
It was being rummaged by the customs officers from April 6, 1976 to April, 13, 1976.
In course of the rummage the customs officers recovered various contra band goods worth more than Rs. 1,40,000 (Rupees one lac forty thousand), seized some quantity and detained the vessel by issue of a proper notice to the Master of the vessel with a copy to the second respondent Sri V.L. Choud hary, Deputy Conservator of Paradip Port Trust.
At the instance of Sri V.L. Choudhary and another the vessel was shifted to the reads i.e. far away anchorage of paradip port which was far in the high sea.
As a result of the shifting, despite the detention order, the rummaging operation was interrupted as the customs staff had to leave the vessel and the vessel had to remain unguarded for nearly 38 hours.
It was alleged that the contraband goods then somehow disap peared from the vessel.
Sri V.L. Choudhary was asked to show cause as to why for his failure to comply with the provi sions of the Act and for abetment of the commission of offence of smuggling by his deliberate obstructions to the customs officers in the recovery of smuggled goods from the detained vessel M.V. Jag Darshan in violation of section 133 of the Act he should not be proceeded against and as to why penalty should not be imposed on him under section 117 and 151 of the Act.
In reply to the notice the second respondent Sri V.L. Choud hary 708 took the plea that the Collector of Customs and Central Excise had no jurisdiction to initiate proceedings against him as what he had done was in discharge of his duties under the Paradip Port Rules and that the provisions of section 151 of the Act were not attracted in his case.
The Collector rejecting the pleas imposed a penalty of Rs. 1,000 upon Sri.
V.L. Choudhary under section 117 of the Act.
The operative part of the order said: "I, therefore, impose a penalty of Rs. 1,000 (Rs. one thou sand) on Sri V.L. Choudhary, Deputy Conservator of Paradip Port, under section 117 of the customs act, 1962.
The penalty should be deposited into any Government Treas ury/State Bank of India within a fortnight from the date of receipt of this order under head 1037 Customs Miscellane ous, Receipts, Fines, Rent, etc.
" The order of the Collector was challenged in two writ petitions under Article 226 of the Constitution of India in the High Court of Orissa.
The High Court quashed the penalty and allowed the writ petitions on two grounds.
First, that the impugned order in each case in categorical terms showed that the jurisdiction had been exercised under sections 133 and 151 of the Act; section 137 of the Act made provision for cognizance of offences and section 133 had been included therein, and as such section 133 must be referring to Court and not to the Collector as the punishing authority, where fore, the Collector was not competent to impose punishment for the offence under that section.
Secondly, section 151 required the officers mentioned therein to assist the Cus toms Officers, but the two officers were employee of the Port Trust and were not officers mentioned in clauses (d) or (e) of that section as the former referred to officers of the Central or State Government employee at any port or airport and clause (e) referred to such other officers of the Central or State Government or local authority as were specified by the Central Government in this behalf by noti fication in the official gazette so as to bring the two officers under clause (e).
Mr. Kapil Sibal, learned Additional Solicitor General of India, has not seriously assailed the finding that the officers did not come under section 151 of the Act.
His main submissions assailing the finding as to applicability of section 133 of the Act are that section 133 both creates an offence and also prescribes a penalty, and though the section is refera ble to Court in so far as prosecution and punishment is concerned for 709 the offence, there would be no bar to deal with that offence under section 117 of the Act.
Counsel submits that even assuming but not admitting that section 133 referred only to Court and the offence could not otherwise be dealt with, Sri V.L. Choud hary having abetted the contravention of the provisions of the Act he made himself liable to penalty of not exceeding Rs. 1,000 under section 117 of the Act and the penalty was right ly imposed on him by the Collector; and the High Court ought not to have set aside the penalty.
Counsel further submits that under the there would be no double jeopardy if in an appropriate case one has been prosecuted and pun ished under the sections in Chapter XVI of the Act and also subjected to penalty under the provisions other than those in Chapter XVI of the Act for offences including those in Chapter XVI of the Act.
None appears for the respondents.
T,, weigh the submissions, we may examine the relevant provisions of the Act.
Admittedly, 'offence ' has not been defined in the Act.
Chapter XVI in sections 132 to 140A deals with "Offences.
and Prosecutions".
Section 132 constitutes false declaration, false documents, etc.
an offence.
Section 133 constitutes obstruction of officer of customs an of fence.
Similarly, by section 134, refusal to be ex rayed, by section 135, evasion of duty or prohibition are constituted of fences.
It may be noted that section 135(1) is 'without prejudice to any action that may be taken under this Act. ' This clear ly envisages any action that may be taken under this Act over and above the prosecution and punishment prescribed under this Section.
Section 137 deals with "Cognizance of Offences by Courts".
Section 138 says that offences are to be summarily tried, except those stated under the section.
Section 138A provides for presuming the existence of culpa ble mental state where such a state is necessary.
Chapter XIV in sections 111 127 deals with confiscation of goods and conveyance and imposition of penalties.
Section 120 provides for confiscation of smuggled goods notwith standing any change in form etc.
Section 122 deals with adjudication of confiscations and penalties.
Under this section, in every case under this Chapter in which anything is liable to confiscation or any person is liable to a penalty, such confiscation or penalty may be adjudged by appropriate customs authorities.
Section 123 deals with burden of proof in certain cases and in some cases puts in on the owner or possessor of the goods.
Section 127 says that the award of any confiscation or penalty under this Act by an officer of Customs shall not prevent the infliction of any punishment to 710 which the person affected thereby is liable under the provi sions of Chapter XVI of the Act or under any other law.
This clearly shows that there will be no double jeopardy if for the same transaction, act or occurrence there is an award of any confiscation or penalty under the relevant provisions of the Act and also infliction of any punishment under the provisions of Chapter XVI of the Act or under any other law.
Section 117, included in Chapter XIV, deals with penalties for contravention etc.
not expressly mentioned.
It says: "Any person who contravenes any provision of this Act or abets any such contravention or who fails to comply with any provision of this Act with which it was his duty to comply, where no express penalty is elsewhere provided for such contravention or failure, shall be liable to a penalty not exceeding Rs. 1,000.
Though included in Chapter XIV, section 117 provides for penalties for contravention of any provision of the Act, an abetment of any such contravention or failure to comply with any provision of the Act with which it was one 's duty to comply but no express penalty is elsewhere provided.
For such contravention or failure a penalty of not exceeding Rs. 1,000 has been prescribed.
From the foregoing provisions, we find that for the same transaction, act or occurrence in an appropriate case, there may be prosecution and punishment under Chapter XVI and confiscation of goods and conveyances and also imposition of penalty not exceeding one thousand rupees for contravention of any of the provisions of the Act or abetment of any such contravention and or failure to comply with any provisions of the Act with which it was one 's duty to comply where no express penalty is elsewhere provided for such contravention or failure.
It may also be possible that an act or event which entails punishment under Chapter XV1 may be itself or with other ingredients also amount to a contravention of any of the provisions of the Act or abetment of any such contra vention.
Where the same act or event constitutes an offence under Chapter XVI and at the same time constitutes a contra vention or abetment of contravention of any of the provi sions of the Act or failure to perform any duty prescribed under the Act or amounts to non compliance with any of the provisions of the Act, there will be possibility of prosecu tion and punishment under Chapter XVI of the Act and any other provision of law and at the same time confiscation and penalty under Chapter XIV of the Act.
711 As regards the allegations in the case, under section 106(1) of the Act where the proper officer has reason to believe that any vessel in India or within the Indian customs waters has been, is being, or is about to be, used in the smuggling of any goods or in the carriage of any goods which have been smuggled, he may at any time stop any such vessel and (a) rummage and search any part of the vessel (b) examine and search any goods in the vessel.
Under section 110(1) if the proper officer has reason to believe that any goods are liable 10 confiscation 'under the Act, he may seize such goods.
Section 111 provides for confiscation of improperly imported goods.
Under the facts alleged in this case, the vessel could, therefore, lawfully be detained, rummaged and the goods suspected seized.
It was alleged that the shifting of the vessel was on order of the second respondent and that because of the shifting to the reads away in the deep sea the proper officers had to leave the vessel with the seized goods and the vessel had to remain unguarded for 38 hours during which period the contraband goods happened to be illegally disposed of.
Section 133 reads: "133.
Obstruction of officer of customs: If any person intentionally obstructs any officer of customs in the exer cise of any powers conferred under this Act, such person shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both.
" There may be scope for holding that there was intention al obstruction on the part of the second respondent if the allegations are proved.
In Santosh Kumar vs State, ; it was held that where there was an order for seizure it would amount to obstruction under section 186 IPC if the goods were not allowed to be removed.
On the authority of Hinchliffe vs Sheldon, [1955] 1 WLR 1207 it can be said that the obstruction is not confined to physical obstruction and it includes anything which makes it more difficult for the police or public servant to carry out their duties.
But the question is did it also amount to abetment of contravention of any of the provisions of the Act? Was there any abetment to alleged smuggling of the goods seized and those which could have been seized? the Collectors orders, though there was discussion of offence under section 133 and failure to perform duty under section 151, the order itself was passed ex facie under the provi sions of section 117 of the Act.
On perusal of the impugned judgment of the High Court.
we do not find 712 any discussion on this aspect of the matter and there is no indication as to whether this was urged or not before the High Court.
Since the learned Additional Solicitor General has emphasised this aspect and we are inclined to agree with him to the extent indicated above, and as the second re spondent is not represented before us, we are inclined to set aside the impugned order and remand the cases to the High Court for fresh disposal in accordance with law in the light of the observations made hereinabove after giving opportunities to the parties for making their submissions on the basis of the evidence already on record; and we order accordingly.
G.N. Appeal allowed.

dataset_name: IN-Abs

summary/full:
A commercial vessel which arrived at Paradip Port was rummaged by the Customs Officers and contraband goods worth more than Rs.1,40,000 were recovered.
The officers also detained the vessel by issue of a notice to the Master of the vessel with a copy to the second respondent, the Deputy Conservator of Paradip Port Trust.
At the instant of the second respondent and another, the vessel was shifted to the reads far away from the port in the high sea.
This resulted in the interruption of the rummaging operation and the vessel being left unguarded for about 38 hours, during which period it was alleged that the contraband goods disappeared from the vessel.
The second respondent was asked to show cause as to why he should not be proceeded against and why penalty should not he imposed on him, under Sections 117 and 151 of the .
In his reply, the second respondent took the plea that the Customs and Central Excise Authorities had no jurisdiction to initiate proceedings against him and that section 151 of the Act was not attracted.
Rejecting his plea, the Collector imposed a penalty of Rs.1,000 under section 117 of the Act.
The said order of the Collector was challenged in the High Court by way of writ petitions.
The High Court allowed the writ petitions and quashed the penalty.
This appeal, by special leave, is against the orders of the High Court quashing the penalty, On behalf of the appellant it was contended that Section 133 706 creates an offence and also prescribes a penalty, and though the section s referable to Court in so far as prosecution and punishment is concerned for the offence, there would be no bar to deal with that offence under section 117 of the Act.
It was also contended that there would be no double jeopardy if in an appropriate case one has been prosecuted and punished under the sections in Chapter XVI of the Act and also sub jected to penalty under the provisions other than those in Chapter XVI if the Act for offences including those in Chapter XVI of the Act.
Allowing the appeal, HELD: 1.
Where the same Act or event constitutes an offence ruder Chapter XVI and at the same time constitutes a contravention or abetment of contravention of any of the provisions of the Act or failure 0 perform any duty pre scribed under the Act or amounts to noncompliance with any of the provisions of the Act, there will be possibility of prosecution and punishment under Chapter XVI of the Act and any other provision of law and the same time confiscation and penalty under Chapter XIV of the Act.
[710G H] 2.
In the instant case, the vessel could, therefore, lawfully be detained, rummaged and the goods suspected seized.
There may be cope for holding that there was inten tional obstruction on the part of he second respondent if the allegations are proved.
Where there was an order for seizure it would amount to obstruction under section 186 IPC if the goods were not allowed to be removed.
Obstruction is not confined to physical obstruction and it includes anything which makes it more difficult for the police or public servant to carry out their duties.
[711B; F] Santosh Kumar vs State. ; and Hinchliffe vs sheldon, [1955] 1 WLR 1207, referred to.
In the Collector 's order, though there was discussion of offence under section 133 and failure to perform duty under section 151, the order itself was passed ex facie under the provi sions of section 117 of the Act.
There is no discussion in the High Court 's order on this aspect of the matter and here is no indication as to whether this was urged or not before the High Court.
Further, since the second respondent is not represented before his Court, the said order is set aside and the cases remanded to the High Court for fresh disposal in accordance with law in the light of the observations made hereinabove after giving opportunities to the parties or making their submissions on the basis of the evidence al ready on record.
[711H; 712A B]


judgement:
Special Leave Petition (Civil) No. 5775 of 1990.
From the Judgment and Order dated 30.11.1989 of the Allahabad High Court in C. Misc.
W.P. No. 2431 of 1989.
737 Dr. L.M. Singhvi and Pramod Dayal for the Petitioners.
T.S. Krishnamoorthy lyer and D.M. Nargolkar for the Respondents.
The following Order of the Court was delivered On the facts and circumstances of the case including the facts set out in the counter affidavit filed by R.B. Sahi we are not inclined to interfere with the impugned order passed by the Allahabad High Court.
Very briefly stated respondent No. 1 is the owner of a Petrol Pump which is set up on a site in Dehradun, of which respondent No. 1 is the lessee.
The 'No Objection Certifi cate ' granted for conducting the said Petrol Pump.was can celled by respondent No. 5, the District Magistiate of Dehradun, and that order was upheld by the Commissioner.
The Division Bench of the Allahabad High Court by the impugned judgment set aside the order of the Commissioner.
The spe cial leave petition is directed against the said order as we have already observed we see no reason to interfere with the actual order passed by the Division Bench but we would like to make a clarification regarding the interpretation of Rule 151 of the Rules framed in 1976 under the Petroleum Act.
Rule 144 of the said Rules deals with the issue of a 'No Objection Certificate ' for a new license for running a Petrol Pump.
Rule 151 deals with the cancellation of the 'No Objection Certificate ' and the said rule reads as follows: (1) "A no objection certificate granted under Rule 144 shall be liable to be cancelled by the District Authority or the State Government, if the District Authority or the State Government is satisfied, that the licensee has ceased to have any right to use the site for storing petrol; Provided that before cancelling a no objection certificate, the licensee shall be given a reasonable opportunity of being heard.
(2) A District Authority or a State Government cancelling a no objection certificate shall record in writing the reasons for such cancellation and shall immediately furnish to the licen 738 see and to the licensing authority concerned a copy of the order cancelling the no objection certificate.
" The High Court has rightly observed that the District Authority under Rule 151 can cancel the No Objection Certif icate only when the licensee ceases to have any fight to use the site for storing petrol.
However, there are certain subsequent observations made by the High Court in the im pugned judgment which might lead to an inference that so long as the licensee continues to have lease hold rights on the site, the 'No Objection Certificate ' cannot be cancelled at all.
That does not appear to be the correct position in law.
On a reading of sub rule (1) of Rule 151 it is clear that a 'No Objection Certificate ' granted under Rule 144 can be cancelled wherever the licensee ceases to have any right to use the site for storing petrol and that right could be lost by a licensee either by his tenancy or right to the use of the site coming to an end or for any other reason where by, in law, the right to use the site for storing petrol ceases.
In view of the clarification which we have made, Dr. Singhvi, learned counsel for the petitioner states that he does not wish to press the petition.
The Special Leave petition is, therefore, dismissed.
N.P.V. Petition dismissed.

summary/full:
The No Objection Certificate granted to Respondent No. 1 Corporation under Rule 144 of the Petroleum Rules 1976 for running a petrol pump set up by it on a lease hold site was cancelled by respondent No. 5, the District Magistrate under Rule 151 of the Rules.
This order was upheld by the Commis sioner, but was set aside by the High Court, on appeal.
Hence the special leave petition against the High Court 's order.
Dismissing the special leave petition, this Court, HELD: The High Court was right in holding that the District Authority under Rule 151 of the Petroleum Rules, 1976 can cancel the No Objection Certificate only when the licensee ceases to have any right to use the site for stor ing petrol.
However, certain subsequent observations made by the High Court in the judgment might lead to an inference that so long as the licensee continues to have leasehold rights on the site, the 'No Objection Certificate ' cannot be cancelled at all.
That is not the correct position in law.
[738B C] On a reading of sub rule (1) of the Rule 151 it is clear that a 'No Objection Certificate ' granted under Rule 144 can be cancelled wherever the licensee ceases to have any right to use the site for storing petrol and that right could be lost by a licensee either by his tenancy or right to the use of the site coming to an end or for any other reason where by, in law, the right to use the site for storing petrol ceases.
[738C D]


judgement:
ivil Appeal No. 4499 of 1986.
From the Judgment and Order dated 11.8.1986 of the Punjab and Haryana High Court in R.S.A. No. 974 of 1985 and Civil Misc.
No. 1034 C of 1985.
Harbans Lal, Dr. Meera Agarwal, (N.P.) and R.C. Mishra for the Appellant.
S.K. Mehta, Aman Vachher and Atul Nanda for the Respond ents.
The Judgment of the Court was delivered by R.M. SAHAI, J.
Disinherited daughter, under a Will alleged to have been executed by her father one day before his death bequea 815 thing all his property in favour of sons of her only sister, has assailed validity of orders of three courts below for failure to apply the rule that presumption of due execution of a pious and solemn document like Will stood rebutted due to existence of suspicious circumstances which the propound er could not rule out specially when he had taken active part in its execution.
Soft cornor for grand children or likeability for a son or daughter or their issues is not uncommon to our society.
Rather at times it becomes necessary either to provide for the lesser fortunate or to avoid the property from passing out of the family.
But when disputes arise between heirs of same degree, and the beneficiary even chooses to deny the blood ties, and that too unsuccessfully, then court 's re sponsibility of performing its duties carefully and pains takingly multiplies.
Unfortunately it was not properly comprehended by any of the courts, including the High Court which was swayed more by happy marriage of appellant, a consideration which may have been relevant for testator but wholly irrelevant for courts as their function is to judge not to speculate.
Although freedom to bequeath one 's own property amongst Hindus is absolute both in extent and person, including rank stranger, yet to have testamentary capacity or a disposing state of mind what is required of propounder to establish is that the testator at time of disposition knew and understood the property he was dispos ing and persons who were to be beneficiaries of his disposi tion.
Prudence, however, requires reason for denying benefit to those who too were entitled to bounty of testator as they had similar claims on him.
Absence of it may not invalidate a Will but it shrouds the disposition with suspicion as it does not give any inkling to the mind of testator to enable the Court to judge if the disposition was voluntary act.
Taking active interest by propounder in execution of Will raises another strong suspicion.
In H. Venkatachalliah vs
N. Themmajamma; , it was held to render the Will infirm unless the propounder cleared the suspicion with clear and satisfactory evidence.
Mere execution of Will, thus, by producing scribe or attesting witness or proving genuiness of testator 's thumb impressions by themselves was not sufficient to establish validity of Will unless suspi cious circumstances, usual or special, are ruled out and the courts ' conscience is satisfied not only on execution but about its authenticity.
See Kalyan Singh vs Smt.
Chhoti & Ors., [1989] Judgment Today page 439.
Coming now to facts it has been found by all the three courts below that testator was a migrant from West Pakistan who after migration resided in village Rupena, was ill for sometime and lived with his 816 daughter and her sons who are the beneficiaries six months prior to his death.
It was further found that appellant was also one of the daughters.
No finding was recorded that she or her sons had any sore or sour relations with testator.
But the most important finding was that even though the testator could sign yet he put his thumb mark on it.
It was found to be genuine.
The execution was thus held beyond doubt.
But it was sufficient to put the courts on alert specially when the professional scribe fetched by benefici ary 's father admitted that when he reached beneficiary 's residence where the Will was executed, he found testator covered with a quilt in the afternoon of August with whom he did not talk nor enquire about his health.
Unfortunately none of the Courts paid any attention to these probably because they were swayed with due execution even when this Court in Venkatachalliah 's case (supra) had held that, proof of signature raises a presumption about knowledge but the existence of suspicious circumstances rebuts it.
Importance of these aspects would have become apparent if they had examined the Will which speaks for itself but which was taken for granted.
Relevant part of it is extracted below: "They served me with money and the core of their heart.
I am happy with their service.
Therefore I make this Will without any pressure or influence that during my life time I shall be owner of all my property both moveable and immovable i.e. land, house etc.
After my death my entire property, land, houses, shops, factory, machinery, residential house, resi dential goods, deposit in Bank or Post office (i.e. whatever is in my name in Punjab or any part of India, it will be in the ownership of and in possession of my grand sons (daugh ters/sons) Harmesh Singh, Mohan Lal, Sohan Lal son of Gurdev Singh son of Raunaq Singh in equal shares.
No body else who may be my near relations or distantly related will have any right in my property".
What strikes immediately is professionalism of the recital.
Grave doubt arises if recital of each and every item which could be visualised, was as a result of professional exper tise or the old man was so unwell and died on the next day that he could not speak resulting in speculative narration of property depending on imagination what he must have been possessed of.
Mention of house, factory, machinery and bank deposit was meaningful.
House had already been sold.
No evidence was led that he was possessed of another house or that he had any factory or machinery or bank deposits.
Explanation of learned counsel that omission was as the respondent had challenged the very relation 817 ship of appellant could not remove the suspicion created by the recital that bequest was made not by an independent man after understanding or on his dictation, but was work of a scribe or beneficiary 's father who did not take any chance and attempted to rope in every possible property that could have been conceived of.
Happy marriage or financially well settlement of appellant could not add to genuineness of Will.
The High Court in recording this finding, completely misdirected itself.
More so, when no finding of dire circum stances of respondent to help out of which testator dis inherited the other daughter was recorded by any courts.
Ratio in Malkani vs Jamadar, AIR 1987 SC 767 was relied on to dissuade this Court from interfering, both, because the finding that Will was genuine, was a finding of fact and omission to mention reason for dis inheriting the daughter or taking prominent part by beneficiary by itself was not sufficient to create any doubt about the testamentary capac ity was because of misunderstanding of the correct import of the decision and the circumstances in which it was rendered.
Property in Malkani 's case (supra) was land.
Beneficiary was nephew as against marned daughter.
Anxiety in village to protect landed property or agricultural holdings from going out of family is well known.
Even though it cannot be said to be hard and fast rule yet when dis inheritance is amongst heirs of equal degree and no reason for exclusion is dis closed, then the standard of scrutiny is not the same and if the courts below failed to be alive to it as is clear from their orders then their orders cannot be said to be beyond review.
Although this Court does not normally interfere with findings of fact recorded by courts below, but if the find ing is recorded by erroneous application of principle of law, and is apt to result in miscarriage of justice then this Court will be justified in interfering under Article 136.
For the reasons stated above, the appeal succeeds and is allowed.
The order and judgment of all the three courts below, are set aside and the suit filed by the appellant for declaration that the Will executed by her father was in valid, shall stand decreed.
The appellant shall be entitled to its costs.
G.N. Appeal al lowed.

summary/full:
The appellant 's father executed a Will, just one day prior to his death, bequeathing all his property in favour of the sons of appellant 's only sister.
The testator was ill and lived with the beneficiaries six months prior to his death.
Though the testator could sign, he put his thumb impression on the Will.
The disinherited daughter challenged the genuineness of the Will on the ground that there were suspicious circum stances and the propounder took active part in the execution of the Will.
The Courts below right up to High Court held that the execution of the Will was beyond doubt.
Aggrieved, she has preferred this appeal, by special leave.
Allowing the appeal, this Court, HELD: 1.1 Although freedom to bequeath one 's own proper ty amongst Hindus is absolute both in extent and person, including rank stranger, yet to have testamentary capacity or a disposable mind what is required of propounder to establish is that the testator at the time of disposition knew and understood the property he was disposing and per sons who were to be beneficiaries of his disposition.
Pru dence, however, requires reason for denying benefit to those who too were entitled to bounty of testator as they had similar claims on him.
Absence of it may not invalidate a Will but it shrouds the disposition with suspicion as 814 it does not give any inkling to the mind of testator to enable the Court to judge if the disposition was voluntary act.
Taking active interest by propounder in execution of Will raises another strong suspicion.
Mere execution of Will by producing scribe or attesting witnesses or proving genu ineness of testator 's thumb impressions by themselves was not sufficient to establish validity of Will unless suspi cious circumstances, usual or special, are ruled out and the Court 's conscience is satisfied not only on execution, but its authenticity.
[815D G] H. Venkatachalliah vs
N. Themmajamma; , and Kalyan Singh vs Smt.
Chhoti & Ors., , relied on.
1.2 Happy marriage or financially well settlement of appellant could not add to genuineness of Will.
The High Court in recording this finding, completely misdirected itself.
More so, when no finding of dire circumstances of respondent to help out of which testator dis inherited the other daughter, was recorded by any courts.
[817A B] 2.
Although this Court does not normally interfere with findings of fact recorded by courts below, but if the find ing is recorded by erroneous application of principle of law, and is apt to result in miscarriage of justice then this Court will be justified in interfering under Article 136.
[817E F] Malkani vs Jamadar, AIR 1987 SC 767, distinguished.


judgement:
on (Civil) No. 577 of 1988.
(Under Article 32 of the Constitution of India).
S.R. Bhat and R. Venkataramani for the Petitioner Dr. B.S. Chauhan for the Respondents and Shobha Dikshit for he State of U.P.
The Judgment of the Court was delivered by 741 SABYASACHI MUKHARJI, CJ.
A letter written to this Court was treated as a writ petition under Article 32 of the Constitution of India.
The letter written by Chhetriya Pardushan Mukti Sangharsh Samiti.
Sarnath, alleged environ mental pollution in the area.
It was also alleged therein that the Jhunjhunwala Oil Mills and a refinery plant are located in the green belt area, touching three villages and the Sarnath temple of international fame.
The smoke and dust emitted from the chimneys of the Mills and the effluents discharged from these plants were alleged to be causing environmental pollution in the thickly populated area and were proving a great health hazard.
It was further stated that the people were finding it difficult to eat and sleep due to smoke and foul smell and the highly polluted water.
It was further alleged that the lands in the area had become waste, affecting crops and the orchards damages.
Diseases like TB, jaundice and other ailments were stated to be spreading in an epidemic form.
The growth of children was affected.
It was further alleged that the schools, nursing homes, leprosy homes and hospitals situated on the one kilometer long belt touching the oil Mills and the plant were adversely affected.
It was stated that licences had been issued to one richman Dina Nath for these industrial units thereby risking the lives of thousands of people without enforcing any safety measure either to cure the effluents discharged from the plants or to check the smoke and the foul smell emitted from the chimneys.
The whole area was expected to be ruined due to any explosion or gas leak age.
In that background, the petitioner prayed for necessary directions to check the pollution, and also enclosed a printed leaflet alleging real practices and corruption on the part of the proprietor of these industrial units apart from polluting the atmosphere.
As mentioned hereinbefore, the complaint was made by the said Samiti stated to be a social organisation about envi ronmental pollution and ecological imbalance being caused by the two plants and thereby exposing the population to health hazards and life risk which was, therefore, considered to be a matter of great public importance.
It is necessary to recognise the danger in order to strike a balance between the quality of life to be preserved and the economic devel opment to be encouraged.
Dealing with this aspect in M.C. Mehta vs Union of India & Ors., , it has been stated that whenever applications for licences to establish new industries are made in future, such applica tions should be refused unless adequate provision has been made for the treatment of trade effluents flowing out of the factories.
So, this letter was treated as a writ petition and notice was issued, 742 counter affidavits was filed on behalf of respondent No. 3 being the proprietor of Jhunjhunwala Oil Mills.
Reference was made to the decision of this Court in Bandhua Mukti Morcha vs Union of India & Ors., ; wherein this Court underlined the importance of satisfactory verifi cation of allegations.
The Court was asked to be ever vigi lant against abuse of its process and there was need for appropriate verification.
There is a statute for controlling pollution.
It is wellsettled that if there is a statute prescribing a judicial procedure governing a particular case, the court must follow such procedure.
It is not open to the court to by pass the statute and evolve a different procedure at variance with it.
It is further asserted on behalf of the respondents that between the petitioner Sita Ram Pandey and respondent No. 3, there was a long rivalry.
According to respondent No. 3, the petitioner is an anti social element and his only aim was to extract money from the people like respondent No. 3 as in the present case.
It has further been stated that there has been criminal proceeding against the petitioner and several items have been marked in the affidavit in opposition.
The particulars make out a rather disgraceful state of affairs.
It has been alleged that Mr. Sita Ram Pandey for the last so many years was blackmailing the people, and a case u/s 500 of the I.P.C being Case No. 121/88 was filed.
It has been further averred that respondent No. 3 has complied with the provisions of the Air (Prevention and Control of Pollution) Act, 1981 and of the water (Prevention & Control of Pollution) Act, 1974 and there is no complaint of any kind from any person, body or authority.
The correspondence, in this connection, has been set out.
It further appears that as early as 1980, the petitioner had made various complaints to the A.D.M. (Supply), Distt.
Varanasi, alleging that respondent No. 3 was accused of smuggling of coal and diesel blackmailing.
It was dismissed.
It further appears that there was no complaint from anybody apart from the present petitioner by any authority as to the non compliance of any statute by respondent No. 3.
The orders passed by the Pollution Control Board which had been annexed, also indicate that there are no instance of viola tion of the said Acts.
Time was sought on behalf of respondents for filing a rejoinder which, unfortunately, has not been filed, and no satisfactory explanation has been given therefore.
Certain letters alleged to have been written on behalf of the peti tioners were sought to be placed before us in the Court today.
743 Having considered the facts, circumstances, nature of the allegations and the long history of enemit and animosi ty, we are of the opinion that prima facie the provisions of the relevant Act, namely, the Air Pollution Control Act have been complied with and there is no conduct which is at tributable to respondent No. 3 herein leading to pollution of air or ecological imbalances calling for interference by this Court.
Article 32 is a great and salutary safeguard for preser vation of fundamental rights of the citizens.
Every citizen has a fundamental right to have the enjoyment of quality of life and living as contemplated by Article 21 of the Consti tution of India.
Anything which endangers or impairs by conduct of anybody either in violation or in derogation of laws, that quality of life and living by the people is entitled to be taken recourse of Article 32 of the Constitu tion.
But this can only be done by any person interested genuinely in the protection of the society on behalf of the society or community.
This weapon as a safeguard must be utilised and invoked by the Court with great deal of circum spection and caution.
Where it appears that this is only a cloak to "feed fact ancient grudge" and enemity, this should not only be refused but strongly discouraged.
While it is the duty of this Court to enforce fundamental rights, it is also the duty of this Court to ensure that this weapon under Article 32 should not be misused or permitted to be misused creating a bottleneck in the superior Court preventing other genuine violation of fundamental rights being considered by the Court.
That would be an act or a conduct which will defeat the very purpose of preservation of fundamental rights.
Having regard to the ugly rivalry here, we have no doubt that between the contestants, the Court was misled and we must, therefore, proceed with caution.
There was no funda mental right violation or could be violative if the allega tions of the so called champions on behalf of the society are scrutinised.
We must protect the society from the so called 'protectors '.
This application is legally devoid of any merit or principles of public interest and public pro tection.
This application certainly creates bottlenecks in courts, which is an abuse of process of this Court.
We have, therefore, no hesitation in dismissing this application with the observations made herein.
G.N. Petition dis missed.

summary/full:
The Petitioner, representing a Social Organisation, has written a letter alleging environment pollution in some villages and the adjoining Sarnath Temple.
The letter was treated as Writ Petition under Article 32 of the Constitu tion of India.
It was alleged that the smoke and dust emit ted from the Chimneys of Respondent No. 3, viz., an oil Mill and a refinery plant in the area, and the effluents dis charged by the plants has been causing serious environmental pollution in the thickly populated area, leading to epidemic diseases.
It was further alleged that even the flora was badly affected by pollution.
Petitioner prayed for direc tions to check the pollution.
On behalf of Respondent No. 3, it was contended that it had complied with the provisions of Air (Prevention and Control of Pollution) Act, 1981 and the and there was no com plaint whatsoever.
It was further stated that the petitioner was an anti social element and his only aim was to blackmail and extract money from people like Respondent No. 3, and that a criminal case has already been filed against him, for such activities.
Dismissing the writ petition, HELD: 1.
Article 32 is a great and salutary safeguard for preservation of fundamental rights of the citizens.
Every citizen has a fundamental right to have the enjoyment of quality of life and living as contemplated by Article 21 of the Constitution of India.
Anything which 740 endangers or impairs by conduct of anybody either in viola tion or in derogation of laws, that quality of life and living by the people is entitled to be taken recourse of Article 32 of the Constitution.
But this can only be done by any person interested genuinely in the protection of the society on behalf of the society or community.
This weapon as a safeguard must be utilised and invoked by the Court with great deal of circumspection and caution.
Where it appears that this is only a cloak to "feed fat ancient grudge" and enemity, this should not only be refused but strongly discouraged.
While it is the duty of this Court to enforce fundamental rights, it is also the duty of this Court to ensure that this weapon under Article 32 should not be misused or permitted to be misused creating a bottleneck in the superior Court preventing other genuine violation of fundamental rights being considered by the Court.
That would be an act or a conduct which will defeat the very purpose of preservation of fundamental rights.
[743B E] Bandhu Mukti Morchay.
Union of lndia & Ors.; , , referred to.
This petition is legally devoid of any merit or principles of public interest and public protection.
There was no fundamental right violation or could be violative if the allegations of the so called champions on behalf of the society are scrutinised.
[743G] 2.2.
Prima facie the provisions of the relevant Act, namely, the Air Pollution Control Act have been complied with and there is no conduct which is attributable to re spondent No. 3 herein leading to pollution of air or ecolog ical imbalances calling for interference by this Court.
The orders passed by the Pollution Control Board also indicate that there were no instances of any violation.
There was no complaint from anybody apart from the petitioner, or any authority as to the non compliance of any statute by Re spondent No. 3.
[743A B; 742G]