Non-compliance with Section 20A(1) of TADA fatal to prosecution case, Supreme Court

The provisions of the Terrorist and Disruptive Activities (Prevention) Act concerning the requirement of sanctions before registering of information of an offence is a mandatory provision and non-compliance with it may be fatal to the prosecution, the Supreme Court held..Section 20A(1) of the TADA provides that no information regarding offence can be recorded by an official without prior permission from the Superintendent of Police. This provision co-exists with Section 154 of the Code of Criminal Procedure which provides for information to be reduced to writing..A Bench of Justices Deepak Gupta and Aniruddha Bose said that the intent of the legislature is clear from the phraseology used in the provisions of TADA..“The language of the Section is mandatory in nature. It starts with a nonobstante clause. It forbids the recording of information about the commission of offence under TADA Act by the police without prior approval of the District Superintendent of Police”.In the instant case, the appellant was apprehended by the Police in a notified area under TADA and prohibited arms were recovered from him along with two others. A First Information Report was registered against him under the Arms Act. The FIR also mentioned that a case under TADA is also made out against the accused-appellant and that provisions were being made to obtain sanctions to register the case. On the same day, Superintendent of Police granted sanction to add Section 5 of TADA..The case of the appellant was that he should be discharged from the charge under TADA given that the requirement for a prior sanction under Section 20A(1) was not complied with and that the sanctions were sought after the FIR was registered. The Respondent State, on the other hand, argued that for obtaining sanctions, some communication will have to be provided to the Superintendent of Police..The Court, while agreeing with the submission that some information will have to be given for obtaining sanctions, also delved into the wording of Section 154 of the CrPC. The Court said that Section 154 of the CrPC talks about reducing any information received into writing in a book required to be kept at any Police Station. This book is for the purpose of recording information and this recording of information under TADA is prohibited under Section 20A(1) without prior sanctions..The Court reasoned that there is no bar on sending informal communication or rukka to the Superintendent of Police to facilitate a decision on the grant of sanction. However, TADA being a special Act and the provisions being very stringent in nature, certain safeguards are provided within the Act and the non-obstante clause in the Act barring recording of information without sanction is mandatory in nature. This Section was inserted in the Act by way of an amendment in 1993 and the legislature would have considered the provision under Section 154 of the CrPC..“What is prohibited under Section 20A(1) of TADA Act is the recording of information. We can presume that the Legislature while introducing Section 20A(1) in TADA Act was also aware of the provisions of Section 154 of CrPC. Therefore, the clearcut intention was that no information of commission of an offence under TADA Act would be recorded by the police under Section 154 of CrPC without sanction of the competent authority.”.There may be occasions when an offence under TADA is an offence along with the main offence which is also a serious offence such as murder, rape or offence under POCSO. Investigation in such cases may not be delayed on account of the fact that an offence under TADA is also made out. However, the Court added, that when information reveals that TADA offence is ancillary in nature, Section 20A(1) cannot be circumvented..“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.”.The Court thus went on to discharge the appellant from offences under TADA while holding that he may be proceeded against under other provisions of law..[Read Judgment]

Non­-compliance with Section 20­A(1) of TADA fatal to prosecution case, Supreme Court

Non-compliance with Section 20A(1) of TADA fatal to prosecution case, Supreme Court