HITENDRA VISHNU THAKUR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) In this batch of criminal appeals and special leave petitions (criminal) the three meaningful questions which require our consideration are:(1) when can the provisions of Section 3(1) of the Terrorist and Disruptive Activities Act, 1987, (hereinafter referred to as the TADA) be attracted (2) Is the 1993 Amendment, amending Section 167(2) of the Code of Criminal Procedure by modifying Section 20(4)(b) and adding a new provision as 20(4)(bb), applicable to the pending cases i.e. is it retrospective in operation and (3) what is the true ambit and scope of Section 20(4) and Section 20(8) of TADA in the matter of grant of bail to an accused brought before the Designated Court and the factors which the Designated Court has to keep in view while dealing with an application for grant of Bail under Section 20(4) and for grant of extension of time to the prosecution for further investigation under clause (bb) of Section 20(4) and incidentally whether the conditions contained in Section 20(8) TADA control the grant of bail under Section 20(4) of the Act also We shall take up for consideration these questions in seriatim.

(2.) When can the provisions of Section 3(1) of TADA be attracted

(3.) Learned counsel for the appellants submitted that even though the constitutional validity of Section 3 of TADA has been upheld by a Constitution Bench of this Court in Kartar Singh v. The State of Punjab, JT l994 (2) SC 423:1994 (1) Apex Decisions SC (Criminal) 413 , nonetheless keeping in view the stringent nature of the provisions of TADA the offence constituted by Section 3 of TADA must be the one which qualifies stricto senso as a "terrorist act" and unless the crime alleged against an accused can be classified as a "terrorist act" in letter and in spirit. Section 3(1) of TADA has no application and an accused shall have to be tried under the ordinary penal law and in such a fact situation, it is a statutory obligation cast on the Designated Court to transfer the case from that Court for its trial by the regular Courts under the ordinary criminal law in view of the provisions of Section 18 of TADA. It is submitted that the Designated Court should not, without proper application of mind, charge-sheet or convict an accused under Section 3 of TADA simply because the investigating officer, decides to include that Section while filing the challan and that it is not open to the State to apply TADA to the ordinary problems arising out of disturbance of law and order or even to situations arising out of the disturbance of public order - a more serious type of crime alone would justify trial under TADA.