[20081 16 S.C.R. 900

A ANUSUYABEN SADASHiV JADAV AND ANR. ''jv.

UNION OF INDIA AND ORS. (Crl. M.P. No. 5643-5647 of 2007)

DECEMBER 1, 2008

[K.G. BALAKRISHNAN, CJ., R.V. RAVEENORAN AND

t>ALVEER BHANDARI; JJ.] -f-

BAIL: c Applications for bail by accused of POTA and oth(3r offences - HELD: In the light of judgment of Supreme Court upholding constitutionality of ss.2(3) and (5) of Prevention of Terrorism (Repeal) Act and the deemed withdrawal of cases

D under POTA; bail applications filed by accused have to be considered afresh - In all these cases wherever Review Committee has recorded its opinion that.there is no prima -4 facie case for proceeding against accused, they are not to be tried under provisio(ls of. POTA - However,· these accused

E have also been charged with several non-PO TA offences and these offences will have to be -tried by regular Sessions .

Judges (or CBI Court) - By virtue of Section 33 of the PO TA, the Sessions Judge has to proceed with these cases as if he had taken cognizance of these offences - The POTA Special

F Judges before whom cases of applicants are. pending are directed to send all those cases to respective Sessions Judge within a period of one month of receipt of a copy of this order

- This is subject to the order, if ariy, that may be passed by any competent court against the opinion of Central POTA Review Committee- All these petitions/applications for bail!

G fmpleadment are permitted to be withdrawn with liberty to move for bail before the Court of Session concerned after the ,;>..._ records are received on transfer - In the event of filing such applications, Sessions Judge shall consider the same on merits untrammelled by the observations, if any, made by H 900

superior courts in' liny bail application filed by the respective A petitioners - POTA Case No.12 against Crime N0.6 of 2003 in the Crime Branch, Ahmedabad city and POTA Case No.10 against Crime No.272103 in Ellisbtidge Police Station, C.B.I.

Court, on transfer are to be tried by the Sessions Judge having jurisdiction - It has been stated that these petitioners B are und{Jr-trial prisoners since April, 2003 - The respectivf!

Sessions Judge will consider this fact and dispose of the matters as expeditiously as possible - Prevention of Terrorism Act, 2002 - s.33 - Prevention of Terrorism (Repeal) Act, 2004 - ss. 2(3) and (5) - Transfer of cases pending before c

Special Courts under POTA to regular Court of Session.

CRIMINAL APPELLATE JURISDICTION : Crl. M.P. Nos. 5643-5647 of 2007.

Criminal Appeal Nos. 1651-1652 of 2008.

WITH

Crl. M.P. No. 4506/2007@ Crl. A. No.1113/2005, 5639-5642, 564a-49/2007, 5981-5986/2007, 8315/2007 and 15724-15725/ E 2008 IN Crl.A. Nos.1651-1652/2008.

Sheela Goel for the Petitioners.

Sushil Kumar, Sandhya Goswami (for B.K. Prasad) Sushma Suri, P. Parmeswaran, Hemantika Wahi, Pinky Behra, F K. Enatoli Serna, Somnath, Kamini Jaiswal, Nitya Ramakrishnan, Trideep Pais (for M/S. K.J. John & Co.) for the Respondents.

The following Order of the Court was delivered :

ORDER

CRL.M.P.NOS.4506/2007@ CRL.A.No.1113/2005, CRL.

M.P. NOS.5639, 5640, 5641 AND 5642 OF 2007 @ CRL.A.NOS.1651-1652/2008, which are connected cases, are H

902 SUPREME COURT REi=>bFff§

A also taken on board, at the ftjuest of learned counsei.

2. These are tJall applicatit>hstappii'eatiofi§ fGr impleadment by the accused petitioners filed in POT A/criminal cases pending on the files of Special POTA Judge; Sabarmati, Ahmedabad and other co.urts in regard Hf f'QTA cases B registered with Godhra police station, Crime Brancll,

Ahmdbaa t?!lty and llisbridge Pol.ice Station, Ahmadabad.

In some oHhese ca§~§. bail §~li@atl9n§ .WE!Jre rejected by the Special Judge and in s6fii@ ~§ses th@ sEim~ were rejected by the High. Court and in some GfH@t §Ei§es by this Court. c 3; Subsequently the Prevefltlsn of T errodsm. (Repeal) Act, 2004 (for short 'the Repealing Act') was enscted. Certain provisions of the said Act were challenged. This Court, by judgment dated 21.15.266~; Uph@ltl the validity 'of Section 2(3) o and (5) of the Repealing Act iiihd alsa jj§ssed the following

directions :

1. "the judgments under challenge ta ttie extent they declare Section 2(3) and (5) of the Repealing Aot are not unconstitutional, are upheld;

2. the judgments undet apeal are set aside to the extent they hold that in spite of deemed withdrawal of the cases, the procedure nder Section 321 of the Code has to be followed for withdrawal;

3. 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;

We do not express any opinion on the merits of the cases of the POT A accused or in regard to the opinions expressed by the Review Committee."

In the light of the said judgment, upholding the deemed withdrawal of cases under POT A, the bail applications filed by H

r t;-l

' \-

the accused have to be considered afresh. In all these cases A wherever the Review Committee has recorded its opinion that there is no prima facie case for proceeding against the accused, the accused are not to be tried under the provisions of the POT A. However, these accused hav~ also been charged in regard to several non-POT A offences and these offences will B have to be tried by regular Sessions Judges (or CBI Court).

By virtue of Section 33 of the POT A, the Sessions Judge has to proceed with these cases as if he had taken cognizance of

these offences.

4. We, therefore, direct the POTA Special Judge, C Sabarmati, Ahmedabad or other courts where the cases of applicants are pending to send all those cases to the respective .

Sessions Judge within a period of one month of receipt of a • copy of this order. This is subject to the order, if any, that may be passed by any competent court against the opinion, of D Central POTA Review Committee.

5. All these petitions/applications for bail/impleadment are , , permitted to be withdrawn with liberty to move for bail before the concerned Sessions Court after the records are received E on transfer. In the event of 1filing such applications, the Sessions Judge shall consider the same on merits untrammelled by the observations, if any, made by the superior courts in any bail application filed by these respective petitioners.·

6. POTA Case No.12 against Crime N0.6 of 2003 in the F Crime Branch, Ahmedabad city and POTA Case No.10 against Ci-ime No.272/03 in Ellisbridge Police Station, C.8.1. Court, on transfer are to be tried by the Sessions Judge having jurisdiction.

7. Learned counsel for the petitioners submit that these petitioners are under-trial prisoners since April, 2003. The respective Sessions Judge will consider this fact and dispose of the matters as expeditiously as possible.

RP.

Matters disposed of.