AJN IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2363 OF 2005 Mohd. Rizwan Mohd. Isaq @ Laddowala, ) aged 23 years, Room No.5, Raza Gali, ) Railway Line, Kurla (E), Mumbai, ) presently lodged at Arthur Road ) Mumbai Central Prison. ) ... Petitioner/ (Orig. Accused 5) Versus 1. The State of Maharashtra ) (At the instance of DCB, CID) ) 2. The Chief Secretary ) of the State of Maharashtra. ) ... Respondents/ (Complainants) ALONG WITH CRIMINAL APPEAL NO.789 OF 2005 Mohd. Hassan Mohd. Anas @ Hassan ) Batterywala, age 46 years, Sunder ) Baug Lane, Sanjay Nagar, Hill No.3, ) Kurla (W), Mumbai - 70. ) ... Appellant (Orig. Accused 5) Versus 1. The State of Maharashtra ) 2. The Chief Home Secretary ) of the State of Maharashtra. ) ... Respondents/ (Complainants) Mr. S.R. Chitnis, senior counsel with Mr. S.A. Pachola, Mr. Mirza Yadullah and Mr. Sharif Shaikh, advocates for the petitioner/appellant. Mr. S.R. Borulkar, Public Prosecutor with Mr. D.S. Mhaispurkar, A.P.P. and Ms. P.H. Kantharia, A.P.P. for the State. CORAM: CORAM: CORAM: SMT. RANJANA DESAI & SMT. RANJANA DESAI & SMT. RANJANA DESAI & ANOOP ANOOP ANOOP V. MOHTA, JJ. V. MOHTA, JJ. V. MOHTA, JJ. DATED: DATED: DATED: 24TH OCTOBER 2005. 24TH OCTOBER 2005. 24TH OCTOBER 2005. : 2 : ORAL JUDGMENT : (Per Smt. Ranjana Desai, J.) 1. Rule in Criminal Writ Petition No.2363 of 2005 and Criminal Appeal No.789 of 2005 is admitted. The respondents waive service. By consent of the parties, taken up for hearing forthwith. 2. Criminal Writ Petition No.2363 of 2005 and Criminal Appeal No.789 of 2005 involve common questions of law and facts and, therefore, they can be disposed of by a common judgment. 3. The petitioner in Criminal Writ Petition No.2363 of 2005 is original accused 5 and the appellant in Criminal Appeal No.789 of 2005 is original accused 4 in POTA Special Case No.1 of 2004 which is being tried by the Special Court constituted under the Prevention of Terrorism Act, 2002 (for short, "the POTA 2002"). For convenience, it would be better to refer to the petitioner in the writ petition and the appellant in the appeal as per their status in the special case. The accused are being tried along with other accused for offences under sections 3, 4, 5 and 20 of the POTA 2002 and also under the Explosive Substance Act, Arms Act, Damage to Public Property Act and the Indian Penal Code (for short, "the IPC"). According to the accused, during the pendency of this case, the Central Pota Review Committee (for convenience, "the said Committee") directed them to represent their case before it in person : 3 : or through their advocate. The accused represented themselves before the said Committee through their advocate. On 14/6/2005, the said Committee communicated its order to the Chief Secretary of the Government of Maharashtra and to the accused. It is stated in this order that after examining the available material on record and after hearing the counsel for the parties, the said Committee had passed order dated 10/5/2005 wherein it has directed the State of Maharashtra to proceed in accordance with clause (a) of sub-section 3 of section 2 of the Prevention of Terrorism (Repeal) Act, 2004 (for short, "the Repeal Act") in respect of accused 4 and 5. A copy of the order was also annexed to the said order. 4. Misc. Application No.44 of 2005 and Misc. Application No.42 of 2005 were preferred by accused 4 and 5 respectively in the Special Court praying that they may be discharged from the said case. The Special Court by its order dated 11/8/2005 rejected the said applications. The learned judge took a view that the said Committee is a creation of the legislature to prevent continuance of vindictive prosecutions against the accused and its object is not to stultify the pending trial where charges are framed by a court of law after considering the material. It is further observed that ultimately it is for the public prosecutor to apply his mind independently to the case. Even if the State Government is willing to withdraw the case, it is the public prosecutor who has to take the ultimate decision as per the provisions of the : 4 : Criminal Procedure Code (for short, "the Code") and it is for the Special Court to decide whether the plea of the public prosecutor to withdraw the case is acceptable or not. The learned judge was of the opinion that the direction given by the said Committee cannot create a right in favour of the accused. According to the learned judge, the application based on the report of the said Committee cannot create a right in favour of the accused and the application based on the report of the said Committee is not maintainable. The learned judge observed that the accused were not entitled to seek discharge as the charges are framed long back and witnesses are being examined. This order is challenged before us by accused 4 and 5. 5. Accused 4 has preferred the criminal appeal under section 34 of the POTA 2002 and has prayed that he may be discharged from the charges in the special case in the light of the order of the said Committee. Accused 5 has preferred the writ petition and has, inter alia, prayed that in the light of the order of the said Committee, the respondents may be directed to withdraw the charges under POTA 2002 levelled against him. 6. We have heard, at considerable length, Mr. Chitnis, the learned senior counsel appearing for accused 4 and 5. Mr. Chitnis contended that the Chief Secretary to the Government of Maharashtra has been made a party in the writ petition as well as in the criminal appeal but he : 5 : has not filed any affidavit in reply. He submitted that this fact is of great relevance and inasmuch as the reply is not filed, this court should draw an adverse inference. Mr. Chitnis gave us a brief history of the POTA 2002, the subsequent amendments made to it and its repeal. He pointed out that the POTA 2002 (Act No.15 of 2003) came into force on 24/10/2001. Under section 60 thereof, there was a provision for Review Committee. By the Prevention of Terrorism (Amendment) Act, 2003 (Act No.4 of 2004), the POTA 2002 was amended with effect from 27/10/2003. By this amendment, sub-sections 4, 5 and 6 were added to section 60. Sub-section 7 was added on 2/1/2004. The parliament then enacted the Repeal Act. By this Repeal Act, the POTA 2002 was repealed but sub-section 3 of section 2 thereof stated that notwithstanding the repeal of section 60 of the principal Act, the Review Committee constituted by the Central Government under sub-section (1) of that section, whether or not an application under sub-section (4) of that section has been made, shall review all cases registered under the principal Act as to whether there is a prima facie case for proceeding against the accused thereunder and such review shall be completed within a period of one year from the commencement of this Act and where the Review Committee is of the opinion that there is no prima facie case for proceeding against the accused, then (a) in cases in which cognizance has been taken by the Court, the cases shall be deemed to have been withdrawn; and (b) in cases in which investigations are pending, the : 6 : investigations shall be closed forthwith, with effect from the date of issuance of the direction by such Review Committee in this regard. Mr. Chitnis contended that POTA 2002 was repealed because its provisions were grossly misused. Even the insertion of sub-sections 4, 5, 6 and 7 to section 60 by amendment did not prevent the misuse of POTA 2002 and, therefore, the Repeal Act provided for sub-section 3 of section 2. Mr. Chitnis contended that this provision is distinct from the repealed sub-sections 4 to 7 of section 60 of the POTA 2002. Mr. Chitnis heavily relied on the statement of objects and reasons of the Repeal Act, to which we shall shortly advert. Mr. Chitnis contended that it is important to note that the Repeal Act has repealed section 60 of the principal Act but has saved the said Committee constituted by the Central Government under sub-section 1 of section 60 and this has to be read in the context of the statement of objects and reasons of the Repeal Act. He further submitted that the legislature in its wisdom thought that this is the only provision which can stop misuse of the principal Act. The said Committee has necessarily to review all cases registered under the POTA 2002 and in case it is of the opinion that there is no case, then consequences mentioned in sub-clauses (a) and (b) must follow and section 321 of the Code does not come in the picture at all. Neither the public prosecutor nor the court has any role to play. If the said Committee finds that prima facie there is no case then from the date it issues the : 7 : order, the cases in which cognizance has been taken by the court shall be deemed to have been withdrawn and in cases in which investigations are pending the investigations shall be closed forthwith. The learned counsel urged that the public prosecutor cannot defeat the intention of the legislature. 7. Mr. Chitnis contended that the judgment of the Madras High Court dated 4/2/2004 in a group of writ petitions being Writ Petition Nos.1238 to 1240 of 2004 and Writ Petition Nos.1297 to 1299 of 2004 (for short, "Madras judgment") where constitutionality of sub-sections 4, 5, 6 and 7 of section 60 was questioned and where the Madras High Court has taken a view that the direction given under sub-section 7 of section 60 will have to be understood only in the context of section 321 of the Code; that the said direction is not binding on the public prosecutor and that even if an application under section 321 of the Code is made, the ultimate arbiter is the Special Court, has no application to the present case because the Repeal Act came into force thereafter i.e. on 24/9/2004. Mr. Chitnis pointed out that even the Supreme Court judgment confirming Madras judgment is dated 8/3/2004 i.e. prior to the coming into force of the Repeal Act and, therefore, sub-section 3(a) and (b) of section 2 of the Repeal Act were neither before the Madras High Court nor before the Supreme Court and, therefore, those judgments would not be applicable to the present case. : 8 : 8. Mr. Chitnis contended that the judgment of the Gujarat High Court (for short, "Gujarat judgment") in Special Civil Application No.1103 of 2005 with Special Civil Application No.1105 of 2005 is dated 13/4/2005 and is undoubtedly delivered after the Repeal Act came into force but the Gujarat High Court has not considered the scheme of sub-sections 3(a) and (b) of section 2 of the Repeal Act and has read section 321 of the Code in such a manner as to defeat the aims and objectives of the Repeal Act. He submitted that if the provisions of the Repeal Act are so interpreted, it would not attain the object of prevention of misuse of the POTA 2002. 9. Mr. Chitnis submitted that it is important to note that in the special leave petition filed against the Gujarat judgment, the Supreme Court has granted leave and by way of interim order has allowed the said Committee to give its report pending disposal of the appeals. However, it has directed that no further action will be taken thereon by the prosecutor and the courts shall not proceed with the prosecutions of persons exonerated by the said Committee till further orders of the Supreme Court. Mr. Chitnis contended that the fact that the Supreme Court has used the words "prosecutions of persons exonerated" speaks volumes. 10. Mr. Chitnis then contended that the words "deemed to have been withdrawn" found in sub-section 3(a) of : 9 : section 2 of the Repeal Act are of great importance. He submitted that under section 50 of the POTA 2002, sanction to prosecute has to be granted by the Central Government or the State Government as the case may be. The effect of sub-section 3(a) of section 2 is that even sanction is deemed to have been withdrawn. Mr. Chitnis took us to the meaning of the word "deemed" as found in the Law Lexicon. He pointed out that the true synonym for the word "deemed" is "judged". Whenever the word "deemed" is used in a statute in relation to a person or a thing, it implies that the legislature after due consideration exercised its judgment in conferring that status or attribute to a person or a thing. He submitted that therefore the legislature wanted pending cases to be conferred status of withdrawn cases. He submitted that the word "cognizance" was not there in section 60. It has been added by the Repeal Act in sub-section 3(a) of section 2. The learned counsel submitted that considering the aims and objectives of the Repeal Act, this court must hold that section 321 of the Code cannot override sub-sections 3(a) and (b) of section 2 of the Repeal Act. Mr. Chitnis has also submitted his written submissions and we have considered the same. 11. As against this, Mr. Borulkar, the learned public prosecutor submitted that section 3 of the Repeal Act and sub-section 7 of section 60 of the POTA 2002 are in pari materia. Sub-section 7 is also introduced to prevent misuse of POTA 2002. It has a deeming provision. He : 10 : submitted that therefore the Madras judgment which has interpreted sub-section 7 of section 60 will cover the present case. 12. Mr. Borulkar further submitted that the said Committee is a part of the executive. The said Committee’s role ends when it submits its report and when application made under section 321 of the Code is placed before the court. It is for the public prosecutor to take a decision whether to withdraw the prosecution or not and the Special Court is the ultimate arbiter in the matter. Mr. Borulkar pointed out that the Supreme Court has affirmed the view of the Madras High Court that section 321 of the Code will override recommendations of the said Committee while dismissing the SLP filed against the Madras judgment. He submitted that to meet the situation created by the repeal of the POTA 2002, sub-section 3 of section 2 was enacted. He pointed out that the Gujarat judgment takes into consideration the provisions of the Repeal Act. He contended that the Gujarat High Court has, after considering sub-section 3 of section 2 of the Repeal Act, concurred with the Madras High Court and hence this court should take the same view. He drew our attention to the judgment of the Supreme Court in R.M. Tewari v. State (NCT of Delhi) and Ors., (1996) 2 SCC 610 where while considering the provisions of the Terrorist & Disruptive Activities Act, 1987 (for short, "the TADA"), the Supreme Court has held that it is for the public prosecutor to make an : 11 : application for withdrawal under section 321 of the Code. He also relied on the judgment of the Supreme Court in Sheonandan Paswan v. State of Bihar & Ors., (1987) 1 SCC 288 where the role of the public prosecutor is highlighted by the Supreme Court. The learned public prosecutor urged that in view of the above, the accused cannot be discharged on the recommendations of the said Committee unless the prosecutor deems it fit to make an application under section 321 of the Code for withdrawal of the prosecution. 13. We have given anxious considerations to the submissions advanced by both sides. 14. While considering the constitutional validity of the TADA which also aimed at containing terrorism in Kartar Singh v. State of Punjab, (1994) 3 SCC 569, the Supreme Court emphasised the need to have a screening committee to prevent abuse of stringent provisions of TADA. The POTA 2002 was enacted by the legislature for the prevention of, and for dealing with, terrorist activities and for matters connected therewith. It appears that in the light of observations of the Supreme Court in Kartar Singh’s case (supra) provision for screening committee was made under section 60 of the POTA 2002. Sections 19, 40 and 46 of POTA 2002 related to the Review Committee. On 27/10/2003, the Prevention of Terrorism (Amendment) Act, 2003 (Act No.4 of 2004) was enacted. Sections 4, 5 and 6 were added to section 60 of the POTA 2002. Section : 12 : 7 was added on 2/1/2004. It would be advantageous to reproduce section 60 in its entirety. "60. Review Committees. - (1) The Central Government and each State Government shall, whenever necessary, constitute one or more Review Committees for the purposes of this Act. (2) Every such Committee shall consist of a Chairperson and such other members not exceeding three and possessing such qualifications as may be prescribed. (3) A Chairperson of the Committee shall be a person who is, or has been, a Judge of a High Court, who shall be appointed by the Central Government, or as the case may be, the State Government, so however, that the concurrence of the Chief Justice of the High Court shall be obtained in the case of a sitting Judge: (4) Without prejudice to the other provisions of this Act, any Review Committee constituted under sub-section (1) shall, on an application by any aggrieved person, review whether there is a prima facie case for proceeding against the : 13 : accused under this Act and issue directions accordingly. (5) Any direction issued under sub-section (4) - (i) by the Review Committee constituted by the Central Government, shall be binding on the Central Government, the State Government and the police officer investigating the offence; and (ii) by the Review Committee constituted by the State Government, shall be binding on the State Government and the police officer investigating the offence. (6) Where the reviews under sub-section (4) relating to the same offence under this act, have been made by a Review Committee constituted by the Central Government and a Review Committee constituted by the State Government, under sub-section (1), any direction issued by the Review Committee constituted by the Central Government shall prevail. (7) Where any Review Committee constituted under sub-section (1) is of opinion that : 14 : there is no prima facie case for proceeding against the accused and issues directions under sub-section (4), then, the proceedings pending against the accused shall be deemed to have been withdrawn from the date of such direction." 15. It appears that because of large scale misuse of the POTA 2002, by the Repeal Act, it was repealed. The relevant portions of the statement of objects and reasons of the Repeal Act may be quoted as Mr. Chitnis has placed heavy reliance on it. "2. There have been allegations of gross misuse of the provisions of the Act by some State Governments. Views have been expressed that provisions of the Act were misused in cases where they should not have been invoked. It has also been observed in various quarters that the Act has, failed to serve its intended purpose and as a result, there have been persistent demands that this Act should be repealed. 3. The Government has been concerned with the manner in which provisions of the Act were grossly misused in the past two years. It was, therefore, felt necessary to repeal the Act. As Parliament was not in session, : 15 : the Prevention of Terrorism (Repeal) Ordinance, 2004 was promulgated on 21-9-2004. The Ordinance empowers the Central Review Committee to review all cases pending in the courts or at various stages of investigation and complete the review within the period of one year from the date of repeal of the Act and to give its directions. Whenever, in the opinion of the Central Review Committee no prima facie case is made out either in respect of cases pending in the courts, or under investigation, such cases shall be deemed to have been withdrawn and investigation closed, as the case may be." 16. Sub-section 3 of section 2 of the Repeal Act is material and, hence, it may be quoted. "2.(1) x x x (2) x x x (3) Notwithstanding the repeal of section 60 of the principal Act, the Review Committee constituted by the Central Government under sub-section (1) of that section, whether or not an application under sub-section (4) of that section has : 16 : been made, shall review all cases registered under the principal Act as to whether there is a prima facie case for proceeding against the accused thereunder and such review shall be completed within a period of one year from the commencement of this Act and where the Review Committee is of the opinion that there is no prima facie case for proceeding against the accused, then, - (a) in cases in which cognizance has been taken by the Court, the cases shall be deemed to have been withdrawn; and (b) in cases in which investigations are pending, the investigations shall be closed forthwith, with effect from the date of issuance of the direction by such Review Committee in this regard." 17. Sub-section 5 of section 2 thereof reads as under : "2.(1) x x x (2) x x x : 17 : (3) x x x (4) x x x (5) The Central Government may constitute more Review Committees, as it may consider necessary, for completing the review within the period specified in sub-section (3)." 18. There can be no doubt that the Repeal Act seeks to prevent and stop misuse of the POTA 2002 by entrusting to the said Committee the important task of reviewing all cases registered under the POTA 2002 whether an application is made to it or not. It has to undertake this task suo motu. The review has to be completed within one year and if the said Committee comes to a conclusion that there is no prima facie case against the accused in cases in which cognizance has been taken by the court, the said cases shall be deemed to have been withdrawn and in cases in which investigations are pending, the investigations shall be closed forthwith with effect from the date of issuance of the direction of the said Committee in this regard. This is the gist of sub-sections 3(a) and (b) of section 2 of the Repeal Act. The present case falls under sub-section 3(a) of section 2 of the Repeal Act. Sub-section 5 of section 2 of the Repeal Act permits the Central Government to constitute more Review Committees, as it may consider necessary, for completing the review within the period specified in : 18 : sub-section (3) i.e. one year. Therefore, the intention of the legislature is very clear that misuse of the POTA 2002 must be stopped. 19. It appears to us that sub-section 3 of section 2 was enacted by the Repeal Act to take care of the situation created by the repeal of POTA 2002 particularly section 60 thereof. Sub-section 3 of section 2 took into account two types of cases i.e. cases where investigations are in progress and cases in which cognizance has been taken by the court. All that sub-section 3 of section 2 did was to entrust suo motu powers to the said Committee to review all cases under the POTA 2002. Whereas in sub-section 7 of section 60, the words "pending proceedings" were used sub-section 3 of section 2 has clarified that pending proceedings would include cases in which cognizance has been taken by the court