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PETITIONER:

STATE THROUGH CBI, DELHI

Vs.

RESPONDENT:

GIAN SINGH

DATE OF JUDGMENT: 14/09/1999

BENCH:

K.T.Thomas, S.P.Kurdukar, G.B.Pattanaik.

JUDGMENT:

THOMAS,J.

The military action Operation Blue Star carried out

in the Golden Temple complex at Amritsar had a series of

aftermaths involving many horrendous incidents. In one such

incident a leader of Sikh community, Sant Harchand Singh

Longowal, was shot dead from close range distance on the

evening of 20.8.1985. Appellant Gian Singh and 6 others

were arraigned before a Designated Court under the

Terrorists and Disruptive Activities (Prevention) Act, 1985

(for short TADA 1985) for various offences connected with

the said murder. The Special Judge of the Designated Court

convicted the appellant of a number of offences including

Section 3(2)(i) of the TADA 1985. He was sentenced to death

for the said offence as the Special Judge noticed that no

other alternative sentence was prescribed for that offence

under TADA 1985. However, lesser sentences were awarded for

the remaining offences of which too the appellant was

convicted including Section 302 read with Section 34 IPC.

This appeal was filed by the appellant as of right since it

is so provided under Section 16 of the TADA 1985. The

remaining 6 accused in the array of the indicted persons

were found not guilty of any offence and hence they were all

acquitted. Two others were also shown as participants in

the same offences, one Harinder Singh alias Billa (he later

died on account of the bullet wounds sustained) and one

Jurnail Singh (he is now a proclaimed offender as his

whereabouts are still untraced).

As appellant has been in jail for a period exceeding

14 years in connection with this case, his learned counsel

seems to be disinterested in canvassing for an acquittal.

But he focussed all his efforts to have the sentence brought

down to imprisonment for life for the main offence as he

feels that the maximum term of fourteen years which

appellant has already spent in jail would help him to get

the benefit of a release order from jail authorities. But

the question of sentence need be considered only if his

conviction is liable to be upheld because we are dealing

with the first appeal which appellant, as of right, has

preferred against his conviction passed by the trial court.

The facts which led to the present case can be stated

in brief: The State of Punjab was passing through a

tortuous period during the first half of Nineteen Eighties.

The State as a whole was then a terrorist infested area

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where killings of human beings with illegal firearms were a

daily occurrence. Sant Harcharan Singh Longowal

(hereinafter referred to as Sant Longowal) was the President

of Siromani Akali Dal which was a widely represented

association of the Sikh community. Another association

consisting of extremists of the Sikh community had

recognised one Jurnail Singh Bhindaranwale as the leader.

He was supported by another extremist faction called All

India Sikh Students Federation (AISSF).

Golden Temple at Amritsar has ever been the most

revered place of worship for Sikhs all over the world.

Within the Golden Temple complex is situate a multi- tier

edifice called Akal Takht which is regarded as the seat of

Almighty. All important decisions concerning the religious

affairs of the community are being adopted at Akal Takht.

It has always been eliciting obeisance from the devotees of

the great temple. But during the first half of that decade

a lot of extremists under the leadership of Jurnail Singh

Bhindaranwale had perched inside Akal Takht and army

action was resorted to by the Government of India,

presumably, to flush out all the illegal occupants therein.

The army action so resorted to is now recorded in history as

Operation Blue Star which caused the magnificent Akal

Takht to crumble down and a large number of occupants

therein were crushed to death. It happened in June 1984.

Sant Longowal was arrested soon after the aforesaid

army action, and was interned in prison where he remained

till 12.3.1985.

In the meanwhile efforts were on to mollify the

wounded feelings of Sikh community. An accord was arrived

at between the then Prime Minister Rajiv Gandhi and Sant

Longowal on 24.7.1985 and a Pact was signed on its basis by

the aforesaid two leaders.

But the followers of Bhindaranwale including members

of AISSF opposed the said Pact as they considered the truce

a virtual surrender of Sikh pride to the destroyers of Akal

Takht. They publicly abused the leaders who signed the Pact

without securing any relief for the Sikh youths lodged in

jails and without restoring the Sikh soldiers to their ranks

who had impulsively deserted Defence Services on hearing the

news of the destruction of Akal Takht.

The above was the backdrop of the murderous attack

launched on Sant Longowal. According to the prosecution

case a criminal conspiracy hatched by some persons to

eliminate deceased Sant Longowal and his henchmen for the

acts of betrayal of Sikh Panth. They considered it

imperative to teach all such betrayers a lesson and

terrorise all those who declined to obey the edicts issued

by the organisations spearheaded by Jurnail Singh

Bhindaranwale.

On 30.7.1985 an attempt was made on Sant Longowal and

his comrades when they visited Golden Temple at Amritsar.

But the attempt did not succeed due to some unforeseen

developments. Though the security cover of Sant Longowal

was beefed up consequent on the aforesaid attempt on his

life, the determined conspirators were not deterred by any

such security measures.

The conspirators came to know that Sant Longowal was

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scheduled to address a meeting on 20.8.1985 at Sherpur

Gurudwara. Appellant and his co-assailants were entrusted

with the risky task of shooting Sant Longowal and his

colleagues. Revolvers and cartridges were supplied to the

assailants for achieving the purpose. A motorcycle was also

lent to them for swift movement to reach the target at the

appropriate opportunity.

The meeting at Sherpur Gurudwara started at 3.30 P.M.

But Sant Longowal addressed the audience around 5.30 P.M.

As he was closing the speech, appellant and Jurnail Singh

opened firing towards the stage. Some people from the

audience made a bold bid to thwart the onslaught. But the

assailants continued to shower bullets at the personages on

the dais. A number of persons including Sant Longowal

sustained serious firearm injuries.

The bodyguard of Sant Longowal, besides other police

personnel present, tried to catch the assailants. Though

one of them (Jurnail Singh) succeeded in escaping, the

appellant and Harvinder Singh @ Billa were over-powered and

were caught with the illegal firearms in their possession.

Sant Longowal was taken to the Civil Hospital at

Sangrur and other injured were removed to different

hospitals. Sant Longowal succumbed to his injuries at 8.40

P.M. on the same night.

The Designated Court acquitted all the remaining

accused who were tried along with the appellant, on the

premise that prosecution did not succeed in proving that

they were members of the criminal conspiracy. Regarding

appellant the Designated Court found that he shared the

common intention to murder Sant Longowal and his comrades

and they fired the revolvers in pursuance thereto. Hence

the conviction and sentence.

There is no dispute that Sant Longowal and the other

deceased were shot at while they were attending the meeting

at Sherpur Gurudwara on the evening of 20.8.1985. There is

also no dispute that appellant and Harvinder Singh alias

Villa were over-powered by people at the same site and they

were arrested by the police. So the limited question

regarding facts is whether appellant was one of the

assailants and whether he did it in concert with his

co-assailants.

The occurrence which happened at 5.30 P.M. in which

Sant Longowal was shot down was witnessed by a large number

of persons. A few among them were examined as prosecution

witness. PW-29 Surinder Singh was a member of the

legislative assembly during the relevant time. He was the

nephew of Sant Longowal. He said that he too was present in

the meeting and narrated the incident, identified the

appellant as one of the assailants using a revolver to shoot

the persons on the stage. PW-30 Rajinder Singh, PW-34

Karamjit Singh, PW-35 Santosh Singh, PW-40 Joginder Singh,

PW-41 Sher Singh and PW-102 Amir Singh were the other

eye-witnesses examined by the prosecution.

Among the above eye-witnesses PW-34 had sustained

injuries while assailants fired revolvers. PW-40 Joginder

Singh was the General Secretary of Akali Dal District

Committee. Both of them narrated that after Sant Longowal

completed his speech, purses were presented to him by some

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people in the audience as contributions towards the movement

which Sant Longowal spearheaded. Thereafter Jaikara was

said (it is the traditional slogan of Sikh people) and it

was then the appellant opened firing from a distance of 5-6

karms away from the stage. They and PW-29 Surinder Singh

have said that Sant Longowal was dragged backwards to save

him from further onslaughts, and one person tried to catch

the appellant but he too was shot at by the appellant;

thereafter appellant took to his heels and he was chased and

intercepted. When the police came, they took charge of the

appellant and they also took into custody the revolver from

the hands of the appellant. PW-41 Sher Singh was the

bodyguard of Sant Longowal. It was PW-102 Amir Singh who

succeeded in catching the appellant after the chase.

The Designated Court has considered the evidence of

the aforesaid witnesses in detail. Nothing has been shown

to us for doubting the correctness or the truth of their

version. Therefore we are also in agreement with the

finding of the Designated Court that the appellant was one

of the assailants, in concert with the other assailants, who

used firearms aiming at Sant Longowal and his associates who

were present at the meeting.

We have now to consider whether the aforesaid acts of

the appellant would fall within the ambit of terrorist act

in Section 3 of the TADA Act 1985. We extract Section 3(1)

here:

Whoever with intent to overawe the Government as by

law established or to strike terror in the people or any

section of the people or to alienate any section of the

people or to adversely affect the harmony amongst different

sections of the people does any act or thing by using bombs,

dynamite or other explosive substances or inflammable

substances or fire-arms or other lethal weapons or poisons

or noxious gases or other chemicals or any other substances

(whether biological or otherwise) of a hazardous nature in

such a manner as to cause, or as is likely to cause, death

of, or injuries to, any person or persons or damage to, or

destruction of, property or disruption of any supplies or

services essential to the life of the community, commits a

terrorist act.

The above said sub-section is identically worded with

the corresponding sub-section in the TADA Act of 1987 except

the added limb in the subsequent Act having the following

words: or detains any person and threatens to kill or

injure such person in order to compel the Government or any

other person to do or abstains from doing any act.

Sub-section (2) of Section 3 of TADA Act 1985 deals

with punishment. It reads thus:

Whoever commits a terrorist act shall,-

(i) if such act has resulted in the death of any

person, be punishable with death; (ii) in any other case,

be punishable with imprisonment for a term which shall not

be less than five years but which may extend to term of life

and shall also be liable to fine.

The only difference between Sub-section (2) of Section

3 quoted above and its corresponding provision in the TADA

Act 1987 is that the latter provides one more alternative

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punishment even for the most serious offence, i.e. death

or imprisonment for life.

In State vs. Nalini {1999 (5) SCC 253} a three- Judge

Bench of this Court has quoted the dictum laid down in

Hitendra Vishnu Thakur vs. State of Maharashtra {1994 (4)

SCC 602} with approval and concluded thus: Thus the legal

position remains unaltered that the crucial postulate for

judging whether the offence is a terrorist act falling under

TADA or not is whether it was done with the intent to

overawe the Government as by law established or to strike

terror in the people etc.

Here, there is overwhelming evidence to show that the

main intention of the persons who fired the revolvers

towards the podium wherefrom Sant Longowal spoke, was to

administer a terror or shock wave to the people at large

that the fate of all those who did not fall in line with

Bhindaranwala and AISSF would be the same as inflicted on

the victims of the shoot out at Sherpur. Sant Longowal was

not the only target of the shooters, though perhaps he was

one of the principal targets. We have, therefore, no doubt

that the said act would fall within the ambit of Section

3(1) of the TADA Act 1985.

It does not require much discussion to concur with the

conviction passed on the appellant for offences under

Section 302 read with Section 34 of the IPC as well. As

pointed out earlier, learned counsel for the appellant did

not address any arguments regarding that aspect as he has

focussed solely on the extent of sentence by pleading that

it should not go beyond imprisonment for life.

We have extracted Section 3(2) of TADA Act 1985 above.

It could be discerned therefrom that the only sentence which

the sub-section permitted for awarding is death penalty in

case the terrorist act resulted in the death of any person.

It must be pointed out that TADA 1985 remained in force only

for a period of 2 years starting from 23.5.1985. In other

words, TADA 1985 expired on 22.5.1987. Instead of the

statute reaching the stage of expiry by efflux of time, if

it was repealed by another statute, nothing would have

survived from the repealed statute unless the succeeding

enactment incorporates necessary provision to the contrary.

This is pithily amplified in Section 6 of the General

Clauses Act. But the aforesaid legal implications of repeal

of a statute cannot be applied in the case of expiry of a

statute, {vide State of Punjab v. Mohar Singh Pratap Singh,

(AIR 1955 SC 84)}. Normally the proceedings terminate ipso

facto with the expiry of the statute. Craies on Statutes

Law at page 409 of the 7th edn. has stated thus: As a

general rule, and unless it contains some special provision

to the contrary, after a temporary Act has expired, no

proceedings can be taken upon it, and it ceases to have any

further effect. Therefore, offences committed against

temporary Acts must be prosecuted and punished before the

Act expires, and as soon as the Act expires any proceedings

which are being taken against a person will ipso facto

terminate.

A Constitution Bench of this Court in S. Krishnan &

ors. vs. State of Madras & anr. (AIR 1951 SC 301) has

given approval to the above observation of the celebrated

author.

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While dealing with the implications of ipso facto

termination of temporary statutes another Constitution

Bench of this Court in State of Orissa vs. Bhupendra Kumar

Bose {1962 Supple. (2) SCR 380} has held that the

legislature can, and often does, avoid such an anomalous

consequence by enacting in the temporary statute a saving

provision, the effect of which is in some respects similar

to that of Section 6 of the General Clauses Act.

Incidentally it has to be pointed out that in the

expired statute i.e. TADA 1985 there is a saving clause

which is embodied in Section 1(3) which mandates for a

different outflow even after the expiry of the Act. The

sub-section reads thus:

It shall come into force on such date as the Central

Government may, by notification in the Official Gazette,

appoint and shall remain in force for a period of two years

from the date of its commencement, but its expiry under the

operation of this sub-section shall not affect-

(a) the previous operation of, or anything duly done

or suffered under, this Act or any rule made thereunder or

any order made under any such rule, or (b) any right,

privilege, obligation or liability acquired, accrued or

incurred under this Act or any rule made thereunder or any

order made under any such rule, or (c) any penalty,

forfeiture or punishment incurred in respect of any offence

under this Act or any contravention of any rule made under

this Act or of any order made under any such rule, or (d)

any investigation, legal proceeding or remedy in respect of

any such right, privilege, obligation, liability, penalty,

forfeiture or punishment as aforesaid,

and any such investigation, legal proceeding or remedy

may be instituted, continued or enforced and any such

penalty, forfeiture or punishment may be imposed as if this

Act had not expired.

The effect of operation of the above sub-section is

that in spite of the expiry of TADA 1985 on 22.5.1987 all

liabilities, penalties or punishments to which a person has

already become liable in respect of any offence under the

said Act would continue to chase him as though the said Act

remains in force. Of course it is only for the limited

purpose of such continuity that Parliament wanted the legal

fiction to operate that the Act would still continue in

force.

If the outflow of TADA 1985 had continued as such

without any succeeding legislation for covering the same

subjects there would not, perhaps, have been any problem.

But some difficulty has been posed when TADA 1987 was

enacted as its provisions substantially cover the same area

as in the former legislation prescribing punishments for

identical offences. In TADA 1985 (during the subsistence of

which the offence in this case was committed) the extreme

penalty, without any alternative, has been provided for the

most serious offence under section 3(2). But in the

succeeding legislation the harshness of the sentence has

been diluted for the same offence by providing an

alternative option to the court to impose.

If the position was just in the reverse order i.e.

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the later Act contained harsher sentence and the former Act

contained a lesser sentence the prohibition embodied in

Article 20(1) of the Constitution that no person shall be

subjected to a penalty greater than that which might have

been inflicted under the law in force at the time of

commission of the offence would have come to the rescue of

the offender. But the offender (who is liable to be

convicted for the same offence, had it been committed after

the coming into force of the subsequent TADA 1987) could

have been punished with a sentence of imprisonment for life,

because such an alternative is provided in that enactment.

What is the jurisprudential philosophy involved in the

second limb of Clause (1) of Article 20 of the Constitution?

No person shall be subjected to a penalty greater than that

which might have been inflicted under the law in force at

the time of commission of the offence. It is a fundamental

right of every person that he should not be subjected to

greater penalty than what the law prescribed, and no ex post

facto legislation is permissible for escalating the severity

of the punishment. But if any subsequent legislation would

downgrade the harshness of the sentence for the same

offence, it would be a salutary principle for administration

of criminal justice to suggest that the said legislative

benevolence can be extended to the accused who awaits

judicial verdict regarding sentence.

In the above context a reference to Section 25 of the

TADA 1987 will provide added strength to the above

proposition. Section 25 reads thus:

25.Over-riding effect.- The provisions of this Act or

any rule made thereunder or any order made under any such

rule shall have effect notwithstanding anything inconsistent

therewith contained in any enactment other than this Act or

in any instrument having effect by virtue of any enactment

other than this Act.

There is inconsistency between the sentencing scope in

Section 3(2) of TADA 1985 and in the corresponding provision

in TADA 1987. The expression in any enactment other than

this Act would, under section 25, encompass even enactment

which, though expired by efflux of time, continues to

operate by virtue of any saving clause. Accordingly, the

exclusivity of the extreme sentence contained in Section

3(2) of TADA 1985 must stand superseded by the corresponding

benevolent provision in TADA 1987. It is a permissible

course and the express prohibition contained in Article

20(1) of the Constitution is not a bar for resorting to the

corresponding sub-section in TADA 1987.

The result of the aforesaid discussion is that the

court gets jurisdiction to award the alternative sentence of

imprisonment for life as for the offence under Section 3(1)

of TADA 1985. On the fact situation of this case and in

view of the distance of time, particularly in view of the

long period of 13 years during which appellant was

languishing in jail under the spell of death penalty, we are

persuaded to award the lesser alternative i.e. imprisonment

for life.

We, therefore, confirm the conviction of the appellant

of the offences under which he stands convicted by the

Designated Court as per the impugned judgment. But the

sentence as for the offence under Section 3(2) of TADA 1985

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is altered to imprisonment for life. The other sentences

will remain undisturbed and will run concurrently with the

main sentence.