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The victims,it appears from the record,belong to the Wadar community FAC |
The Designated Court after considering the evidence of the first incident and the manner of assault on the deceased and PW-9 and PW-14,came to the conclusion that the appellants,alongwith some others had intended to create terror in a section of the people (Wadar community) and with that intention had assaulted PW-14,t... |
In our opinion the Designated Court fell in error in holding that an offence under Section 3 of TADA had been committed by the accused-appellants in the established facts and circumstances of this case Ratio |
Merely because the deceased and the two injured witnesses belong to Wadar community,no inference could be drawn that the attack by the appellants on them was intended to strike terror in a section of the society,namely,the Wadar community Ratio |
There is no basis for such an assumption Ratio |
Prosecution has led no evidence in that behalf either Ratio |
It appears to be a mere coincidence that PW9,PW14 and the deceased all belong to the "Wadar Community".There is nothing on the record to disclose as to which community do the appellants belong to or what grievance they had against the "Wadar Community".By no stretch of imagination Ratio |
can it be said that the accused had the intention to strike terror,much less in a particular section of the society,when they entered into an altercation at the video parlour or even when they went after the complainant party and opened an assault on then opposite Jagdamba hotel or at the Math Ratio |
None out of those who were present at the video parlour received any injury and there is no material on the record to show as to which community did they belong to either Ratio |
Prosecution has led no evidence nor brought any circumstances on the record from which any inference may be drawn that the appellants intended to strike terror amongst the "Wadar Community".It was not proper for the Designated Court to draw an inference of intention from the mere consequence,i.e.,the victims belonging ... |
The learned trial court appears to have ignored to take into consideration the essential requirements for establishing an offence under Section 3 of TADA Ratio |
In Hitendra Vishnu Thakur And Others Vs PRE |
State of Maharashtra PRE |
And Others [(1994) 4 SCC,602 PRE |
1994 Indlaw SC 1706 this Court opined that the criminal activity in order to invoke TADA must be committed with the requisite intention as contemplated by Section 3(1) of the Act by use of such weapons as have been enumerated therein and which cause or are likely to result in the commission of offences as mentioned in ... |
It was observed : "Thus,keeping in view the settled position that the provisions of Section 3 of TADA have been held to be Constitutionally valid in Kartar Singh case and from the law laid down by this Court in Usmanbhai and Niranjan cases,it follows that an activity which is sought to be punished under Section 3(1) of... |
Thus,unless the Act complained of falls strictly within the letter and spirit of Section 3(1) of TADA and is committed with the intention as envisaged by that section by means of the weapons etc.as are enumerated therein with the motive as postulated thereby,an accused cannot be tried or convicted for an offence under ... |
Likewise,if it is only as a consequence of the criminal act that fear,terror or/and panic is caused but the intention of committing the particular crime cannot be said to be the one strictly envisaged by Section 3(1),it would be impermissible to try or convict and punish an accused under TADA.The commission of the crim... |
Emphasis supplied RLC |
Thus,keeping in view the background in which the occurrence took place,namely,the altercation at the video parlour,which has a great relevance to determine the applicability of Section 3 TADA,we are of the opinion that the finding of the Designated Court that the appellants have committed an offence punishable under Se... |
In fairness to the learned counsel for the State Mr RLC |
Madhav Reddy,Sr.advocate,we must also record that he conceded that in the facts and circumstances of the case and keeping in view the law laid down by the Constitution Bench in Kartar Singh's case [1994 RLC |
supp) Scale 1 1994 Indlaw SC 525 ] and Hitendra Vishnu Thakur's case 1994 Indlaw SC 1706 (supra) no offence under Section 3 of TADA could be said to have been committed by the appellants RLC |
The conviction and sentence of the appellants for the offence under Section 3 TADA cannot therefore,be sustained and is hereby set aside RLC |
Appellants No.1 (A-5),2 (A-8),3 (A-9) and Ratio |
5 (A-11) had alongwith the deceased accused A-1 and some others,about whose identity there has been some doubt,formed an unlawful assembly and in furtherance of the common object of that assembly committed the murder of Popat deceased besides causing injuries to PW9 and PW14 Ratio |
The Designated Court therefore,rightly found the said appellants guilty of the offences under Section 302/149,307/149 and Section 324/149 STA |
IPC.The conviction and sentence of appellants No.1 (A-5),2 (A-8),3 (A-9) and 5 (A-11) for the said offences,as recorded by the learned Designated Court,are well merited,and calls for no interference STA |
In the result,the appeal succeeds insofar as A-10 (appellant No.4) is concerned Ratio |
He is given the benefit of doubt and acquitted of all the charges against him Ratio |
He shall be released from custody forthwith if not required in any other case Ratio |
The conviction and sentence of appellants No.1,2,3 and 5 for the offence under Section 3 TADA is also set aside but their conviction and sentence for the other offences as recorded by the Designated Court is upheld and to that extent their appeals fail Ratio |
Before we part with the judgment,we would also like to deal with a submission made on behalf of the appellants by their learned counsel that since the offence under Section 3 of TADA is not made out,the criminal appeal filed in this court,may be transferred to the High Court for its disposal in exercise of our jurisdic... |
Learned counsel submitted that the appellants should not be denied the opportunity to get the first hearing in the High Court because in the event of their failure in the High Court,they still have a chance to approach this Court under Article 136 of the Constitution of India ARG |
The argument is fallacious and runs in the teeth of the express provisions of Section 19 of TADA STA |
Section 19 (1) and (2) of TADA read as follows STA |
19.Appeal - (1) Notwithstanding anything contained in the Code,an appeal shall lie as a matter of right from any judgment,sentence or order,not being an interlocutory order,of a Designated Court to the Supreme Court both on facts and on law STA |
2) Except as aforesaid,no appeal or revision shall lie to any court from any judgment,sentence or order including an interlocutory order of a Designated Court STA |
A bare perusal of the above Section shows that an appeal against the judgment,sentence or order,of the Designated Court (except an interlocutory order) shall lie on facts and on law to the Supreme Court and that no appeal or revision shall lie to any other court Ratio |
In the face of this express provision,there is no scope to urge that the appeal may be transferred to the High Court because of the acquittal of the appellants for the offence punishable under Section 3 TADA by us Ratio |
In a case where the Designated Court finds that no offence under TADA is made out,it is open to the said Court to transfer the case to the regular Criminal Court under Section 18 TADA but once the charge is framed and the case is tried by the Designated Court,an appeal against conviction,sentence or acquittal lies only... |
Under Section 12 of TADA the Designated Court has the jurisdiction not only to try the cases under TADA but also to try offences under the Indian Penal Code if the offence under TADA is connected with such other offences Ratio |
The amplitude of powers available to this Court under Article 142 of the Constitution of India is normally speaking not conditioned by any statutory provision but it cannot be lost sight of that this Court exercises jurisdiction under Article 142 of the Constitution with a view to do justice between the parties but not... |
The transfer of the appeal to the High Court,after hearing the appeal on merits and finding that Section 3 of TADA on the basis of the evidence led by the prosecution,was not made out,is neither desirable nor proper nor permissible let alone justified Ratio |
There cannot be piece meal hearing of an appeal on merits -first by this Court to determine if an offence under TADA is made out or not and then by the High Court Ratio |
The submission of the learned counsel is,thus,devoid of merits and is consequently rejected RPC |
These three appeals by special leave are directed against one and the same judgment dated 25.09.l992 of the Division Bench of Calcutta High Court FAC |
The three appellants are the State of West Bengal in appeal arising out of SLP (C) No.401 of 1993,the State Fishery Development Corporation Ltd.in appeal arising out of SLP (C) No.13516 of 1992 and Bansilal Farms in appeal arising out of SLP (C) No.13314 of 1992 FAC |
The respondents are the members of one Sarkar family in the city of Calcutta FAC |
The dispute centres around a fishery called Nalban Fishery FAC |
A suit for partition was filed by one of the Co-sharers of said Sarkar family in the High Court of Calcutta on 3.9.1955,which was registered as Suit No.2539 of 1955.The schedule of properties included the disputed Nalban Fishery FAC |
A learned Single Judge of the Calcutta High Court passed a preliminary decree in the said suit on 11.8.1960.One of the Co-sharers of the Sarkar family preferred an appeal against the preliminary decree before the Division Bench which was registered as Appeal No,200 of 1960.During the pendency of the aforesaid appeal th... |
Bengal requisitioned large extent of fisheries including the disputed Nalban Fishery on 5.11.1969 in exercise of power under Section 3(1) of the West Bengal Land Requisition and Acquisition Act of 1948 (hereinafter referred to as 'the Requisition Act').Pursuant to the aforesaid requisition order the State of West Benga... |
The appeal to the Division Bench was preferred against the aforesaid order of dismissal which was registered as F.M.A.No.126 of 1970.The Division Bench dismissed the appeal by its order dated 5.7.1971.Sarkar family moved this Court in SLP (C FAC |
No.1452 of 1972.By order dated 17.11.1972 FAC |
this Court dismissed the special leave petition FAC |
The appeal arising out of the petition suit bearing Suit No.2539 of 1955 which had been registered as appeal No.200 of 1960 was finally disposed of by the Division Bench and the said order was assailed in this Court in SLP (C) Nos.5370 & 5371 of 1978.The said two appeals arising out of the said two special leave petiti... |
This Court further ordered: "we again wish to re-emphasize that the terms of the decree shall not effect the rights of the State of West Bengal,in any manner whatsoever to the fisheries in question,if they have vested in State under the provisions of the West Bengal Estate Acquisition Act of 1953 (Act X of 1954 RLC |
Prior to the passing of the aforesaid order on April 18,1979 while granting special leave petition on 10.11.1978 this Court had directed that the State of West Bengal will be made a party to the proceeding and further the Collector Parganas was appointed as Receiver in respect of the fisheries owned by the Sarkar famil... |
The Court had also further directed that the Collector will be the Receiver in respect of the fisheries which has not already been vested in the State and whose Possession has not already been taken over by the State FAC |
Pursuant to the aforesaid order appointing Collector 24 Parganas as Receiver FAC |
the Collector 24 Parganas took possession of the fisheries including Nalban Fishery as Receiver and submitted a compliance report dated 22.11.1978 to the Registrar of this Court FAC |
It may be noted that Nalban Fishery had been requisitioned by the State of West Bengal under the provisions of Requisition Act since 5.11.1969 and possession thereof had been taken on 8.11.1969 and the Sarkar family had challenged the said order unsuccessfully which final by the dismissal of the special leave petition ... |
Bengal was in fact in possession of the said fishery FAC |
The Receiver,therefore,intimated to the Registrar of this Court the mistake committed by him in his earlier report and after taking advice from the Senior Counsel expressed apology to this Court for the mistake committed in the earlier report While the matter stood thus in relation to the aforesaid Nalban Fishery,the G... |
The aforesaid Corporation issued an advertisement for auctioning the Nalban Fishery for a Boating Complex FAC |
The Sarkar family thereupon filed an application before the Calcutta High Court contending inter alia that under the decree passed in the partition suit by the Supreme Court the property belongs to the Sarkar family and could not have been handed-over to the State of West Bengal,That application was disposed of by the ... |
This order of the learned Single Judge was challenged in appeal before the Division Bench and the Division Bench having dismissed the same,the present appeals have been preferred FAC |
It may be noticed at this stage that Bansilal Farms,appellant in appeal arising out of SLP (C) No.13314 of 1992 was the highest offerer for running the Boating Complex on the surface water of Nalban Fishery and had been granted licence for that purpose and in fact had started the operation of the Boating Complex since ... |
Dhira Mitra one of the Co-sharers of the Sarkar family,the High Court having issued an order of injunction,the farm is no longer operating FAC |
Mr ARG |
Harish Salve,the learned Senior Counsel for the State of West Bengal ARG |
S.S.Ray,the learned Senior Counsel appearing for Bansilal Farms and Mr ARG |
G.Ramaswamy,the learned Senior Counsel appearing for the State Fishery Development Corporation Ltd.contended that a compromise decree between the parties in a suit for partition will not in army way affect the rights of the State in respect of the fisheries whether such rights the State acquires by virtue of an order o... |
It was further contended that this Court while giving affect to the compromise arrived at between the Sarkar family made it explicitely clear that the said compromise will not in any way affect the rights of the State over the fisheries even if those fisheries agreed to be divided between the parties and in that view o... |
under the circumstances the said Receiver rightly intimated this Court about the mistake committed by him and re-delivered possession of Nalban fishery to the State of West Bengal ARG |
The Calcutta High Court,both the learned Single Judge as well as the Division Bench committed serious error of law in directing the Receiver to take possession of Nalban fishery from the State of West Bengal and deliver-the vacant possession of the same to the members of the Sarkar family Ratio |
The learned counsel also urged that in any view of the matter,on the amendment of the West Bengal Land Reforms Act in the year 1936 giving it retrospective effect and defining land to include tank -fishery the Nalban Fishery vests in the State of West Bengal and,therefore,the High Court could not have issued the impugn... |
Ray the learned senior counsel appearing for Bansilal Farms in addition to the contentions raised by Mr ARG |
Salve appearing for the State of West ARG |
Bengal contended that the State being the owner of Nalban Fishery and having vested the management and control thereof with the State Fishery Development Corporation and the said Corporation having decided to use the tank fishery for a Boating Complex and the Bansilal Farms being the highest bidder and having been gran... |
Jaideep Gupta,learned counsel appearing for the respondents on the other hand condented that the decree passed by the Supreme Court in the partition suit amongst the members of the Sarkar family on the basis of a compromise arrived at between the parties would bind the State of West Bengal as the decree has been passed... |
He further contended that Nalban Fishery having been vested in the State of West Bengal under the provisions of West Bengal under the provisions of West Bengal Acquisition Act,1955,the State cannot get rid of the direction given by the Supreme Court to the Receiver to handover possession of the various fisheries covere... |
Gupta also contended that the Receiver assumed possession of the fisheries pursuant to the order of the Supreme Court dated 6th of November,1978 and having submitted a report to that effect on 22.11.1978 indicating that it has taken possession of the Nalban Fishery ARG |
The subsequent incumbent to the post of District Magistrate 24 Parganas,who became the Receiver by virtue of his official position had no further jurisdiction to re-deliver possession of the Nalban Fishery to the State of West Bengal and the comments already made by the High Court on the report of the subsequent Receiv... |
Judged from this view there is no infirmity with the direction issued by the learned Single Judge as well as Division Bench of the Calcutta High Court warranting interference by this Court Ratio |
Gupta,also contended that the order of the High Court of Hon'ble Mr ARG |
Justice Deepak Kumar Sen dated 23.9.1980 directing the Receiver to allow M/s ARG |
Ghose and Saha Surveyors to make proper demarcation in the Nalban Fishery dividing the same in two lots and thereafter carry out the directions of the Supreme Court in respect thereof has become final,the same not having been challenged by the State of West ARG |
Bengal and therefore,it would not be open for the said State in application for execution of the decree to raise the question of vesting of the Nalban Fishery with the State and the Court would not interfere with the direction given by the learned single Judge and Division Bench of the Calcutta High Court ARG |
On the question of vesting of the tank fishery under the amended provisions of the West Bengal Land Reforms Act,Mr ARG |
Gupta contended that the validity of the said Act has been challenged and is pending before the Calcutta High Court,an interim order has been passed in the said proceeding and therefore until that matter is decided it cannot be said ARG |
that the tank fishery vested with the State of West Bengal ARG |
In this connection,he had further urged that this question had not been raised before the High Court ARG |
In view of the rival submissions at the Bar the first question that arises for consideration is whether in the suit for partition amongst the members of the Sarkar family which was ultimately disposed of by a compromise decree in this Court Nalban Fishery had been allotted to some members of the Sarkar family and wheth... |
Bengal Ratio |
The Nalban Fishery was one of the items of property in the suit for partition is not disputed Ratio |
It is also not disputed that the State of West Bengal though was not a party to the suit but in course of proceeding before this Court by an order of the Court the said State of West Bengal was impleaded as a party Ratio |
The aforesaid order directing impleadment of the State of West Bengal as a 7 party was obviously intended for the purpose that the interest of the State and the rights of the State in relation of the State and the rights of the State in relation of the State and the rights of the State in relation to several fisheries ... |
The suit ultimately no doubt was disposed of on the basis of a compromise arrived at between the parties but the court took sufficient care in disposing of the appeals on the terms of compromise by observing that the State has substantial interest with regard to fisheries rights covered by the litigation and nothing in... |
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