WP(CRL) Nos.1712/05&754/06 Page 1 of 26 THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on: 27.05.2009 + WP(CRL) 1712/2005 STATE [THROUGH DEPUTY SECRETARY (HOME) GOVERNMENT OF NCT OF DELHI] ... Petitioner - versus – IBOTOMBI SAPAM AND OTHERS ... Respondents AND WP(CRL) 754/2006 STATE [THROUGH DEPUTY SECRETARY (HOME) GOVERNMENT OF NCT OF DELHI] ... Petitioner - versus – IRSHAD AHMAD MALIK AND OTHERS ... Respondents Advocates who appeared in this case: For the Petitioners : Ms Mukta Gupta For the Respondent No.1 : Mr N.D. Pancholi with Mr N. Mahendra Singh and Mr Ch. Nripenchandra For the Respondent No.2/UoI: Ms Gita Dhingra CORAM:- HON'BLE MR JUSTICE BADAR DURREZ AHMED HON’BLE MR JUSTICE P.K. BHASIN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporter or not ? Yes 3. Whether the judgment should be reported in Digest ? Yes WP(CRL) Nos.1712/05&754/06 Page 2 of 26 BADAR DURREZ AHMED, J 1. These petitions have been filed by the State (Government of NCT of Delhi) seeking the issuance of writs of certiorari quashing the opinions of the Review Committee to the effect that there is no prima facie case for proceeding against the respondents under the Prevention of Terrorism Act, 2002 (hereinafter referred to as „POTA‟). The two cases are unconnected but have been heard together as common legal issues arise for determination. In the case of Irshad Ahmad Malik, the Review Committee‟s opinion is dated 16.08.2005, whereas in the case of Ibotombi Sapam, the Review Committee gave its opinion on 11.05.2005. 2. Two questions arise for our consideration in these writ petitions:- i) Whether the State Government can challenge the opinion of the Review Committee by way of a writ petition ? ii) If yes, whether the opinion of the Review Committee in each of the two cases is liable to be set aside on the ground that the Review Committee in each case has travelled beyond the scope of its jurisdiction ? Whether the State Government can challenge the opinion of the Review Committee by way of a writ petition ? Ms Mukta Gupta, appearing for the State Government, contended that the answer to this question has to be in the affirmative. She placed WP(CRL) Nos.1712/05&754/06 Page 3 of 26 reliance on the Supreme Court decision in the case of Mahmadhusen AbdulRahim Kalota Shaikh v. Union of India & Others: 2008 (13) Scale 398. She laid particular emphasis on paragraphs 31 and 32 of the opinion of K.G. Balakrishnan, CJI, wherein it was observed as under:- “31. The opinion of the Review Committee is open to judicial review under Article 226 of the Constitution. Any person aggrieved by the opinion can challenge it in a writ petition. As long as an aggrieved person can challenge the opinion expressed by the Review Committee by invoking judicial review, the apprehension that there will be no remedy in the event of wrong opinion by Review Committee, is unwarranted. The opinions of the Review Committee under Section 2(3) of the Repealing Act are limited in number and are required to be given as one time measure with reference to a repealed statute. The availability of judicial review under Article 226 in the event of errors and abuses, is a sufficient safeguard and deterrent against any wrong doing by the Review Committee. 32. We therefore hold that once the Review Committee on review under Section 2(3) of the Repealing Act, expresses the opinion that there is no prima facie case for proceeding against the accused, in cases in which cognizance has been taken by the Court, such cases shall be deemed to have been withdrawn. The only role of the Public Prosecutor in the matter is to bring to the notice of the court, the direction of the Review Committee. The court on satisfying itself as to whether such an opinion was rendered, will have to record that the case stands withdrawn by virtue of Section 2(3) of the Repealing Act. The court will not examine the correctness or propriety of the opinion nor exercise any supervisory jurisdiction in regard to such a opinion of the Review Committee. But we make it clear that if the opinion of the Review Committee is challenged by any aggrieved party in writ proceedings and is set aside, the Court where the proceedings were pending, will continue with the case as if there had been no such opinion.” (underlining added) WP(CRL) Nos.1712/05&754/06 Page 4 of 26 3. Ms Mukta Gupta submitted that the above observations with regard to judicial review of the opinion of the Review Committee were made in the context of the apprehension that if the Review Committee arrived at a wrong opinion, there would be no remedy. She submitted that this is apparent from the following sentence in paragraph 30 of the said decision:- “30. An apprehension was expressed that if the Review Committee reaches a wrong opinion, there will be no remedy. … ” 4. Ms Mukta Gupta then referred to the decision of the Supreme Court in the case of Jasbhai Motibhai Desai v. Roshan Kumar Haji Bashir Ahmed: 1976 (1) SCC 671. In that decision, the Supreme Court noted that, it had laid down in a number of decisions that in order to have the locus standi to invoke the extraordinary jurisdiction under Article 226, an applicant should ordinarily be one who has a personal or individual right in the subject matter of the application, though in the case of some of the writs like habeas corpus or quo warranto, this rule is relaxed or modified. The court observed that as a general rule, infringement of some legal right or prejudice to some legal interest in hearing the petitioner is necessary to give him a locus standi in the matter. The Supreme Court further observed that in the context of a writ of certiorari, a petitioner may ordinarily fell in any of the following three categories:- WP(CRL) Nos.1712/05&754/06 Page 5 of 26 i) Person aggrieved; ii) Stranger; iii) Busybody or meddlesome interloper. 5. The Supreme Court further noted that the persons in the last category were easily distinguishable from those coming under the first two categories inasmuch as, such persons, inter alia, indulge in the pastime of meddling with the judicial process either by force of habit or from improper motives and that the High Court would do well to reject the applications of such busybodies at the threshold. The Supreme Court, however, felt that the distinction between the first and the second categories of applicants, though real, was not always well- demarcated. It observed that the first category has, as it were, two concrete zones; a solid central zone of certainty, and a grey outer circle of lessening certainty in a „sliding centrifugal scale‟, with an outermost nebulous fringe of uncertainty. Applicants falling within the central zone are those whose legal rights have been infringed. Such applicants undoubtedly stand in the category of “persons aggrieved”. In the grey outer circle, the bounds which separate the first category from the second, intermix, interfuse and overlap increasingly in a „centrifugal‟ direction. The Supreme Court observed that all the persons in this outer zone may not be “persons aggrieved”. In this backdrop, the Supreme Court observed as under:- WP(CRL) Nos.1712/05&754/06 Page 6 of 26 “39. To distinguish such applicants from 'strangers', among them, some broad tests may be deduced from the conspectus made above. These tests are not absolute and ultimate. Their efficacy varies according to the circumstances of the case, including the statutory context in which the matter falls to be considered. These are: Whether the applicant is a person whose legal right has been infringed? Has he suffered a legal wrong or injury, in the sense, that his interest, recognised by law, has been prejudicially and directly affected by the act or omission of the authority, complained of? Is he a person who has suffered a legal grievance, a person "against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something? Has he a special and substantial grievance of his own beyond some grievance or inconvenience suffered by him in common with the rest of the public? Was he entitled to object and be heard by the authority before it took the impugned action? If so, was he prejudicially affected in the exercise of that right by the act of usurpation of jurisdiction on the part of the authority? Is the statute, in the context of which the scope of the words "person aggrieved" is being considered, a social welfare measure designed to lay down ethical or professional standards of conduct for the community? Or is it a statute dealing with private rights of particular Individuals?” It is, therefore, clear that ultimately the question of “person aggrieved” has to be decided in the context of whether the person approaching the High Court for a writ of certiorari under Article 226 of the Constitution had a legal right under the statutory provisions or under the general law which has been subjected to injury. 6. Ms Mukta Gupta also relied upon the decision of the Supreme Court in the case of State of U.P. v. Ram Swarup and Another: AIR WP(CRL) Nos.1712/05&754/06 Page 7 of 26 1974 SC 1570, in particular, she laid emphasis on the observations appearing in paragraph 37 thereof which reads as under:- “37. The locus standi of State Governments to file appeals in this Court against judgments or orders rendered in criminal matters, particularly those commenced otherwise than on private complaints, has been recognised over the years and for a valid reason. All crimes raise problems of law and order and some raise issues of public disorder. The effect of crime on the ordered growth of society is deleterious and the State Governments are entrusted with the enforcement and execution of laws directed against prevention and punishment of crimes. They have, therefore, a vital stake in criminal matters which explains why all public prosecutions are initiated in the name of the Government. The objection of Mr. Garg that the State Government has no locus standi to file this appeal must accordingly be rejected.” 7. We may say straightaway that this decision would be of no help to Ms Mukta Gupta inasmuch as the Supreme Court was concerned with the locus standi of the State Government in relation to its right to file appeals and was not concerned with the locus standi in connection with a writ petition. The right of appeal is a statutory right and if it is available under the statute to the State Government, there can be no dispute with regard to the State Government‟s locus standi in filing any such appeal. The locus standi of the State Government in filing a writ petition against an order of the Review Committee constituted under the Prevention of Terrorism (Repeal) Act, 2004 stands on an entirely different footing. Merely because the State Government has, “a vital stake in criminal matters”, does not enable the State Government to file WP(CRL) Nos.1712/05&754/06 Page 8 of 26 a writ petition challenging the opinion of the Review Committee under the said Repealing Act of 2004. 8. The next decision cited by Ms Mukta Gupta is that of Maharaj Singh v. State of Uttar Pradesh and Others: AIR 1976 SC 2602. The said decision was rendered in the context of the U.P. Zamindari Abolition and Land Reforms Act, 1951. One of the questions that was considered was that of locus standi of the State to file an appeal against the decision of a lower court in the absence of the Gaon Sabha. One of the observations made in the context of the expression “person aggrieved” in the said decision was that where a wrong against the community interest is done, “no locus standi” will not always be a plea to non-suit an interested public body chasing the wrong doer in court. In that case, the Supreme Court felt that the Government fell within the category of “person aggrieved” inasmuch as there is right of resumption of an estate from the Gaon Sabha, meant to be exercised in public interest, which would otherwise have been seriously jeopardized if the estate was allowed to slip into the hands of a trespasser. The Supreme Court further observed that the estate belonged to the State, was vested in the Gaon Sabha for community benefit and was controlled by the State through directions to the Land Management Committee and was liable to be divested without ado any time. It was in that context that the Supreme Court held that the State was entitled to WP(CRL) Nos.1712/05&754/06 Page 9 of 26 appeal under Section 96 of the Code of Civil Procedure. It is clear that this decision would also be of no help to the petitioner. This is so because in Maharaj Singh (supra), the estate clearly vested in the State Government. The appeal filed by the State was, therefore, to protect its vested interest and that of the community at large. In that context, the State was considered to have locus standi being a “person aggrieved”. The State obviously had a legal right inasmuch as the estate vested in the State. Therefore, to ensure that its legal right was not jeopardized, the State was entitled to seek remedy for the infringement of such a right. The position in the present case is entirely different. This shall become clear from the discussion below. 9. Lastly, Ms Mukta Gupta referred to the decision of the Supreme Court in the case of State of Orissa v. Union of India and Another: 1995 Supp.(2) SCC 154. She submitted that this was an instance where the State Government filed a writ petition and the Supreme Court held that it had locus standi to do so. She referred to paragraphs 11 and 12 of the said decision which read as under:- “11. We have to consider whether the Orissa High Court was right in dismissing the writ petition filed by the State Government challenging the order of the Central Government dated 10.5.78 on the ground that the writ petition was not competent and maintainable. 12. In this connection, it is necessary to note that in the first place, the State Government is not merely an authority WP(CRL) Nos.1712/05&754/06 Page 10 of 26 subordinate to the Central Government which would, undoubtedly, be bound by the revisional orders of the superior authority. It is also the owner of the mines and minerals in question. If it is directed to issue a mining lease in favour of any party, it has locus stands to challenge that order under Article 226 of the Constitution of India.” 10. From the above extract itself, it becomes immediately clear that that decision stands on an entirely different footing from the present case. The State Government was clearly the owner of the mines and minerals in question and any direction given by the Central Government with regard to the issuance of a mining lease in favour of any party would undoubtedly affect the rights of the State Government as owners of the mines and minerals. Consequently, its legal right would be affected and, if such rights were adversely affected, it would fall within the ambit of the expression “aggrieved person”. Consequently, the State Government, in such a situation, would clearly have locus standi to challenge any such direction or order passed by the Central Government under Article 226 of the Constitution of India. However, the position in the present case is entirely different. It is not clear as to what is the legal right that has been affected by the rendering of the opinions by the Review Committee. We shall discuss this in greater detail below. 11. Mr Pancholi, appearing on behalf of the respondents, submitted that the question of the State Government‟s locus standi in challenging WP(CRL) Nos.1712/05&754/06 Page 11 of 26 the opinion of the Review Committee by way of the present writ petition arises in the backdrop of the question of withdrawal from the prosecution. According to him, in the matter of serious crimes, the State is vitally interested in prosecuting the cases in relation thereto. The State, however, also has the power to withdraw from the prosecution. Under the normal law, it is the provisions of Section 321 of the Code of Criminal Procedure, 1973 which would apply. In that instance, although the move for withdrawing from a case may be initiated by the State Government, it is ultimately the public prosecutor, who, after satisfying himself, that it is a case fit for withdrawal, has to move an application before the court for withdrawing from the prosecution. Thereafter, it is for the court in exercise of its supervisory jurisdiction to consent to such withdrawal. He submitted that by virtue of the Repealing Act of 2004, the discretion which vested with the State and consequently with the public prosecutor with regard to withdrawal from the prosecution has been taken away. The State as also the public prosecutor has no say in the withdrawal from the prosecution. All the cases registered under POTA automatically fell for review by virtue of Section 2 (3) of the Repealing Act of 2004. The Review was to be done by the Review Committee constituted under Section 60 of POTA. The purpose of review was to consider as to whether there was a prima facie case for proceeding against the accused under POTA. It is further stipulated under Section 2(3) of the Repealing Act of 2004 that the WP(CRL) Nos.1712/05&754/06 Page 12 of 26 review is to be completed within one year from the commencement of the Act, i.e., from 21.09.2004. 12. Mr Pancholi further submitted that even the supervisory jurisdiction of the court under Section 321, CrPC has been taken away. Consequently, by virtue of the Repealing Act of 2004, once the Review Committee is of the opinion that there is no prima facie case for proceeding against the accused under POTA, then, in cases in which cognizance has been taken by the court, the cases are deemed to have been withdrawn. Such withdrawal would, therefore, result in the discharge of the accused if the withdrawal is at a stage before the charge has been framed and, if it is at a stage after the charge has been framed, the same shall result in an acquittal. 13. Mr Pancholi also submitted that the reference to an “aggrieved party” in M.A.K. Shaikh (supra) is clearly to the relatives of the victims or the accused themselves, but definitely not to the State Government. He referred to paragraph 33 (iii) of the said decision wherein, the Supreme Court directed as under:- “(iii) The appeals filed by POTA accused are allowed in part accordingly. The appeals by the relatives of victims are disposed of reserving liberty to challenge the opinions of the Review Committee, wherever they are aggrieved.” WP(CRL) Nos.1712/05&754/06 Page 13 of 26 14. According to Mr Pancholi, this direction in itself makes it clear that when the Supreme Court used the expression “aggrieved party”, it nowhere contemplated the State Government to be the aggrieved party. Consequently, Mr Pancholi submitted that the State Government is not entitled to challenge the opinion of the Review Committee and, therefore, the writ petitions ought to be dismissed. 15. We may note that this entire controversy with regard to locus standi arises in the backdrop of the question of withdrawal from prosecution. The Supreme Court in the case of State of Bihar v. Ram Naresh Pandey and Another: AIR 1957 SC 389, with reference to Section 494 of the Criminal Procedure Code, 1898, which is similar to Section 321 of the Criminal Procedure Code, 1973, observed that in understanding and applying the Section, two main features thereof have to be kept in mind. The initiative is that of the public prosecutor and what the court has to do is only to give its consent and not to determine any matter judicially. According to the said decision, the judicial function, implicit in the exercise of the judicial discretion for granting the consent for withdrawal from a case, would normally mean that the court has to satisfy itself that the executive function of the public prosecutor had not been improperly exercised or that it was not an attempt to interfere with the normal course of justice for illegitimate WP(CRL) Nos.1712/05&754/06 Page 14 of 26 reasons or purposes. The Supreme Court also observed that “it has also to be appreciated that in this country, the scheme of administration of criminal justice is that the primary responsibility of prosecuting serious offences (which are classified as cognizable offences) is on the executive authorities”. In Rahul Agarwal v. Rakesh Jain and Another: 2005 (2) SCC 377, the Supreme Court, after considering the said decision in Ram Naresh Pandey (supra) which was rendered in the context of Section 494 of the 1898 Code and the later decisions in the cases of Sheonandan Paswan v. State of Bihar and Others: 1987 (1) SCC 288 and Abdul Karim and Others v. State of Karnataka and Others: 2000 (8) SCC 710, which were in the context of Section 321 of the present Code of Criminal Procedure, 1973, observed that:- “10. From these decisions as well as other decisions on the same question, the law is very clear that the withdrawal of prosecution can be allowed only in the interest of justice. Even if the Government directs the Public Prosecutor to withdraw the prosecution and an application is filed to that effect, the court must consider all relevant circumstances and find out whether the withdrawal of prosecution would advance the cause of justice. If the case is likely to end in an acquittal and the continuance of the case is only causing severe harassment to the accused, the court may permit withdrawal of the prosecution. If the withdrawal of prosecution is likely to bury the dispute and bring about harmony between the parties and it would be in the best interest of justice, the court may allow the withdrawal of prosecution. The discretion under Section 321 Code of Criminal Procedure is to be carefully exercised by the Court having due regard to all the relevant facts and shall not be exercised to stifle the prosecution which is being done at the instance of the aggrieved parties or the State for redressing their grievance. Every crime is an offence against the society and if the accused committed an offence, society demands that he should be punished. Punishing the person who perpetrated the WP(CRL) Nos.1712/05&754/06 Page 15 of 26 crime is an essential requirement for the maintenance of law and order and peace in the society. Therefore, the withdrawal of the prosecution shall be permitted only when valid reasons are made out for the same.” 16. We may also note the observations of the Supreme Court in the case of Rajender Kumar Jain v. State through Special Police Establishment and Others: 1980 (3) SCC 435, to the following effect:- 14. “Thus, from the precedents of this Court, we gather: 1. Under the scheme of the Code prosecution of an offender for a serious offence is primarily the responsibility of the Executive. 2. The withdrawal from the prosecution is an executive function of the Public Prosecutor. 3. The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to someone else. 4. The Government may suggest to the Public Prosecutor that he may withdraw from the prosecution but none can compel him to do so. 5. The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant grounds as well in order to further the broad ends of public justice, public order and peace. The broad ends of public justice will certainly include appropriate social,