LAWS(GJH)-1990-7-7

MOHMED RAFIQ HUSSEINMIYA THAKORE Vs. STATE OF GUJARAT

Decided On July 24, 1990
MOHAMMED RAFIK HUSSEINMIYA THAKORE Appellant
V/S
STATE Respondents

JUDGEMENT

(1.) The petitioners have prayed as under : (a) That this Hon'ble Court be pleased to declare that the provisions of the [Terrorist and Disruptive Activities (Prevention)] Act are illegal, ultra vires, void and inoperative; (b) That this Hon'ble Court may be pleased to issue a Writ of Prohibition or a Writ in the nature of prohibition under Art. 226 of the Constitution of India, directing the respondents to forbear and desist from applying Sec. 3 or any other provisions of the Act in the case and to reconsider the bail application by deleting Sec. 3 of the 'TADA' Act; (c) That such other and further reliefs as may be deemed fit in the circumstances of the case may kindly be granted. At the outset, Mr. Pathan, learned Advocate appearing on behalf of the petitioners, stated that the petitioners are not pressing their first prayer that the provisions of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as 'TADA' Act) are illegal and ultra vires. He submitted that prayer (b) be granted. He submitted that the order passed by the Designated Court is violative of petitioners' fundamental rights under Art. 21 of the Constitution of India because the provisions of TADA Act are applicable to the facts alleged in the F.I.R. and in the statements of the witnesses recorded by the Investigating Officer. For substantiating his contention he has relied upon the decision of this Court in the case of Ayubkhan K. Pathan v. State, [1990(1)] 31(1) GLR 473.

(2.) As against this, Mr. Panchal, learned Public Prosecutor, vehemently submitted that as the Designated Court has exercised its jurisdiction and has arrived at the conclusion that prima facie the provisions of TADA Act are applicable to the facts of the present case, this Court should not exercise its jurisdiction under Art. 226 of the Constitution of India as : (1) There is alternative efficacious remedy available to the petitioners of approaching the Designated Court or the appellate forum as provided in the TADA Act; (2) The procedure prescribed under the TADA Act is exhaustive and it is self-contained code. He relied upon the decision of the Division of this Court in the case of Suresh Ramtirath v. State, [1900(1)] 31(1) GLR 104.

(3.) For appreciating the aforesaid contentions it would be necessary to state some facts of the present case. On 27/03/1990 three first information reports were lodged against some of the petitioners and other persons at Umreth Police Station. The petitioners were arrested in connection with Umreth Police Station C. R. No. I-53 of 1990 for the offences punishable under Secs. 147, 149, 307, 302, 504, 506(2), 295, 153, 365 of the Indian Penal Code and under Secs. 3 and 4 of the TADA Act. They preferred Criminal Miscellaneous Application No. 549 of 1990 before the Designated Judge for Kheda District at Nadiad for releasing them on bail. The Court after considering the material produced by the Investigating Officer arrived at the conclusion that criminal acts have been committed in a large group with an intention to create a terror amongst the Hindu inhabitants of village Bhalej. The repercussion of this incident had caused disturbance of peace in other cities and villages of the District and had also given cause to similar such incidents. The Designated Court, therefore, arrived at the conclusion that the act of murdering Girishbhai Chandubhai was nothing but a terrorist act as defined in Sec. 3 of the TADA Act. In this judgment it is not necessary to reproduce the details of the incident given in the First Information Report. Previously the petitioners had preferred Criminal Miscellaneous Applications Nos. 410 of 1990 and 411 of 1990 before the Designated Court. Those applications were rejected by a common order dated 11-5-1990. Thereafter the petitioners preferred Criminal Miscellaneous Application No. 549 of 1990 before the Designated Court for releasing them on bail. After discussing the judgments which were cited before him and perusing the investigation papers produced by the Investigation Officer the Designated Judge by his judgment and order dated 3/07/1990 rejected the said application. The petitioners have challenged the aforesaid order by filing this petition under Art. 226 of the Constitution of India.