Paragraph numbers below are the court’s original numbering, recovered from the source text.
1. Accused Md. Rashid Khan and his relatives reside at 43, B.B. Ganguly Street, Calcutta-12. He used to maintain a group of anti-socials. Local people were scared of hin1 and his men. No one dared to object or raise voice against them as all knew the consequences.
2. The said Md. Rashid Khan had his office in Premises No. 266, B.B. Ganguly Street.
3. Accused Rashid Khan, a Satta Bookie, used to run his satta business inside "Satta Galli" at Premises Nos. 266 and 267, B.B. Ganguly Street.
4. The investigation revealed that since last 5/6 years accused No. 3 Pannalal Jaysoara had been manufacturing bombs on the 1st floor of 267, B.B. Ganguly Street as and when required by Accused No. I Md. Rashid Khan, the Satta Bookie. Kalloo @ Sarafraz Khan, a henchman of Accused No. 1 picked up Accused No. 3 Pannalal Jaysoara first for preparing bombs for their group and through Accused Kalloo @ Sarafraz @ Khan. Accused No. 3 Pannalal Jaysoara was introduced with Accused No. l Md. Rashid Khan, Accused No. 2 Abdul Aziz, Accused No. 7 Lala@ Parwez Khan, Accused Zakrin and Accused No. 8/Parvez Imtiaz Khan. It also transpired that Accused Pannalal used to take cash Rs. 100/- regularly in every week either from Accused Rashid Khan or from Accused Kalloo @ Sarafraz Khan. Accused No. 3 Pannalal used to receive the said money from the office of Accused Rashid Khan at 266, B.B. Ganguly Street. This bomb manufacturing matter was supervised mainly by Accused Kalloo and Accused Lala (absconding) and sometimes by Accused lmtiaz Khan {absconding).
Accused Md. Rashid Khan, Abdul Aziz and Zakrin Khan used to visit the first floor of 267, B.B. Ganguly Street, also for the same purpose. After the communal riot in recent past between Hindus and Muslims in Bombay, Accused No. 1 Md. Rashid Khan became very worried for the Muslims because, according to him, a large number of Muslims died at Bombay and the Local Government did nothing for their community and he apprehended that such sort of communal riot might take place in Calcutta and Government may not stand by the side of Muslims like Bombay as a result many Muslims would die. As such Aceused Md. Rashid Khan · hatched a conspiracy with his henchmen viz. Accused Kalloo, Lala;' Zakrin, Khalid, Murtaza, Aziz, Guizar etc. to procure huge quantity a/explosive STATE v. MOHAMMAD KHALID (MOHAN, J.] materials for preparing large number of bombs with a view to kill the A Hindus in Calcutta by using those bombs through Muslim brothers. (Emphasis supplied)
5. Pursuant to that conspiracy Accused No. 5 was entrusted with the task of procuring explosive materials. For this, Accused No. I, Rashid Khan, paid money to Accused No. 5 Md. Khalid through Accused Kalloo. B Within a few days, Accused No. 5 Khalid, with the help of Accused Hassu procured huge quantities of explosive materials and brought those to the first floor of267, B.B. Ganguly Street, in two drums and two bags and kept the same there with the help of Accused Murtaza, Guizar, Tenia and Ukil. Again on 16.3.93 Accused Md. Khalid and Accused Hassu brought explosive materials in two bags and with Accused Guizar and Mustafa @ C Murtuja came near the Sattagali at about 20/20.30 hrs. There with the help of Accused Tenia, Ukil and Khurshid brought those bags inside the Khaskhas Godown on 1st floor of 267, B.B. Ganguly Street through Satta Gali. At that time there were some other persons present in "Satta Gali" who saw this.
Thereafter Accused Murtaza, Khalid and Hassu & Khurshid kept two drums and four bags together and place-d a plastic sheet. Accused D Khalid and Hassu opened those bags and brought out explosive materials and some small tin containers. Then Accused Tenia, Ukil, Hassu and Khurshid started mixing the explosive materials while Accused Guizar, Khalid and Murtaja started straining the materials. Accused Guizar tried to open the lid of a drum but he was asked by Accused Khalid and Accused E Murtaza not to do so. As such he did not open the lid of the drum. Soon after Accused Nisar Guizar, Khalid and Murtaza were straining those explosive materials. Accused Lala, Kalloo and lmtiaz came inside the 1st floor of 267, B.B. Ganguly Street and supervised this manufacturing process, owner of Khaskhas godown, E.M. Naushad and his men were present inside the 1st floor of the said building i.e. inside his Godown cum F residential place at that time.
At about 21.00/21.30 hours of that night, an electrician of that locality who used to sleep in the night inside the Khaskhas Godown regularly also came there but being rebuked by Accused Murtaza he left the Khaskhas Godown. Some other people who used to stay during night were also present inside the Khaskhas Godown on that night.
6. Thereafter at intervals Accused Guizar and Accused Khalid left that house for their destinations. All the street lights and lights inside Satta Gali and lights on the 1st floor of 267, B.B. Ganguly Street and its surrounding areas were burning. A few persons were present inside Satta Gali then. On the same morning, i.e., 16.3.93, Accused Kalloo with Accused lmtiaz went to the place of Accused Pannalal Jaysoara and asked him to come to their H place at Bowbazar Street for preparing bombs. At about 22.00/22.30 hours, on that day, Accused Pannalal -came to the office of Accused Md. Rashid Khan at 266, B.B. Ganguly Street. There he met Accused Aziz, Rashid, Lala and Zakrin who took him to the 'Khaskhas Godown cum Factory' located on the first floor of 267, B.B. Ganguly Street through Satta Gali where Accused Murtaza, Tenia, Nisar, Ukil, Hassu and Khurshid were found preparing bombs -and there was huge quantity of the mixture of explosive materials over a plastic sheet on the 1st floor of267, B.B Ganguly Street besides number of empty small tin containers.
7. At about 23.00/23.30 hours on 16.3.93. Accused Pannalal, after preparing a few bombs came down and went out, being followed by a witness. Accused Zakrin was found standing near the Satta Gali and Accused Md. Rashid Khan was then talking with two persons of Haberly Lane, standing on the pavement in front of 266, B.B. Ganguly Street. At that time, Accused Pannalal went to Accused Rashid Khan and told him that it would take long time, even upto the next day evening, to prepare bombs – with all such huge quantity of explosive materials and asked Accused Rashid Khan as to the necessity of preparing such large number of bombs. Accused Rashid Khan answered him in presence of those two persons as to why large number of bombs were necessary referring to recent past Bombay Riot.
8. Then Accused No. 1 Md. Rashid Khan asked Accused No. 3, Pannalal, to start the work of preparation of bombs and thereafter went towards his hotel 'Shahi Darbar'. After departure of Accused Rashid Khan Accused No. 3 Pannalal also left that place for his residence.
9. At about 23.59 hours on 16.3.93 the explosion took place resulting in death of 69 persons and 46 persons injured. Due to this explosion the houses were either collapsed or damaged. The facts also disclose that confessions were made by Accused 3, Pannalal and Accused 6, Md. Guizar under Section 164 of the Code before the Magistrate. Now, we come to the order granting sanction. The order of sanction by the Commissioner of Police is dated 11.6.1993. It inter alia says: "WHEREAS, it appears from all the reports, recorded statements of witnesses, confessional statement of accused persons viz. Panna/a/ Jaysoara and Md Guizar, the seizure lists, opinion of experts, order no. 4509-P dated I 1.6.93 from STATE v. MOHAMMAD KHALID [MOHAN, J.] the Joint Secretary to the Government of West Bengal case A diary etc. in connection with Bowbazar P.S. C/No. 84 dated 17.3.93 u/s l 20B/436/302/307/326 J.P.C. u/s 3 & 5 E.S. Act, u/s 3 and TADA Act, placed before me, that on 16.3.93 at about 23.59 hours there was an explosion due to blast of bombs and explosive materials which caused destruction of premises No. 267, B.B. Ganguly Street, Calcutta-12 and B damage to premises No. 266, 268-A, 43/3, 42/1, B.B. Ganguly Street, 1, Haberly Lane, 37, Robert Street, Calcutta – 12 etc. and death of 69 persons and injuries to large number of people." (Emphasis supplied) Thereafter, it proceeds to say that the accused: c " …… with intent to strike terror in the people and/or to strike terror on a particular section of the people and/or to alienate a particular section of people to adversely affect the harmony amongst the Hindus and Muslims were engaged in preparing and/or causing to be prepared, bombs, with explosive D substances and highly explosive materials by procuring them, which acts were likely to cause death or injuries to persons and loss of or damaged to and/or destruction of properties and thereby committed terrorist acts. (Emphasis supplied) E And WHEREAS it appears, from the aforesaid records and documents, that the aforesaid persons conspired and were preparing to commit disruptive activities. And WHEREAS, it appears after due consideration of all the F records, documents etc. mentioned earlier, that the aforesaid persons by their acts have committed offences punishable under Sections 3 and 4 of the Terrorist and Disruptive Activities (Prevention) Act, 1993. (Emphasis supplied) G Now, therefore, on careful consideration of all the facts, materials and circumstances of the case and in exercise of the powers conferred upon me by section 20A(2) of the Terrorist and Disruptive Activities (Prevention) Act, 1993, I, Sri Tushar Kanti Talukdar, Commissioner of Police, Calcutta, do H c (1994] SUPP. 6 S.C.R hereby accord sanction for prosecution under Sections 3 and 4 of the Terrorist and Disruptive Activities (Prevention) Act, 1993 of the following persons viz., (1) Md. Rashid Khan, son of Late Ramjan Khan, of 43, B.B. Ganguly Street, Calcutta- 12." On this, the Designated Court passed the following order on 14.6.63: "Received charge-sheet against the accused (I) Md. Rashid Khan, (2) Abdul Aziz C.K., (3) Pannalal Jaysoara, (4) Md. Mustafa@Murtaza, (5) Md. Khalid, (6) Md. Guizar, (7) Md. Parvez Khan @ Parvez @ Lal and (8) Imtiaz Khan under Sections 1208/436/302/307/326 l.P.C., under sections 3 and 5 E.S. Act and under Sections 3 and 4 TADA Act Ltd. P.P. Sri Sisir Ghosh prays for taking cognizance. Heard. Perused the Police papers. Cognizance taken. Accused Nos. 7 and 8 are reportedly absconding.
(Emphasis supplied) Issue warrant of arrest against the accused Parvez Khan @ Md. Parvez Khan @ Parvez @ Lala and accused Imtiaz Khan. Fix 10.7.93 for E.R. to date." The High Court in the impugned judgment criticises the order of sanction. It inter alia holds: "It has been specifically alleged that no sanction order was given by the Commissioner of Police – respondent No. 3 before the Designated Court took cognizance on 14th June, 1993. The respondent No. 3 has not affirmed an affidavit denying the said allegations made by the petitioner. The said affidavit affirmed by S.K. Sanyal also does not disclose that he was authorised to affirm the affidavit on behaif of the Commissioner of Police – respondent No. 3. There is, therefore, no specific denial by the Commissioner of Police of the averment in the writ petition that no sanction had been granted by him prior to the Designated Court taking cognizance.
It is significant that although it is alleged in the said affidavit of S.K. Sanyal that he produced the case diary including the sanction order to the Designated Court and the Designated STATE v. MOHAMMAD KHALID (MOHAN, J.) Court returned the same to him for making copies as the A Court did not have the necessary infrastructure, the same is not recorded in the proceeding before the Designa~ed Court nor there is any mention in the sanction order filed in Court and subsequently returned as appears from the record of the Designated Court." It further held: " …… Even assuming that the original had been returned to the prosecution for making copies, the said fact should have also been recorded in the Court's record. In the absence of such recording of fact question may arise whether the said C sanction order was placed before the designated court." " ……… .it will be noticed that the Police Report and this last page (which is page no. 14) is much lighter than the type impression in the proceeding I 3 pages of the said report.
(Emphasis supplied) " ……. .In my view this aspect of the matter is not so vital so as to effect the validity of the sanction order or for the purpose of taking cognizance and the Writ Court should not enter. into the aforesaid controversy." " ……. .It has, therefore, been suggested that the sanction is in E respect of non-existent offences and that it is not a sanction in respect of any offence under the TADA Act of 1987 as required by Section 20A(2) of the Act and that it is not a sanction in respect of offences under Sections 3 and 4 of the TADA Act of which cognizance was taken by the designated F Court on June 14, 1993. The sanction in the aforesaid manner according to the learned Advocate for the petitioner shows complete non-application of mind by the Commissioner of Police while making that order and according to him the order of sanction is accordingly, bad." It further proceeds to hold that the order of sanction suffers from the following infirmities." (l) No intention to kill Hindus has been mentioned. (2) Facts for taking action under Section 4 have not been set out. (1994] SUPP. 6 S.C.R (3) Threat to sovereignty and integrity has not been stated. (4) Confession cannot be taken into account for inferring the intention. (5) There is no whisper of an allegation of conspiracy. ( 6) There is no mention that ordinary machinery has broken down. c After holding so, the order of the Designated Court dated 14.6.93 is quashed on the following grounds: (1) Order taking cognizance does not show that the sanction to prosecute was considered. Reasons for taking cognizance have not been recorded. (2) The Order does not show that confessions were perused. (3) The Court while taking cognizance cannot refer to any material other than police report. (4) Intention to commit offence under' TADA cannot be inferred as the motive was to defend Muslims. The High Court, after quashing the order of sanction and taking cognizance ordered as follows: "This order, however, will not prevent the rspondent-State to take steps for making any fresh application for sanction before the Commissioner of Police on the basis of fresh materials, ifthere be any, and accordingly to apply for takll1g of cognizance before the Designated Court on the basis 'of such fresh materials if the same is permissible and if the respondent is so advised in accordance with law." . From the above analysis of the judgment, it is clear what actually the High Court has done is to appreciate the evidence at the pre-trial stage. The affidavit of Mr. Tushar Kanti Talukdar, Commissioner of Police, Calcutta, which came to be filed pursuant to the permission granted by the Court, categorically states that sanction was accorded by him. The Commissioner had gone through the voluminous records and came to the conclusion on his own. It is further stated by him as under: STATE v. MOHAMMAD KHALID [MOHAN, J.] "I state that I had examined in particular the statements of A witnesses indicating that the accused persons alongwith others conspired to create disharmony between the two major communities and over a period had systematically been collecting huge quantities of explosive substances to use them whenever needed.
In fact, on 16th March, 1993 one instalment of two big bags of explosives had arrived at the B place and were kept in the khas khas room of 267, B.B. Ganguly Street. These two bags were in addition to two big bags and two drums that had arrived earlier and stored in the same room. The statements of witnesses and confessional statements of two accused clearly indicate that the accused had no faith in the established government. The accused men C had openly declared that the Government had done nothing to protect the Muslims against the Hindus in Bombay riots and in Calcutta the Government will also do nothing to protect the Muslims. It was declared that thus it was necessary to arm the Muslims with huge quantities of bombs so that they could use those for their protection. The D statements and confessions indicate that bombs were being manufactured on that day to attain such object. One of the confessing accused, who is an expert in manufacturing bombs, had stated in his confession that he was told by Rashid Khan to prepare bombs from such huge quantities of explosive substances.
The accused in his confession also E stated that he told Rashid Khan that preparing bombs out of such huge quantities of explosives would not only take whole night of 16th March but would also need to next day till near about the evening. The materials also indicate that on that day while he left after preparing some bombs, others continued to manufacture bombs out of explosive substances F that had been collected. I was satisfied that the facts emerged did cal/for prosecution under Sections 3 and 4 of TADA. (Emphasis supplied) It should also be stated, at this stage, that the High Court had G overlooked the fact that Mr. Sujit Kumar Sanyal had sworn to the earlier affidavit as the Head of the Special Investigating Team which has also been mentioned by the Commissioner. Merely because of the failure of the Court to mention that it had perused the order of sanction while taking cognizance cannot lead to the conclusion that the existence of the order of sanction could be doubted.
The finding that there was no order of sanction is not correct factually. The affidavit of Sujit Kumar Sanyal clearly states as under: "I say that on June 14, 1993 before the learned. Designated Court had passed the order taking cognizance I had placed all the papers including the two sanctions and the statements recorded under Section 161 of the Code before the Court. I say that it was well within the competence of the learned Chief Metropolitan Magistrate to be informed that investigation under Section 3 & 4 of TADA Act was being carried on and to correct the records by adding Sections 3 & 4 of the said Act." c Again in paragraph 12, the Affidavit proceeds to state: "I further say that it was only in course of the investigation that materials indicating commisison of offences under Sections 3 and 4 of the said Act of I 987 had transpired. I further say that after the cognizance had been taken on the basis of the charge-sheet and the materials collected after investigation being the materials in the case diary which include two sanctions and the statements recorded under Section I 6 I of the Code and the documents seized and various seizure lists the learned Deisgnated Court issued warrant of arrest against the absconding accused persons." Paragraph 13 mentions as follows: "I say that the sanction under the said TADA I 993 was granted on I I June I 993 being No. I by the Commissioner of Police, Calcutta and under the Explosives Substance Act on that day being 4509-P by the Government of Wes~ Bengal. I . further say that the charge-sheet that was filed on I4.6.1993 has specifically mentioned that such sanction had already been obtained. It is categorically denied that the initiation and continuation of the said criminal proceeding against the petitioner and before the Designated Court under the TADA and said order dated June I4, 1993 is illegal. It is not necessary to mention in the order sheet that sanction was granted. It is emphatically denied that no sanction was given by the respondent Nos. 3 and 4 or that the law enjoins a duty upon the Designated Court to record by an order the fact of having received such sanction." STATE v. MOHAMMAD KHALID [MOHAN, J.] There is no justification on the part of the High Court to ignore this A affidavit because the Commissioner of Police, Calcutta had sworn to the fact that a Special Investigation Team had been set up on March 18, 1993 which was headed by Sujit Kumar Sanyal.
The order of sanction, on the face of it, shows that the sanctioning authority had perused the police papers. The High Court had to necessarily B accept these averments on their face value. The correctness or otherwise of the statement could be gone into only at the time of trial. This Court in State ofBihar and Another v. P.P. Sharma, /AS and Another, [1992] Supp. ( 1) sec 222, already referred to, held as under: "The sanction under Section 197 Cr.P.C is not an empty C formality. It is essential that the provisions therein are to be observed with complete strictness. The object of obtaining sanction is that the authority concerned should be able to consider for itself the material before the Investigation Officer, before it comes to the conclusion that the prosecution in ·the circumstances be sanctioned or forbidden. D To comply with the provisions of Section 197 it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is desirable that the facts should be referred to on the face of the sanction. Section 197 does not require the sanction to be in any particular form. If the facts constituting the offence charged are not shown on E the face of the sanction, it is open to the prosecution, if challenged, to prove before the court that those facts were placed before the sanctioning authority. It should be clear from the form of the sanction that the sanctioning authority considered the relevant material placed before it and after a F consideration of all the circumstances of the case it sanctioned the prosecution. In the present case the investigation was complete on the date of sanction and police reports had been filed before the Magistrate. The sanctioning authority has specifically G mentioned in the sanction order that the papers and the case diary were taken into consideration before granting the sanction. Case diary is a complete record of the police investigation. It contains total material in support or otherwise of the allegations. The sanctioning authority having taken the case diary into consideration before the H c grant of sanction it cannot be said that there was non- application of mind on the part of the sanctioning authority. It is nobody's case that the avennent in the sanction order to the effect that case diary was taken into consideration by the competent authority, is incorrect. We, therefore, do not agree with the finding of the High Court and set aside the same. (Emphasis supplied) Finally, we are at a loss to understand as to why and on what · reasoning the High Court assumed extraordinary jurisdiction under Article 226/227 of the Constitution of India at a stage when the Speical Judge was seized of the matter." In view of this decision, the approach of the High Court under Article 226 is clearly wrong.
It is true, as contended by Mr. Ram Jethmalani, there must be valid sanction, otherwise there is a bar to take cognizance. In Gok:ulchand Dwarkadas Morarka v. The King, AIR 35 (1948) P.C. 82 at page 84 it was observed thus: " ……. The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government have an asbolute discretion to grant or withhold their sanction. They are not, as the High Court seem to have thought, concerned merely to see that the evidence discloses a prima facie case against the peson sought to be prosecuted. They can refuse sanction on any ground which commends itself to them, for example, that on political or economic grounds they regard a proseuction as inexpedient. Looked at as a matter of substance it is plain that the Government cannot adequately discharge the obligation of deciding whether to give or withhold a sanction without a knowledge of the facts of the case. Nor, in their Lordships' view, is a sanction given without reference to the facts constituting the offence a compliance with the actual terms of cl. 23." Reliance is placed by the learned counsel on Niranjan Singh K.S.
Punjabi v. Jitendra Bhimraj Bijjaya, [1990] 4 SCC 76 at page 83 wherein at para this Court observed thus: rl STATE v. MOHAMMAD KHALID [MOHAN, J.] "Section 227, introudced for the first time in the new Code, A 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 sufficient 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 B sufficient grounds for proceeding with the trial against the accused If he will frame a charge under Section 228, if not he will discharge the accused. It must be remembered that this section was introduced 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 harrasment and C expenditure. (Emphasis supplied) Equally, reliance is placed on State of Karnataka v. L. Muniswamy and Others, [1977] 2 SCC 699. In paragraph 10, it is held as under: "It is wrong to say that at the stage of framing charges the court cannot apply its judicial mind to the consideration whether or not there is any gruond for presuming the commission of the offence by the accused.
As observed in the latter case, the order framing a charge affects person's E liberty substantially and therefore, it is the duty of the court to consider judicially whether the material warrants the framing of the charge. It cannot blindly accept the decision of the prosecution that the accused be asked to face a trial." · In our considered view, certainly. the Designated Court could do all F these at the time of framing of charges and not the High Court under Article 226, as has been done in the instant case. We are not in a position to accept the submissions of the learned counsel for the respondent that in order to find out whether a valid sanction existed, the High Court had appreciated the findings. Equally, much cannot be said of the fact that the order of sanction mentions 'sanction for prosecution'. Since it is stated 'sanction for prosecution under Sections 3 and 4 of TADA Act' it means only sanction to proceed under Sections 3 and 4 of TADA Act. The ruling of Ram Kumar v. State of Haryana, [1987] 2 sec 476 dealt with-the different situation as to H so [1994) SUPP. 6 S.C.R the scope of sanction under Sections 132 and 197 of the Code. In the case of a public servant, both the sanctions were l_!ecessary. That judgment has no application to the present case. , 1 •. l 10,… Having regard to the various acts of express~d ,conspiracy, it has to be "and/or". It .is only during the trial the prosecutiO'ri' ·lias to prove the part played by each of the accused. c In Alvin Krulewitch v. United States of America, 93 Law Ed. 790, at page 799, it was held thus: "When the trial starts, the accused feels the full impact of the conspiracy strategy: Strictly, the prosecution should firsi establish prima · facie the conspiracy and identify the conspifators, after which evidence of acts and declarations of eac.h :in the course of its execution are admissible against all.
But the order·of proof of so sprawling a charge is difficult for a judge to control. As a practical matter, the accused often is confronted with a hodgepodge of acts and statements brothers which be may never have authorized or intended or even known about, but which help to persuade the jury of existence of the conspiracy itself. In other weirds, a conspiracy often is proved by evidence that is admissible . only upon assumption that conspiracy existed." (Emphasis supplied) Hence, proving of conspiracy against each accused would arise only at 'the stage of the trial which is yet to commence it) the instant case. · In Walli Mohammad v~. The ~ing, AIR (1949) PC 103, it is held as under: "The statements of each prisoner are evidence against himself only and are inadmissible against his fellow accused. Consequently, the only safe method of testing the strength of the case for. the prosecution is to iake each man's case . separately, neglect the evidence of the other and ask whether the conflicting and inconsistent nature of the matters alleged and persons implicated combined with the admission that the· accused man was himself present is enough to justify a verdict agaisnt him.
It may be possible that each is sherltering a third person and even if it be possible that one of the two l _,. STATE v. MOHAMMAD KHALID [MOHAN, J.) accused is guilty, there must be circumstances from which A could be deduced which of the two is the guilty one. Though proof of motive is not essential, it is a material consideration. But it is not legitimate to speculate as ·to possible but unproved. motives. The difficulty in all cases where two persons are accuseq of a B crime and where the evidence against one is ina~issible . against the other is that however carefully assessors or a jury · · are directed and however firmly a Judge may steel his mind against being influenced against one by the . evidence admissible only against the other, nevertheless the mind may inadvertently be affected by the disclosures made by one of c the accused to the deteriment of the other." · Neither of these rulings would apply because the question of leading evidence by the prosecution in relation to conspiracy; as stated. above, woul~ arise only during the stage of trial · ·. which. is yet to commence in the instarit case. . As to . the fact of conscpiracy, the charge-sheet clearly · mentions the·.· same. Therefore,. factually; this finding . is wrong. We are not in a position to accept the argument of the learned counsel for the respondent that if the bombs are for self-defence, there is no mens rea and therefore, no offence E under TADA. The finding of the High Court on this aspect is asunder: "It may be noted that if according to the police report itself the reason or intention behind preparing and ·storing· bombs was to defend the muslim community in the event or riot F taking place by possible attack ·by Hindus because the 'Government would not take action as was done in Bombay, it ·cannot possibly be inferred or said that the accused intended to strike terror or that he had any other intent specified under the TADA Act.
It has, however, been submitted by Mr. Roy in the course of his argument th~t there are statements of G witnesses to the effect that the people of the locality were 'scared' of the accused, implying that they were con.sidered as dangerous persons. It has been submitted further that assuming the fact to be true, from this fact it does not follow that the accused entered into a conspiracy to prepare and H c ·o store bombs with any of the intents specified in Section 3(1) viz. to strike terror amongst the people or a section of the people. It must also be remembered that mens rea is an essential ingredient of an offence.,, The least we can say is that this finding is shocking. We may usefully refer to Ajay Aggarwa/'s case (supra). At pages 617- 618 it is stated: "It is not necessary that each conspirator must know all the details of the scheme nof be a participant at every stage. It is necessary that they should agree for design or object of the conspiracy. Conspiracy is conceived as having three elements: (l) agreement (2) between two or more persons by whom the agreement is effected; and (3) a criminal object, which may be either the ultimate aim of the agreement, or may constitute the.means, or one of the means.by which that aim is to be accomplished. It is immaterial whether this is · found in the ultimate objects. The common law definition of 'criminal conspiracy' was stated first by Lord Deriman in Jones case that an indictment or conspiracy must "charge a ·conspiracy to do an unlawful act by unlawful means" and was elaborated by Willies, J. on behalf of the judges while referring the. question to the House of Lords in Mucahy v. Reg and House of Lords in unanimous decision reiterated in Quinn v. Leathern." "conspiracy consists not merely in the intention of two or more, but in the agreement of two or more, to do'an unlawful act, or to do a lawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to .. carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful; and punishable if for a criminal object, or for the use of criminal means." This Court in E.O.
Barsay v. State of Bombay held: "The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed ~o be done has not STATE v. MOHAMMAD KHALID [MOHAN, J.) been done. So too, it is an ingredient of the offence that all A the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. Under Section 43 of the Indian Penal Code, an act would be illegal if it is prohibited by law." In Yash Pal Mitta/ v. State of Punjab the rule was laid as follows: (SCC B P. 543, para 9) " ….. The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co-participators in the main object of the conspiracy. C There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there D may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences may . be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be E and purported to be in furtherance of the object of the ·conspiracy even though there may be sometimes misfrre or over-shooting by some of the conspirators." In Mohammad Usman Mohammad Hussain Maniyar v. State of Maharashtra it was held that for an offence under Section 120-B IPC, the F prosecution need not necessarily prove that the conspirators expressly agreed to do or cause to be done the illegal act, the agreement may be proved by necessary implication." The very preparation of bombs and possession of bombs would tantamount to terrorising the people. If proved, it will be a terrorist act and G sub-sections (1) and (3) of Section 3 of the Act may also be attracted. The existence of 26 live bombs is a clear indication of conspiracy. As regards the non-mention of threat to sovereignty and integrity in sanction order, we think there is a misunderstanding. This Court in Kartar Singh v. State of Punjab, JT 1994 (2) SC 423 at page 454 determined the H legislative competence of the Parliament to enact this law. What is relied on by the learned counsel for the respondents is paragraph 72 of the said judgment.. That states as follows: "Jbe terrorism, the.
Act (TADA) contemplates, cannot be classified as mere disturbance of 'Public Order' disturbing · B the "even tempo of the life community of any specified locality" in the words of Hidayatulla, CJ in Arun Ghosh v. State of West Bengal, [1970] 3 SCR 288 but it is much more, · rather a grave emergent situation created either by external forces partiCularly .at the frontiers of this country or by anti- nationals throwing a challenge to the very existence and sovereignty of the country in its democratic policy." Again, in Hitendra Vishnu Thakur and Others v. State of Maharashtra and Others, [1994] 4 SCC 602, it is stated in paragraph 7 as under: "Terrorism is one of· the manifestations of increased lawlessness and cult ·of violence. Violence and crime constitute a threat to an established order and are a revolt against a civi~ised society. 'Terrorism' has not been defined under TADA nor is it possible to give a precise definition of 'terrorism' or lay down what constihites 'terrorism'.
It may be possible to describe it as use of violence when its most important result is not merely the physicc:tl and mental . damage of the victim but the prolonged psychological effect it produc.es or has the potential. of producing on the society as a whole.· There may be death, .injury, or destruction of property or even deprivation of individual liberty in the process but the extent and reach of the intended terrorist activity travels beyond the effect of an ordinary ~rime capable of being punished under the ordinary penal law of the land and its main objective is to overawe the Government or disturb harmony of the society or 'terrorise' people and the society and not only those directly assaulted, with a view to . disturb even tempo, peace and· tranquility of the society · and create a sense of fear and insecurity." ·Again, in paragraph 14, this Court went on to hold: "Therefore, it is the obligation of the investigation agency to · satisfy the.
Designated .Court frointhe material collected by it STATE v. MOHAMMAD KHALID [MOHAN, J.] during the investigation, and not merely by the opinion A fonned by the investigating agency, that the activity of the 'terrorist' falls strictly within tpe parameters of the provisions of TADA before seeking to /charge-sheet an accused under TADA. The Designated Coj.irt must record its satisfaction about the existence of a prima facie case on the basis of the material on the record before\it proceeds to frame a charge- sheet against an accused for off~nces covered by TADA". Without proceeding further, all that we can say, in this case, is that the materials are enough to bring the case under Section 3(1) of the Act. Of course, in order to establish this, evidence will have to be led in during the trial. Therefore, we restrain from making any further observation which C may tend to prejudice the parties. If that be so, the question of.mentioning in the sanction order that the ordinary law has broken down, does not arise. Coming to taking cognizance; it has been held by the High Court that it is not a reasoned order. We are of the view that Ute approach of the High Court in this regard is clearly against the decision of this Court in S°rree D Atyachar Virodhi Parishad's case (supra) in paragraph 14 as under: "It is in the trial, the guilt or the innocence of the accused will be detennined and not at the time of framing of charge.
The court, therefore, need not undertake an elaborate enquiry in shifting and. weighing the material. Nor is it necessary to E delve deep into various aspects. ·All that the court has to consider is whether the evidentiary material on record if generally accepted, would reasonably connect the accused with the crime. No more need be enquired into." Again, in Niranjan Singh K.S. Punjabi's case (supra), it is stated at F page 85 as under: "Again in Supdt. & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja, 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 otherwise, 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 founded upon materials before the Magistrate, which leads him to form a presumptive opinion H [1994) SUPP. 6 S.C.R 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. " (Emphasis supplied) the confessional statements of the two accused were very much there before the Court.
There is no reason to believe that the Court had not looked at the same. The other finding that what can be looked at is only the police report, cannot be s1,1stained. In Satya Narain Musadi and Others v. State of Bihar, c [ 1980] 3 sec 152 at pages 157-158, it was held as under: " ……. The report as envisaged by Section .173(2) has to .be accompanied as· required by sub-section (5) by 'an the documents and statements of the witnesses therein mentioned .. One cannot divorce the details which the report must c.ontain as required by sub-section (5) from its accompaniments which are required to be subipitted under sub-section (5). The whole of its is submitted as a report to the Court. But even if a narrow construction is adopted that the police report can only be what is prescribed in Section 173(2) there would be sufficient compliance if what is required to be mentioned by the statute has been set down in the report. Jo say that all the details of the offence must be set out.in the report under Section 173(2) submitted ~y the police officer would be expecting him to do something more than what the Parliament has expected him to set out therein. If the report with sufficient particularity and clarity specifies . the contravention of the law which is the alleged offence, it would be sufficient compliance \.;ith Section 1 L The details which would be necessary to be proved to bring him the guilt to the accused would emerge at a later stage, when after notice to the accused a charge is framed against him and further in the course of the trial. The ruling Uma Charan v. State of Madhya Pradesh and Another, [1982] 1 SCR 353, cited by Mr. Dipankar Ghosh, has no application to the facts of this case because Regulation 5 (5) of the Indian Public Service (Appointment. by Promotion) Regulations, 1955, in that ·case, required reasons to be recorded. STATE v. MOHAMMAD KHALID [MOHAN, J.] That is not the position here. Hence, that is clearly distinguishable. The A High Court has found in the impugned judgment as follows: "The acts which the accused persons did is the act of preparation and storage of bombs, which are undoubtedly made of explosive substances.
From these acts of preparation and storage of bombs, it cannot be inferred that the accused B intended to kill the Hindus or strike terror amongst the people or a section of the people, alienate a section of the people or adversely affect the harmony among different sections of the people. Such an intent cannot be inferred from the mere preparation and storage of bombs. It may be noted in this connection that police report does not disclose that the C accused persons caused the explosion. As a consequence of the explosion which occurred on March 16, 1993 a large number of persons who were killed were Muslims and not Hindus and even from the consequences of the explosion with which the accused have not been charged, it cannot be D inferred that accused who are alleged to have been responsible for the preparation and storage of the bombs, intended to kill Hindus, or strike terror amongst a section of people or that they had any of the intents specified in Section 3(1) of the Act." We are clearly of the opinion that this is a perverse reasoning. On intention and motive, we only need to refer to Corpus Juris Secundum (A Contemporary Statement of American Law, Volume 22. It is held at page 116 (Criminal Law) as under: "Intention a. In general b. Specific or general intent crimes a. In General As actual intent to commit the particular crime toward which the act moves is a necessary element of an attempt to commit a crime.
Although the intent must be one in fact, not merely in law, and may not be inferred from the overt act alone, it may be inferred from the circumstances." As regards motive in American Jurisprudence, Second Edition, c Volume 21, in Section 133, it is stated as under: "S. 133 Motive In criminal law motive may be defined as that which leads or tempts the mind to indulge in a criminal act or as the moving power which impels to action for a definite result." Tested in the light of the above, suffice it to hold the preparation and storage of bombs, as pointed out above, are per se illegal acts. The intention that it was to defend the Muslims, i,s totally unwarranted. "Bomb is not a toy or top to play with". The further question is, when does the so-called right of self-defence arise? The High Court should have assumed that each of the allegations made in the charge-sheet to be factually correct and should have examined the ingredients of the offence. As rightly contended by Mr. U.R. Lalit, learned senior counsel, the charge-sheet cannot be considered in a restricted way. On a careful perusal of the judgment we are left with the impression that the High Court had indulged in a laboured exercise, without limiting itself to the proper jurisdiction under Article 226 of the Constitution of India, in matters of this kind. We do not want to elaborate on the motive to prepare bombs and the intention thereto since the trial is yet to commence. For all the above reasons we have absolutely no hesitation in holding that the High Court has clearly exceeded its powers under Article 226 of the Constitution in quashing the orders of sancti1;>n and taking of cognizance. Therefore, we set aside the impugned judgment of the High Court and direct the Designated Court to proceed with the case in accordance with the Jaw with utmost expedition. In the result, the criminal appeals are allowed accordingly. A.G. Appeals allowed. If°'.