IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No 640 of 2003 For Approval and Signature: HON'BLE MR.JUSTICE R.P.DHOLAKIA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : YES of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- KASIM ABDUL SATTAR @ BIRIYANI GAZI Versus STATE OF GJARAT, NOTICE THRO CHIEF SECRETARY -------------------------------------------------------------- Appearance: 1. Special Criminal Application No. 640 of 2003 MR KG VAKHARIA FOR MS AVANI S MEHTA for Petitioner No. 1-11 MR KAMAL B TRIVEDI, ADDL.ADV.GENERAL WITH MR AD OZA, PP assisted by MR PR ABICHANDANI, APP for Respondent No. 1 .......... for Respondent No. 2 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE R.P.DHOLAKIA Date of decision: 08/09/2003 C.A.V. JUDGEMENT This petition has been filed by the petitioners praying for a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the notification dated 6th March, 2003 issued by the Government of Gujarat (Legal Department) in exercise of powers conferred under Sub-Section (1) and (4) of Section 23 of the Prevention of Terrorism Act, 2002 (Act No.15 of 2002) which was published in the Government of Gujarat Gazette (Extraordinary) on 6th March, 2003 (Part IV-A) (Annexure-A to the petition) as also the order dated 23rd May, 2003 passed by the Government of Gujarat [Home Department (Special)] (Annexure-B to the petition) in exercise of powers conferred by Sub-Section (1) of Section 268 of the Code of Criminal Procedure, 1973. It is also prayed that respondent No.2 be directed to hold the proceedings of POTA Case No.1 of 2003 in respect of petitioner Nos.1 to 5 and POTA Case No.2 of 2003 in respect of petitioner Nos.6 to 11 (C.R.No.I-9 of 2002 registered with Godhra Railway Police Station) at Godhra. 2. The case of the petitioners in short is that they are nationals and citizens of India and were working as labourers. The petitioner No.4 is a blind person. It is their case that they have been falsely involved in an incident of attack on the railway coach at Godhra alleged to have taken place on 27th February, 2002. Upon the arrest of petitioner Nos.1 to 5 between March and April, 2002 and petitioner Nos.6 to 11 between June and August, 2002, they were lodged in Vadodara Central Jail and on 17th May, 2003, they were sent to Sabarmati Central Jail, Ahmedabad. Out of 125 accused persons in C.R.No.I-9 of 2002 registered with Godhra Railway Police Station, 79 accused including present petitioners were arrested. Since three accused are juveniles, their trial was transferred to Juvenile Justice Court, Godhra where it was registered as Juvenile Case No.12 of 2002 and they were released on bail. Out of remaining 76 accused, 8 accused were released under Sec.169, Cr.P.C., two were released on bail by the Sessions Court, Panchmahals and two by the High Court and now 68 accused are in Sabarmati Central Jail. Charge-sheet was filed on 22nd May, 2002. The petitioner Nos.1 to 5 and the petitioner Nos.6 to 11 were produced on 15th June, 2002 and 20th September, 2002 respectively from Baroda Central Jail before the Court of Judicial Magistrate (First Class), Godhra (Railway) and their case was committed to the Court of Sessions. On 6th March, 2003, a notification was issued by the Legal Department in exercise of powers conferred under Sub-Sections (1) and (4) of Section 23 of the Prevention of Terrorism Act, 2002 (Act No.15 of 2002) (`the Act' for short) whereby a Special Court having headquarters of City Civil and Sessions Court, Bhadra, Ahmedabad, was constituted for the case registered at Godhra Railway Police Station I.C.R.No.9 of 2002 and with the concurrence of the Chief Justice of High Court of Gujarat appointed Ms.S.G.Gokani, Judge, City Civil and Sessions Court, Ahmedabad, as the Judge to preside over the Special Court. On 17th May, 2003, an order Annexure-C was passed by the Government of Gujarat showing the names of 45 accused whereby it was directed that the accused shall not be removed from Ahmedabad Central Prison, Ahmedabad and on 23rd May, 2003, another order Annexure-B was passed by the Government of Gujarat (Home Department) in exercise of powers conferred under Sub-Section (1) of Section 268 of the Code of Criminal Procedure ('the Code' for short) showing the names of 20 accused persons including the present petitioners. Issuance of the aforesaid notification Annexure-A and order Annexure-B gives rise to the present petition. 3. It is stated by the petitioners that they reside at Godhra with their family members since the time of their predecessors and are falsely involved in the incident in question. It is further stated that charge-sheet has been filed in the Court on 22-5-2002 and accused are not being produced before the Court as per the report of police and jail authority. In respect of the case in question, Panchmahals Sessions Division has been established by the State of Gujarat in consultation with the High Court of Gujarat and C.R.No.I-9 of 2002 of Godhra Railway Police Station has been registered as POTA Case Nos.1/2003, 2/2003 and 5/2003 before the Special Court, City Civil and Sessions Court No.9, Ahmedabad. It is further stated that they were astonished when on 22-5-2003 the proceedings were held in Sabarmati Central Jail as they have not been communicated about the order Annexure-B having been passed till filling of petition and came to know only when copy is supplied on an application made by one of the accused. It is further stated that they belong to poor economic class and live belong the poverty line. Reproducing Sec.23 of the Act, it is stated that though State Government is vested with power under Sec.23(1) to constitute Special Court for the area or areas or for the group of cases, said power has been exercised specifying the case and not the area. The case is in respect of an incident alleged to have occurred within the territorial limits of Sessions Court, Panchmahals at Godhra and on reading Sec.23 as a whole, it is seen that the Government is not vested with the power to fix up the headquarter of Special Court. It is further stated that Sec.23(4) prescribes power of the Government in appointing a Judge of the Special Court and Sec.23(6) prescribes qualification. Putting Emphasize on the words "in any State", it is stated that if a Sessions Judge or Addl. Sessions Judge in the States of Maharashtra or Himachal Pradesh or any other place in India appointed as a Special Judge was working immediately before his appointment as a Sessions or Addl. Sessions Judge as aforesaid, he/she would not have the jurisdiction to try the case of C.R.No.I-9 of 2002 of Godhra Railway Police Station at the place where his headquarter is situated but at the place where the incident has taken place. Hence, in present case, since Ms.S.G.Gokani, who is a sitting Judge of the City Civil and Sessions Court has been appointed as a Special Judge for the case in question, C.R.No.I-9 of 2002 of Godhra Railway Police Station would not by itself transfer within the limits of City Civil and Sessions Court. It is further submitted that the jurisdiction of the trial of the case in question would be the place where the offence is alleged to have taken place and, therefore, fixing the headquarter within the limits of City Civil and Sessions Court, Bhadra, Ahmedabad, vide aforesaid notification Annexure-A is beyond the scope, competence, authority and jurisdiction of the Government of Gujarat and hence, the impugned notification qua fixing the headquarter at the aforesaid place is illegal and ultra vires. It is further stated that Sec.24 of the Act makes it mandatory to conduct the proceedings of the Special Court at the ordinary place of sitting i.e. the place where the incident is triable and since no order under Sec.24 has been passed without hearing the accused, the proceedings be held at the place where the incident is alleged to have taken place. Secs.25(2) and (3) provide that power to transfer a case is vested with the Supreme Court or the High Court. It is stated that Sec.2(1) of the Act specifies that the words not defined in the Act but defined in the Code shall have the meaning respectively assigned to them in the Code and hence, as per Sec.177 of the Code, ordinary place of trial is the Court within whose local jurisdiction the offence is committed. It is further stated that if the offence in question is tried at Ahmedabad, petitioners will be deprived of availing the benefit of advocates of their choice and they being very economically poor will not be in a position to bear the expenses, anxiety and worry of the proceedings at a distance from their family members and, therefore, the impugned notification is arbitrary, irrational and violative of Articles, 14, 19 and 21 of the Constitution of India as well as the provisions of the Act and the Code. 3.1 As regards the impugned order at Annexure-B, it is stated that removal of petitioners from Baroda Central Jail to Godhra, from Baroda Central Jail to Sabarmati Central Jail, production of petitioner Nos.1 to 5 and Nos.6 to 11 before J.M.F.C., Godhra (Railways) and J.M.F.C., Godhra respectively on 15-7-2002 and 20-9-2002, production of accused Nos.1 to 3 before the Sessions Court, Panchmahals, Godhra for trial on different dates in connection with Sessions Case No.133 of 2002 till their acquittal on 9-8-2002 and production of petitioner No.1 for trial in connection with Criminal Case Nos.1074 of 2002 and 1076 of 2002 before the J.M.F.C., Godhra (Railway) were without disturbance of any public order. It is further stated that eight accused were released under Sec.169 of the Code and four accused released on bail and to be tried with persons named in orders at Annexures-B and C have appeared before the Special Court on 22-5-2003, 3-6-2003 and 17-6-2003 at City Civil and Sessions Court, Ahmedabad, and were again called to appear on 30-6-2003. It is further stated that at the time when charge-sheet in the case was filed against some persons, they were produced before the Special Court. It is submitted that none of the aforesaid facts were taken into consideration while issuing the impugned orders Annexures-B and C. Showing Sr.No.15 of the impugned order Annexure-B, it is stated that though the said person has already been released on bail, his name was shown in the order which is a total non-application of mind. It is further stated that transfer of petitioners from Baroda Central Jail to Sabarmati Central Jail was with a mala fide intention to facilitate passing of the impugned order Annexure-B and passing of said order is against the provisions of Sec.327 of the Code and it is with a view to deprive the petitioners of a fair trial. 3.2 As regards the conduct of proceedings of the case in Sabarmati Central Jail, it is stated that presence of police commando with weapons and revolver creates an atmosphere of fear in the mind of petitioners and their relatives and hence, petitioners are not able to get any services of relatives and lawyers of their choice and hence, it is submitted that proceedings of the case in question should not be held in Sabarmati Central Jail. Though large number of accused was not there in serious cases like Limbadia Chawkdi involving death of 64 persons, Panderwala involving death of 20 persons, Kalol Police Station C.R.No.41 of 2002, Panchmahals District, involving death of 13 persons, no order under Sec.268(1) of the Code was passed and hence, passing of impugned order Annexure-B is discriminatory and violative of Articles 14, 19 and 21 of the Constitution of India. It is further submitted that non-communication of the order Annexure-B is with a mala fide intention to deprive the petitioners of a fair trial. It is, therefore, submitted that both the impugned notification Annexure-A and order Annexure-B be quashed and set aside and proceedings in question be ordered to be held at Godhra. 4. An affidavit-in-reply affirmed by Shri J.R.Rajput, Deputy Secretary, Home Department, Sachivalaya, Gandhiangar, has been filed on behalf of respondent No.1(ii) contending inter alia that the Government of Gujarat is vested with power to fix the headquarters of Special Court under the Act. It is further contended that the provisions of Sections 177 and 178 of the Code will not come in picture in the present case. The contentions that the notification Annexure-A is illegal, ultra vires and beyond the scope of Section 23 of the Act and also violative of Articles 14, 19 and 21 of the Constitution of India and the provisions of the Code as regards the words "having headquarters of City Civil Court and Sessions Court, Bhadra, Ahmedabad" are also denied. It is further contended that as per Section 24 of the Act, hearing of the petitioners is not required before passing any order. The contentions that order at Annexure-B passed under Sec.268 of the Code is without application of mind and non-communication of the same vitiates the same are also denied. It is stated that State Government is doing purely administrative act involving no quasi-judicial factor and that said order is passed under the provisions of Sec.268 of the Code based on the report dated 12-5-2003 sent by concerned I.O. to the State Government stating that there is likelihood of disturbance of public order and safety of the accused persons including the petitioners if persons named in the said order are removed out of prison. It is contended that relevant considerations for issuance of order were public order and public interest. It is stated that the incident in question precipitated large-scale communal disturbances in the State of Gujarat and in order not to risk the public interest if accused are removed from the prison, order under Sec.268 of the Code was passed. It is stated that contentions as raised in para 6.2 of the petition are about 2 to 4 co-accused being produced before the Court for the formal or other dates. It is stated that the incident of setting on fire the S-6 coach of Sabarmati Express led to widespread communal disharmony in the State of Gujarat and therefore, taking more than 65 accused persons physically for trial risking their life in the Court premises at Godhra which is a communally sensitive area was likely to provoke communal tension and disturbance of public order and, therefore also, it was a fit case where passing of the order at Annexure-B was necessitated. It is further contended that eight accused persons are released on bail cannot by itself lessen the seriousness of offence and cannot invalidate a well considered order passed under Sec.268 of the Code. As regards showing the name of an accused at Sr.No.15 in the order inadvertently, it is contended that a corrigendum delisting the said person and revoking the order qua said accused was issued. As regards transferring of the accused from Baroda Central Prison to Sabarmati Central Prison on 17th May, 2003, it is reiterated that lot of Bandobast had to be made having regard to the tension arising if petitioners had to be removed from the Baroda Central Prison and, therefore, trial of the train carnage wherein many accused have to be tried collectively for a single incident and which generated communal riots cannot be compared with isolated individuals namely, petitioner Nos.1, 2 and 3 being produced before the competent Court. It is, therefore, contended that there was nothing wrong in transferring petitioners on 17-5-2003 from Baroda Central Jail to Sabarmati Central Jail especially when a Special Court having its headquarter at Ahmedabad was constituted vide notification dated 6-3-2003 and hence, passing of the order under Sec.268 of the Code was well within the powers of State Government. It is contended that it is incorrect that the petitioners are unable to avail the services of lawyers of their choice to defend in the proceedings to be held in Sabarmati Central Jail more particularly when nearly 30 accused persons have already appointed advocates of their choice and also when Mr.Y.A.Chaka, an advocate appearing for some of the accused has assured the Special Court on 28th July, 2003 that almost all the accused would be represented by advocate. It is further contended that eminent lawyers are represented by various accused in various proceedings and application dated 17-6-2003 produced by the petitioner at page 92 seeking three months' time for engaging experienced and conversant advocates is relied upon in this respect. It is denied that holding of proceedings in the Sabarmati Central Jail is violative of Sec.27 and stated that juvenile accused would be tried by the juvenile Court as POTA is not invoked against them. As regards meting out discriminatory treatment to petitioners, it is contended that the incident was the one which triggered of the snowballing effect witnessed by the State and, therefore, case of the petitioners stands on a different footing. It is contended that in the cases like Limbadia, Pandelwala and Kalol, provisions of serious law like POTA was not invoked and hence, comparison of those cases with the case of the present petitioners would not arise. It is further stated that on the formal dates when accused were to be produced before the competent Trial Court, since a tense atmosphere prevailed, additional forces from District Police, State Reserve Police Force and Border Wing Home Guards were to be deployed in order to avoid any untoward incident. It is contended that since some of the accused showed apprehension of their elimination in encounter, request was made by accused to various authorities including National Human Rights Commission to ensure that those apprehending accused may not be removed from prison. In these circumstances, it is contended that the order under Sec.268 passed in exercise of power was with application of mind, just, legal, proper and cannot be termed as discriminatory or with colourable exercise of power or arbitrary. It is also contended that non-communication of order at Annexure-B cannot be said to be issued with deliberate and mala fide intention. Regarding the averments made that the impugned order frustrates the provisions of Sec.327 of the Code, it is contended that it was expedient in the interest of the public at large to issue the impugned order to avoid likelihood of breach of public order. It is stated that Sec.30 of the Act empowers the Special Court to hold the trial in camera, however, the said Court would be an open Court. It is submitted that provisions of the Act would have overriding effect in the event of any conflict 5. An affidavit-in-rejoinder sworn by Hussain Bilal Mitha, a relative of the petitioner No.7, has been filed contending inter alia that the affidavit-in-reply filed by Shri J.R.Rajputh, Deputy Secretary, Home Department, is not an affidavit in the eye of law as he has not pointed his authority and competence to file said affidavit on behalf of officers and departments which issued the impugned notification and order and that he based his affidavit on the memo of petition with annexures and not the concerned files. It is contended that order Annexure-B is a repetition of Sub-Section (2) of Section 268 of the Code and facts which did not exist in the order in support of grounds mentioned in Sub-Section (2) cannot be brought by way of affidavit. The incident triggered off large scale communal riots is denied. In this connection, he has relied upon the report dated 1st April, 2002 of the National Human Rights Commission. It is submitted that the Bandh called by Vishwa Hindu Parishad and others supported by ruling political party BJP is responsible for the aftermath events. It is further submitted that likelihood of disturbance of public order upon the petitioners' removal from the prison is only a figment of imagination. It is contended that non-mentioning of report of I.O. dated 12th May, 2003 to the state Government in the impugned notification and the order is indicative of the fact that order Annexure-C was passed prior to the report of I.O. It is further contended that since the affidavit-in-reply is based on perusal of memo of petition and its annexures, it cannot be presumed that he has seen the report of I.O. and when there is no reference of so-called report of I.O. either in the petition or in the annexures, incorporating the same at a later stage by way of affidavit amounts to misleading of Court and hence, he be dealt with strictly. It is further submitted that the alleged report of I.O. was got up or obtained under pressure subsequently to support the order Annexure-B and hence, said order be quashed and set aside. It is further submitted that the State Government has proceeded on the basis that the accused are required to be taken into special Court at Ahmedabad and not at Godhra in view of impugned notification. As regards the contention that Sessions court at Godhra is a communally sensitive area, it is stated that construction of buildings in Godhra one, for whole courts and the other, for fast track Courts at a cost of about Rs.5.00 crores would falsify this. It is further stated that in the nearby area of Sessions Court at Godhra, not a single incident of communal disturbance had occurred between 28th February and March/April, 2003. It is stated that Sec.9 of the Code requires the State Government to establish a Court of Sessions in every sessions division and the Court of Sessions is required ordinarily to hold its sitting at such place or places as the High Court may specify and while discharging this function, both the authorities ought to have considered the suitability of the place for holding the trial of all sorts of cases. It is denied that removal of 65 accused from the prison is likely to disturb the public order. As regards name of the accused at Sr.No.15 shown in the order, it is contended that no affidavit has been filed by the officer who passed the order qua accused No.15 about the inadvertent error committed by him and subsequent corrigendum does not absolve the impugned order from non-application of mind. It is denied that for removal of petitioners from Baroda Central Prison, lot of bandobast was required to be deployed. It is stated that the averments made in para 4.10 of the reply are contrary to the law laid down in A.K. Roy Vs. Union of India, AIR 1982 SC 710 and stated that the ratio laid down in the said case will be applicable in case of undertrial prisoners. It is stated that since there is a District Sub-Jail at Godhra, the petitioners and other accused could have been kept there. It is further stated that since there is a distance of 165 kms. from Godhra to Ahmedabad, due to their poor economic condition, relatives and friends are not able to give active assistance and help to the petitioners. Briefing some facts, it is contended that the attempt of the State Government is to deprive the petitioners of their right to just and fair trial. The contention that 30 accused have appointed advocates of their choice out of which, some are given legal aid and four are on bail are incorrect. It is stated that the persons who engaged advocates face hardship, obstruction and inconvenience in attending the court proceedings at Sabarmati Jail as advocates of the accused are searched at the entrance of jail and their juniors and clerks are also not permitted inside whereas prosecution advocates and their assistants are given entry without search. Strongly relying