From the law settled by this Court in various cases the illustrative though not exhaustive principles which emerge with regard to the ambit and scope of an Amending Act and its retrospective operation may be culled out as follows:
(i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits.
(ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature.
(iii) Every litigant has a vested right in substantive law but no such right exists in procedural law.
(iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished.
(v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication.
The Judgment of the Court was delivered by DR ANAND, J.- In this batch of criminal appeals and special leave petitions (criminal) the three meaningful questions which require our consideration are : (1) When can the provisions of Section 3(1) of the Terrorist and Disruptive Activities (Prevention) 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 i.e. is it retrospective in operation? and (3) What is the true ambit and scope of Section 20(4) and Section 20(8) of TADA in the matter of grant of ball to an accused brought before 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 incidentally whether the conditions contained in Section 20(8) TADA control the grant of bail under Section 20(4) of the Act also? We shall take up for consideration these questions in seriatim.
2. When can the provisions of Section 3(1) of TADA be attracted?
Learned counsel for the appellants submitted that even though the constitutional validity of Section 3 of TADA has been upheld by a Constitution Bench of this Court in Kartar Singh v. State of Punjabi, nonetheless 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 sensu 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 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 investigating officer decides to include that section while filing the challan and that 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.
3. Shri K.T.S. Tulsi, the learned Additional Solicitor General and Shri Madhava Reddy, Senior Advocate, appearing for the State on the other hand submitted that since the constitutional validity of Section 3 of TADA has been upheld by a Constitution Bench in Kartar Singh case’, it is not permissible for this Bench to re-examine its validity.on the basis of some argument which might have been raised before the Constitution Bench but was not so raised. It was pointed out that the three grounds of challenge which were raised before the Constitution Bench to question the legality and the efficaciousness of Sections 3 and 4 of TADA viz. : (SCC p. 650, para 140) “(1) These two sections cover the acts which constitute offences under ordinary laws like the Indian Penal Code, Arms Act and Explosive Substances Act;
(2) There is no guiding principle laid down when the executive can proceed under the ordinary laws or under this impugned Act of 1987; and (3) This Act and the Sections 3 and 4 thereof should be struck down on the principle laid down in State of W.B. v. Anwar Ali Sarkar2 and followed in many other cases including A.R. Antulay v. Union of India3.” were considered by the Constitution Bench and while upholding the vires and validity of Sections 3 and 4 of TADA, all the three grounds of challenge were negatived and therefore after the Constitution Bench judgment, it is not permissible to read within the provisions of Section 3 anything more than 1 (1994) 3 SCC 569: 1994 SCC (Cri) 899: JT (1994) 2 SC 423: 1994 (1) Apex Decisions SC (Cri) 413 2 1952 SCR 284: AIR 1952 SC 75 : 1952 Cri LJ 5 10 3 (1988) 2 SCC 764 what the Legislature has specifically provided therein. It was urged that to combat the menace of terrorism, it is necessary that restrictive interpretation should not be placed on the provisions of Section 3 of TADA and simply because the offences under Section 3 of TADA and under the ordinary penal law overlap, the court should not lay down as a general proposition that Section 3 of TADA is inapplicable in all such situations where the offences overlap.
4. The expression ‘terrorist act’ has been defined in Section 2(1)(h) of TADA. It provides that the expression terrorist act “‘has the meaning assigned to it in sub- section (1) of Section 3” Section 3(1) provides as under:
