: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT Petition NO. 2140 OF 2005 1. Mr. Aatif Nasir Mulla. Aged 28 years, Occu: Services, 2. Mr. Haseeb Zubair Mulla Aged 35 yrs. Occ: Business 3. Mr. Farhan Abdul Malik Khot Aged 28 yrs., Occu: Business 4. Mr. Adnan Bilal Mulla Aged 28 yrs., Occu. Business All residents of Village Borivali Post Padgha, Tal. Bhiwandi Dist : Thane – 421 101. 5. Mr. Ghulam Akbar Khotal Aged 28 yrs., Occu: Business Resident of Allah Rakhi Kutir, Gaundi Mohalla, Kalyan West, District : Thane. 6. Mr.Mohd. Kamil Mohd. Jamil Shaikh Aged 28 yrs., Occu : Business Resident of Joshi Baugh, Khatoonbi Chawl, Thor Flour Mill, Kalyan West, Dist. Thane. 7. Mr. Haroon Rashid Mohd. Yamin Lohar Aged 29 yrs., Occu: Business Resident of Sagar Niwas Building, : 2 : Room No.17, Pipe Road, Kurla(West), Mumbai -70 8. Mr. Rashid Ahmed Abdul Malik Ansari Aged 28 yrs., Occ: Business R/o. Krishna Kunj, 1st Floor, Room No.11, Vinobha Bhave Nagar, Kurla(West), Mumbai – 70. 9. Mr.Noor Mohammed Abdul Malik Ansari Aged 32 yrs., Occu: Business Resident of Group No.69, Plot No.95 Noor Baugh, Ayesha Nagar, Malegaon, Dist: Nashik 10.Mr.Anwar Ali Javed Ali Khan. Aged 39 yrs., Occu: Service R/o, 1103, Old Modi Khana Pune – 411001. 11.Mr.Mohammed Nadeem Paloba Aged 35 yrs., Occu: Business 301, Suhail Apartment, Near Kausa Street, Mumbra, Dist: Thane 12.Mr. Arif Hussain Panwala Aged 33 yrs., Occu: Business, Resident of 76, Zainabi Chawl Tanaji Chowk, New Mill Road, Kurla(W), Mumbai. .... Petitioners. v/s. 1. The Central POTA Review Committee Through its Secretary, having office at Room No.246,Vigyan Bhawan Annexe New Delhi. : 3 : 2. The Union of India Through the Ministry of Home Government of India, Aikar Bhavan, M.K.Road, Churchgate, Mumbai – 400 021. 3. The State of Maharashtra Through DCB, CID, Police HQ, Crawford Market, Mumbai. ...Respondents WITH CRIMINAL WRIT Petition NO.677 OF 2009 Saquib Abdul Hamid Nachan Age 48 years, Occu: Business R/o. Bolivali, Post Padgha, Taluka Bhiwandi, Dist. Thane. (Presently in judicial custody at Central Jail, Thane). ....Petitioner. (Orig. Accused No.1) v/s. 1. Union of India Ministry of Home Affairs North Block, New Delhi. ...Respondent 2. State of Maharashtra Through DCB-CID, Police Hqrs. Crawford Market, Mumbai. ....Respondent (Orig. Complainant) : 4 : Mr. Mubin H. Solkar, advocate for petitioners in W.P. 2140/2005. Mr. D.J. Khambata-ASG with Mandar Goswami & Afroz Shah, advocate for respondents 1 & 2. Ms. S.V.Gajare-APP for the State. Mr. Sudeep Pasbola, advocate for petitioner in WP.677/09. ...... CORAM : A.M.KHANWILKAR AND U.D. SALVI, JJ. JUDGMENT RESERVED ON : 03rd September, 2010. JUDGMENT PRONOUNCED ON : 17th September, 2010. JUDGMENT (Per A.M.Khanwilkar, J.) : Both these Petitions can be disposed of by this common Judgment as the issues raised are overlapping. 2. Petitioners in the respective Petitions are tried for offence punishable under the provisions of Prevention of Terrorism Act, 2002 (hereinafter referred to as POTA for the sake of brevity). 3. In the former Petition it is prayed that the direction be issued to Central POTA Review Committee to forthwith review the case of the : 5 : Petitioners therein in connection with POTA Special Case No. 2/2003 which was pending on the file of the Special POTA Court at Mumbai and to examine whether there is prima-facie case against them as mandated under the provisions of the POTA (REPEAL) Ordinance, 2004. 4. In the second Petition, it is prayed that the order passed by the Special Court under POTA at Mumbai in Application Exhibit 59 in POTA Special Case No. 2/2003 dated 24th February, 2009 be quashed and set aside. By the said order the Petitioner’s application for discontinuance of proceedings initiated under the provisions of POTA against the said Petitioner has been rejected. The said relief was founded on the assertion that the Review Committee having failed to review the case pending in POTA Court at Mumbai against the Petitioner within one year from the date of Repeal of the POTA Act and having failed to give its directions, the trial pending against the Petitioner-original accused no. 1 cannot proceed further and will have to be discontinued and dropped. 5. The principal question that arises for our consideration is: whether on account of the provisions contained in the Prevention of Terrorism (Repeal) Act, 2004 (hereinafter referred to as Repeal Act, 2004 for the sake of : 6 : brevity), was it mandatory for the Review Committee constituted under Section 60 of the POTA Act to review even the cases which were already reviewed by it before coming into force of the Repeal Act afresh and to issue appropriate directions? 6. In the former Petition, the Petitioners are facing trial for having committed offence punishable under the provisions of POTA being POTA Special Case No. 2/2003. The said trial against the Petitioners is for three different offences of bomb blast, namely, the Mulund blast case, being DCB, CID, C.R. No. 21/2003; the Vile Parle blast case, being DCB, CID, C.R. No. 9/03; and the Bombay Central bomb blast case, being DCB, CID, C.R.No. 59/03. The Petitioners, except the Petitioner No.4, were also arrested and are being tried in another POTA case in connection with the Ghatkopar blast case i.e. DCB, CID, C.R. No. 156/02 which is pending on the file of Special Court bearing POTA Special Case No. 1/2003. 7. It is common ground that Section 60 of the POTA, as it stood prior to amendment in 2003, merely provided for the constitution of the Review Committee. It did not contain any provision to amplify the scope of such review or the binding nature of the decision of the Review Committee qua : 7 : the accused even after the Review Committee opined that no prima-facie case for proceeding against the concerned accused was made out. Section 60 was amended. That amendment came into force from 27th October, 2003. By virtue of the said amendment, sub-section (4) to (6) in Section 60 came to be added. 8. As a consequence of this provision, the Petitioners in the former Petition filed application under Section 60 of the POTA before the Central Review Committee complaining of misuse of provisions of POTA against them. On the basis of the said application, the Review Committee reviewed the case of the Petitioners. By an order dated 2nd July, 2004, the said Central Review Committee after scrutiny of the evidence against the Petitioners concluded that it did not find prima-facie misuse of the provisions of POTA in respect of the Petitioners-accused in the blast case of Mumbai Central Railway Terminus, Vileparle (E) and Kurla. It, therefore, rejected their applications, which were treated as complaints. It is also common ground that this decision of the Central Review Committee has not been challenged by the Petitioners and has been allowed to become final. : 8 : 9. However, after coming into force of the Repeal Act w.e.f. 21st September, 2004 and relying on the provisions contained therein, the Petitioners claimed that it was mandatory for the Central Review Committee to once again review the cases registered against the Petitioners under the principal Act (POTA) so as to ascertain whether there is a prima- facie case for proceeding against the Petitioners for the said offence and to issue appropriate directions. It is in this background, Petitioners in the first Petition have approached this Court for direction against the Review Committee to examine their case to find out whether there is prima-facie case against the Petitioners and to give its finding thereon. 10. The second Petition is filed by original accused no. 1 in POTA Special Case No. 2/2003 pending before the Special Court in POTA Act, Mumbai. Even this Petitioner, after the amendment of Section 60 of the POTA, had filed application before the Central Review Committee which was duly considered and rejected on 2nd July, 2004 - on the finding that there was prima-facie case to proceed against the Petitioner. However, after coming into force of the Repeal Act and relying on the provisions contained therein, this Petitioner filed application Exhibit 59 before the Special Judge constituted under POTA at Mumbai in POTA Special Case : 9 : No. 2/2003. By the said application this Petitioner prayed for dropping the trial of POTA offences against the said Petitioner on the ground that after coming into force of the Repeal Act, the Central Committee, which was obliged to review the case of the Petitioner afresh, has failed to do so. As a consequence, the trial for POTA offence against the Petitioner cannot be continued and will have to be terminated. This application, however, came to be rejected by the Special Judge on 24th February, 2009. 11. By the present Petition, the said order passed by the Special Judge below Exhibit 59 is the subject matter of challenge. It is thus prayed that direction be issued to Special Court under POTA at Mumbai to discontinue and drop the proceedings initiated under the provisions of POTA, 2002 against the Petitioner in POTA Special Case No. 2/2003. 12. Both these Petitions are resisted by the Respondents on the argument that the assumption on the basis of which the Petitioners have sought direction against the Central Review Committee to reconsider and review the case of the Petitioners afresh as a result of the coming into force of Repeal Act, 2004 is founded on complete misreading of provisions of the Repeal Act. That assumption is ill advised and none of the Petitioners are : 10 : entitled to any relief whatsoever considering the fact that the Petitioners had submitted applications before the Review Committee constituted under Section 60 of the POTA before coming into force of the Repeal Act of 2004 and the same were duly considered on merits and the grievance of the Petitioners of misuse of provisions of POTA was positively negatived. In that, the Review Committee on analysing the evidence has found that there was material to proceed against each of the Petitioners for offence punishable under POTA. In such a case, the question of reconsideration of their case by the Review Committee under Section 60 after coming into force of the Repeal Act in 2004 does not arise. Going by the scheme of Repeal Act and even on liberal construction of the provisions of the Repeal Act, the argument of the Petitioners cannot be countenanced. 13. As aforesaid, the real controversy is whether the provisions of Repeal Act mandates review of cases afresh even though the Review Committee constituted under Section 60 of the POTA Act had already reviewed the same and recorded its opinion thereon. The second question that may have to be addressed is: even if we were to hold that the Review Committee under Section 60 was obliged to reconsider the cases against the Petitioners inspite of its earlier decision, whether failure to do so would : 11 : entail in termination of the pending trial against the Petitioners for offence under POTA on account of Repeal Act, 2004? 14. Before we proceed to elaborate on the submissions advanced before us, we would think it apposite to straightway advert to Section 60 of the POTA as amended with effect from 27th October, 2003. The same reads thus: “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: Provided that in the case of a Union territory, the appointment of a person who is a Judge of the High Court of a State shall be made as a Chairperson with the concurrence of the Chief Justice of the concerned High Court. [(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 accused under this Act and issue directions accordingly. : 12 : (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.]” (emphasis supplied) 15. We may now refer to the statement of objects and reasons of the Repeal Act, 2004. The same reads thus:- “Statement of objects and Reasons.-The Prevention of Terrorism Act, 2002 was enacted as a special law to deal with terrorist acts. 2. There have been allegations of gross misuse of the provisoins 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 provisons 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, the Prevention of Terrorism (Repeal) Ordinance, 2004 was promulgated on 21-9-2004. The Act 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 : 13 : 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. 4. The Prevention of Terrorism (Repeal) Bill, 2004 seeks to replace the Prevention of Terrorism (Repeal) Ordinance, 2004 and to achieve the above objects.” 16. We may now reproduce the provisions of the Repeal Act of 2004 in its entirety which reads thus:- “1. Short title and commencement.-(1) This Act may be called THE PREVENTION OF TERRORISM (REPEAL) ACT, 2004. (2) It shall be deemed to have come into force on the 21st day of September, 2004. 2. Repeal of Act 15 of 2002 and saving.-(1) The Prevention of Terrorism Act, 2002 (15 of 2002) (hereinafter referred to as the principal Act) is hereby repealed. (2) The repeal of the principal Act shall not affect- (a) the previous operation of, or anything duly done or suffered under the principal Act, or (b) any right, privilege or obligation or liability acquired, accrued or incurred under the principal Act, or (c) any penalty, forfeiture or punishment incurred in respect of any offence under the principal Act, 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 proceedings or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the principal Act had not been repealed: Provided that notwithstanding anything contained in this sub-section or in any other law for the time being in force, no Court shall take cognizance of an offence under the principal Act after the expiry of the period of one year from the commencement of this : 14 : Act. (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 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. (4) The Review Committee constituted by the Central Government under sub-section (1) of section 60 of the principal Act shall, while reviewing cases, have powers of the Civil Court under the Code of Civil Procedure, 1908 (5 of 1908) in respect of the following matters, namely:- (a) discovery and production of any document; (b) requisitioning any public record or copy thereof from any Court or office. (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). 3. Repeal and saving.-(1) The Prevention of Terrorism (Repeal) Ordinance, 2004 (Ord.1 of 2004) is hereby repealed. (2) Notwithstanding such repeal, anything done or any action taken under the said Ordinance shall be deemed to have been done or taken under the corresponding provisions of this Act.” (emphasis supplied) : 15 : 17. We may now turn to the arguments of the Petitioners. According to the Petitioners, from the language of Section 60 in contradistinction to the scope of review enquiry stipulated in Section 2(3) and 2(4) of the Repeal Act, it is materially different. In that, the powers of the Review Committee under Section 60 of the principal Act were limited, unlike the wide powers invested in terms of the provisions of the Repeal Act. Further, the scope of review in terms of Section 60 was limited to find out whether the provisions of POTA have been misused against the concerned accused; whereas as per the provisions of the Repeal Act, 2004, the Review Committee has to consider the cases threadbare by exercising wide powers invested in it and record finding on merits which were not only binding on the Central Government and the Investigating Authority but would result in order of withdrawal or closure of the case, as the case may be, without doing anything further. It was argued that sub-section (3) of Section 2 of the Repeal Act opens with non-obstante clause which is also indicative of the fact that the Review Committee was obliged to re-examine the case of the Petitioners irrespective of the earlier decision by it against the Petitioners. The Review Committee was not only obliged to reconsider the case of the Petitioners irrespective of whether the Petitioners had made any application or not for that purpose, but was also obliged to complete the review within : 16 : one year from the commencement of the Repeal Act. Failure to do so by the Review Committee would entail in withdrawal of the case or closure of the investigation pending against the concerned accused. Further, the objects and reasons for introducing the Repeal Act, 2004 reinforces the position that irrespective of whether the Review Committee had earlier considered the case of the accused, it was obliged to review the case even of such accused after the coming into force of the Repeal Act, 2004-whether or not the accused applies for such review. 18. Insofar as the distinctive features about the scope of review enquiry under Section 60 of the POTA and that of Section 2(3) (4) of the Repeal Act, 2004, is no more res integra. The Apex Court has expounded on that question in the case of Mahmadhusen Abdulrahim Kalota Shaikh v/s. Union of India & ors. reported in (2009) 2 SCC page-1. The scheme of both these enactments has been elaborately dealt with albeit in the context of challenge before the Apex Court. The challenge considered by the Apex Court was whether the effect of the amendment was to make any directions issued by the Review Committee about the existence or non- existence of prima-facie case for proceeding against the accused in POTA binding on the Central Government as well as State Government and the : 17 : Police Officer investigating the offence. In Paragraph 33 of the reported Judgment, the Court formulated the questions which arose for its consideration. The same read thus:- “33. On the contentions urged the questions that arise for our consideration are: (i) Whether Sub-section (3) & (5) of Section 2 of the Repealing Act are unconstitutional and therefore invalid; and (ii) Having regard to Section 2(3) of the repealing Act, when the Review Committee records an opinion that there is no prima facie case for proceeding against the accused under POTA, whether the proceedings shall be deemed to have been withdrawn against such accused or whether it is necessary for the Public Prosecutor to file an application seeking consent of the court for withdrawal from prosecution under Section 321 of the Code.” The Court on analysing the scheme of the relevant provisions concluded that the scheme of Section 2(3) of the Repeal Act does not contemplate or provided for further application of mind by the public prosecutor or grant of consent by the Court under Section 321 of the Criminal Procedure Code. Suffice it to observe that this decision is not an authority on the proposition that inspite of a valid review already undertaken by the Central Review Committee under Section 60 of the principal Act, the Committee is required to undertake review of even those cases afresh for the second time on account of the provisions of the Repeal Act. 19. Thus, the crucial issue for answering the controversy on hand is: : 18 : whether the purpose of review of cases under Section 60 of the POTA is materially different than the review provided under Section 2(3) of the Repeal Act. And for that reason, whether it necessitated reconsideration and fresh review of all cases pertaining to offence of POTA irrespective of the fact that the same have already been considered by the Central Review Committee constituted under Section 60 of the POTA before coming into force of the Repeal Act. 20. Notably, the purpose of review in both these enactments is identical, namely, to ascertain whether there is a prima-facie case for proceeding against the accused under the principal Act. Indeed, in the Repeal Act, the Review Committee has been invested with powers of Civil Court under the Code of Civil Procedure, 1908 in respect of discovery and production of any document; requisitioning any public record or copy thereof from any Court or office, as is provided by sub-section (4) of Section 2 of that Act. That does not make any difference to the purpose of the review of the case registered under the principal Act against the accused. 21. Similarly, it matters not that under Section 60 of the POTA, the Review Committee, after recording its opinion, could issue directions which : 19 : would bind only the Government and the Police Officer investigating the offence; whereas the provisions of Repeal Act provides that the case pending before the Court shall be deemed to have been withdrawn and if pending investigation shall be closed