TADA Offences- FIR Cannot Be Registered Without Sanction Of Competent Authority: SC [Read Judgment]

The Supreme Court has held that an FIR with respect to commission of an offence under Terrorist and Disruptive Activities (Prevention) Act cannot be recorded by the police under Section 154 CrPC without sanction of the competent authority.

The bar under Section 20-A(1) of TADA Act applies to information recorded under Section 154 of CrPC, the bench comprising Justice Deepak Gupta and Justice Aniruddha Bose held while discharging an accused. 

However, the bench clarified that 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, the bench said.

The Court also observed that when other serious offences like murder, rape etc is involved, the police official can record the information and arrest the person for committing an offence under Indian Penal Code,1860 but before proceeding under TADA Act he will have to take sanction under Section 20- A(1) of TADA Act.

In the instant case (Ebha Arjun Jadeja vs. State Of Gujarat), the designated TADA Court had dismissed the application filed by the accused seeking discharge due to noncompliance of Section 20-A(1) of the Terrorist and Disruptive Activities (Prevention) Act, 1987. The Apex court, while considering appeal,  made it clear that 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 20-A(1) of TADA Act. While allowing the appeal, the bench said:

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 20-A(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, non-compliance of Section 20-A(1) of 13 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

The court made these important observations:

Provisions of Section 20-A(1) are mandatory

The language of the Section is mandatory in nature. It starts with a non-obstante 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.
The provisions of Section 20-A(1) are mandatory. This issue is no longer res integra. In Rangku Dutta @ Ranjan Kumar Dutta v. State of Assam1 , this Court held that the provision, which was couched in negative terms is mandatory in nature.

Investigation in serious cases of murder, rape, smuggling, narcotics, POCSO Act etc. cannot be delayed only because TADA Act is also involved.

Each case is to be decided on its own facts. The police official, not being the District Superintendent of Police, may receive information of commission of an offence and may reach the scene of a crime. He can record the information on the spot and then send a rukka to the police station for recording of FIR. There may be cases of serious offences like murder, rape, offences under Narcotic Drugs and Psychotropic Substances Act, 1985, Protection of Children from Sexual Offences (POCSO) Act, 2012 etc. where any delay in investigation is fatal. In these cases, the police officer is entitled to record the information some of which may indicate an offence under TADA Act, also because non-recording of the information with regard to the main offence may delay the investigation and hamper proper investigation in the matter. In such cases, while recording the information and recording the FIR, for the offences falling under TADA Act, the police officials concerned can approach the District Superintendent of Police for sanction under Section 20-A(1) of 12 TADA Act. The investigation in serious cases of murder, rape, smuggling, narcotics, POCSO Act etc. cannot be delayed only because TADA Act is also involved.

The bench then gave an example:

"The police official finds a dead body, sees that a murder has taken place, apprehends a person, who is running away after committing the murder and from that person a prohibited arm is recovered in a notified area. In such a situation, the main offence is the offence of murder and the offence of carrying a prohibited weapon in a notified area is the secondary offence under TADA Act. Here, the police official can record the information and arrest the person for committing an offence under Indian Penal Code,1860 but before proceeding under TADA Act he will have to take sanction under Section 20¬ A(1) of TADA Act." 

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