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Offences under TADA – Registering an FIR without sanction of the competent authority is Fatal

EBHA ARJUN JADEJA & ORS vs. THE STATE OF GUJARAT – CRIMINAL APPEAL NO(S). 1692 OF 2009 – October 16, 2019 – Justice Deepak Gupta & Justice Aniruddha Bose.

Supreme Court on Wednesday held that the an FIR cannot be registered under section 154 of CrPc by an police officer without sanction of the competent authority when the offence was committed under Terrorist and Disruptive Activities (Prevention) Act.

Section 20A (1) of TADA act unequivocally bars recording of information under section 154 Crpc without sanction from the competent authority. The bench comprising Justice Deepak Gupta and Justice Aniruddha Bose held Non-Compliance with Section 20A(1) of TADA Act will vitiate the entire Proceedings.

Court clarified that there may be serious offences like murder, rape, offences under NDPS Act1985 and offences under Protection of children from sexual offences(POCSO) Act, 2012 etc. the police official can record the information under 154 and further clarified that failing to record the offences above mentioned will be fatal to the case. The police can record the information and arrest the person for committing an offence under Indian Penal code, 1860 and other Legislatures but the sanction should be obtained in compliance with 20A(1) before initiating the proceeding under TADA Act.

The Court affirmed that this bar will not be applicable to a rukka or a communication sent by the police official to the District Superintendent of police seeking his sanction. Otherwise, there could be no communication seeking sanction, which could not have been the purpose of TADA Act, the bench added.

The   bar   under   Section   20­A(1)   of   TADA   Act   applies   to information recorded under Section 154 of CrPC.  This bar will not apply to a  rukka  or a communication sent by the police official   to   the   District   Superintendent   of   Police   seeking   his sanction.  Otherwise, there could be no communication seeking sanction, which could not have been the purpose of TADA Act.

In the present matter, the TADA court had dismissed the discharge application filed by the Accused due to non-compliance of Condition under section 20A(1) of Terrorist and Disruptive Activities (Prevention) Act. The apex court while considering the appeal by the Accused set aside the order of the Designated TADA Court and further discharged the accused from the offences under TADA Act.

The Apex court further clarified that accused may be charged under other provisions of law, if required. Court clarified that only the proceeding under TADA Act will be discharged and proceedings under Arms Act can proceeded.

At the same time, where the information basically discloses an offence under TADA Act and the other offence is more in the nature of an ancillary offence then the information cannot be recorded without complying with the provisions of Section 20­A(1) of TADA Act.   This will have to be decided in the facts of each case.  In the case in hand, the only information recorded which constitutes an offence is the recovery of the arms.   The police officials must have known that the area is a notified area under TADA Act and, therefore, carrying such arms in a notified area is itself an offence under TADA Act.  It is true that this may be an offence   under   the   Arms   Act   also   but   the   basic   material   for constituting an offence both under the Arms Act and TADA Act is identical i.e. recovery of prohibited arms in a notified area under TADA Act.  The evidence to convict the accused for crimes under the Arms Act and TADA Act is also the same.  There are no other offences of rape, murder etc. in this case.  Therefore, as far as the present case is concerned, non­compliance of Section 20­A(1) of TADA Act is fatal and we have no other option but to discharge the   appellants   in   so   far   as   the   offence   under   TADA   Act   is concerned.  We make it clear that they can be proceeded against under the provisions of the Arms Act. download Judgment here:Download

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