Terrorists and Disruptive Activities (Prevention) Act, 1987-Section 3(1) read with Section 2(1)(h).

C Terrorism within the meaning of Sub-section (1) of Section 3 read with Clause (h) of Sub-section (1) of Section 2 of TADA means use of violence resulting not merely in physical and mental damage to the victim but also the prolonged psychological effect it produces or has potentiality to produce on the Society as a whole.

D Terrorists and. Disruptive Activities (Prevention) Act, 1987-Section 20(4).

Code of Criminal Procedure, 1973-

Section 167 (as amended by Amendment Act No. 43 of 1993), Section 167 of the Code read with Section 20(4) of TADA is not a provision for grant of bail but deals with maximum period during which an accused may be kept in custody and detention to enable the investigating agency to complete the investigation and file the charge-sheet, if any, in the Court.

F Terrorists and Disruptive Activities (Prevention) Act, 1987: Section 18:

If the designated court finds that the offence does not even prima facie fall under TADA, it must not proceed and must transfer the case to regular court under Section 18 of TADA.

Terrorists and Disruptive Activities (Prevention) Act, 1987-Sub-section 20(4)(bb)-Sections 167 read with Secs. 173-Code of Criminal Procedure, 1973.

If the police fails to complete the investigation and put up a challan against the accused in accordance with law under Section 173 Cr.P.C., an indefeasible right to be enlarged on bail accrues to the accused after the expiry of the maximum period during which an accused can be kept in custody-The A Court is obliged in such a case, to decline the police request for further remand except in cases governed by Clauses (bb) of Sub-section (4) of Section 20.

Terrorists and Disruptive Activities (Prevention) Act, 1987: Section 20(4) and Section 20(8):

The grounds on which bail may be denied under Sub-section(8) of Section 20 of TADA are irrelevant for the consideration of the prayer of release on bail on account of the default of the prosecution under Sub-section (4) of Section 20 of TADA.

Terrorists and Disruptive Activities (Prevention) Act, 1987: Section 20-A(2).

At the stage of sanction for prosecution for an offence under TADA only the prima facie case should be established to show that the authority competent to grant sanction had applied its mind to the facts of the case before sanction was accorded.

On 09.10.89 one D was shot dead at 10.30 A.M. at a Railway Station in the presence of his brother-in-law, the eye-witness. The F.I.R. was lodged by the deceased's brother. During the investigation, two other accused were arrested and charge-sheeted. Trial is pending in the Sessions Court. In February, 1992, the D.L.G. of Police concerned during inspection found that the case had not been investigated properly. He obtained a complaint from the deceased's wife and ordered re-investigation. Permission of the Sessions Court was also obtained under Section 173(8) of Cr.P.C. More F accused were arrested and remanded to judicial custody. The petitioner and two others read a news item indicating that they were likely to be arrested in connection with the case. They approached the High Court for anticipatory bail. After notice to the public prosecutor (P.P.), the High Court granted interim anticipatory bail. The prosecution filed an application in the High Court stating that since in the instant case provisions of TADA were applicable, the accused could not be admitted to anticipatory bail because of the exclusion of the provisions of Section 438 of Cr.P.C. in respect of offences under TADA. The High Court dismissed the anticipatory bail application, but kept effective the order of interim anticipatory bail for a period of one week to enable the applicants to take  recourse to further proceedings.

Writ Petition was filed by the petitioner for a declaration that TADA was not applicable to the facts of the case. The Writ Petition was dismissed with the observation that the designated Court under TADA may go into the question of the applicability of TADA. Special Leave Petition against the order of the High Court was dismissed by this Court. Petitioner surrendered before the police and was later on remanded to judicial custody. Application for bail was dismissed by the designated court. The application urging that the provisions of TADA were not applicable was also dismissed.

B

C

The Parliament enacted Amendment Act No. 43/93 which came into force on 22nd May, 1993. Section 20(4) (b) was, inter alia, amended by which the time for filing the charge-sheet was reduced from one year to 180 days. A new clause (bb) providing for grant of extention of time for completion of investigation and filing of challan on report of the P.P. subject to a D maximum period of one year was introduced. The petitioner filed an application for bail on the ground that 180 days had expired on 04.05.93 without any charge-sheet/challan having been filed. On 12.07.93, also ex- tention of time to complete the investigation was filed and an application seeking the P.P. opposed the bail application. Bail application was dis- missed and the extension of time granted till 30th August, 1993 to file the challan/charge- sheet, treating the application of the investigation officer (IO) as a report of the public prosecutor. E

Appeal was filed from the judgment and order dated 31.07.93 of the designated court before the Supreme Court.

The following questions arose for consideration:

1. When can the provisions of Section 3(1) of the Terrorist and Disruptive Activities Act, 1987. (hereinafter referred to as the TADA) be attracted?

2. Is the 1993 Amendment amending Section 167(2) of the Code of Criminal Procedure by modifying Section 20(4)(b) and adding a new provision as 20(4) (bb), applicable to the pending cases ie. is retrospective in operation?

3. What is the true ambit and scope of Section 20(4) and Section 20(8) of TADA in the matter of grant of bail to an accused brought before A the Designated Court and the factors which the Designated Court has to keep in view while dealing with an application for grant of Bail under Section 20(4) and for grant of extension of time to the prosecution for further investigation under clause (bb) of Section 20(4) and incidently whether the conditions contained in Section 20(8) control the grant of bail B under Section 20(4) of the Act also?

It was submitted for the appellants that despite the constitutional validity of Section 3 of TADA being upheld by the Constitution Bench of this Court in Kartar Singh v. The State of Punjab, keeping in view the stringent nature of the provisions of TADA the offence constituted by Section 3 of TADA must be the one which qualifies stricto-senso as a "terrorist act" and unless the crime alleged against an accused can be classified as a 'terrorist act" in letter and in spirit, Section 3(1) of TADA has no application and an accused shall have to be tried under the ordinary penal law and in such a fact situation, it is a statutory obligation cast on the Designated Court to transfer the case from that court for its D trial by the regular courts under the ordinary criminal law in view of the provisions of Section 18 of TADA. It is submitted that the Designated Court should not, without proper application of mind, charge sheet or convict an accused under Section 3 of TADA simply because the investigat- ing officer, decides to include that section while filing the challan and that E It is not open to the State to apply TADA to the ordinary problems arising out of disturbance of law and order or even to situations arising out of the disturbance of public order a more serious type of crime alone would Justify trial under TADA.

On the other hand it was contended for the respondents that since the constitutional validity of Section 3 of TADA has been upheld by a Constitution Bench in Kartar Singh's case it is not permissible to re-ex- amine its validity on the basis of some argument which might have been raised before the Constitution Bench but was not so raised

Dismissing the appeals, this Court