Mahmadhusen
Abdulrahim Kalota Shaikh Vs. Union of India & Ors. [2008] INSC 1793 (21
October 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1113 OF 2005
MAHMADHUSEN ABDULRAHIM KALOTA SHAIKH ...APPELLANT VERSUS WITH
CRIMINAL APPEAL NOS. 1498-1500 OF 2005 CRIMINAL APPEAL NO. 359 OF 2006 CRIMINAL
APPEAL NO. 734 OF 2007 CRIMINAL APPEAL NOS. 735 OF 2007 CRIMINAL APPEAL NOS.
736 OF 2007 CRIMINAL APPEAL NO. 1651-1652 OF 2008 (ARISING OUT OF S.L.P. (CRL)
NOS. 3015-3016 OF 2005) 2
K.G. BALAKRISHNAN,
CJI. :
1.
Leave
granted in SLP (Crl.) No.3015-3016/2005. The appellants in these two appeals
are the kith and kin of some persons killed in the Godhra Train Burning
incident and in the Akshardham Temple attack. They2 have challenged the
judgment dated 13.4.2005 of the Gujarat High Court in SCA Nos.1103 &
1105/2005 filed by them. For convenience, the appellants in these two appeals
will be referred to as the `relatives of victims'.
2.
The
appellants in Criminal Appeal Nos.1113/2005, 1498- 1500/2005, 359/2006,
734/2007, 735/2007 and 736/2007 are persons who have been charged in respect of
offences under the provisions of the Prevention of Terrorism Act, 2002, in
terrorism related cases. In these appeals, they have also challenged the said
judgment dated 13.4.2005 of the Gujarat High Court in SCA Nos.1103 & 1105
of 2005, and other judgments of the said High 3 Court and the judgment of the
Bombay High Court which follow the said decision. The appellants in these
appeals will be referred to as `POTA accused'.
3.
These
appeals involve questions relating to the constitutional validity as also the
interpretation of section 2(3) and (5) of Prevention of Terrorism (Repeal) Act
2004. While the relatives of victims are aggrieved by the rejection of their
challenge to section 2(3) and (5) of the said Act, the POTA accused are
aggrieved by the direction to read section 2(3) subject to section 321 of Code
of Criminal Procedure, 1973. To appreciate the rival contentions, the reasons
that led to enactment of the Prevention of Terrorism Act, 2002 and its repeal,
require to be noted.
4.
To
meet the challenge of terrorists indulging in wanton killings, arson, looting,
and other heinous crimes in various parts of India, the Terrorist and
Disruptive Activities (Prevention) Act (hereinafter referred to as `TADA') was
enacted by the 4 Parliament in the year 1985. There was widespread criticism
that TADA contained some draconian provisions.
5.
The
constitutional validity of TADA was challenged before 3 SCC 569. It was
contended before this Court that many of the stringent provisions of TADA were
likely to be abused by the police. In particular, it was submitted that the
provisions relating to confession made to the police may lead to illegal
extraction of confessions by the police; and that the provision relating to
grant of bail were violative of human rights and the fundamental rights
guaranteed by the Constitution of India. While upholding the constitutional
validity of TADA, this Court observed that it was necessary to ensure that the
provisions of the Act were not misused by the security agencies/Police. Certain
guidelines were set out to ensure that confessions obtained in pre-indictment
interrogation by the police will be in conformity with principles of
fundamental fairness. This Court also indicated that the Central Government
should take note of those guidelines by incorporating them in TADA and the
rules framed thereunder by 5 appropriate amendments. This Court also held that
in order to prevent the misuse of the provisions of TADA, there must be some
Screening or Review Committees. In the lead judgment, Pandian, J. held (para
265) :
"In order to
ensure higher level of scrutiny and applicability of TADA Act, there must be a
screening Committee or a Review Committee constituted by the Central Government
consisting of the Home Secretary, Law Secretary and other secretaries concerned
of the various Departments to review all the TADA cases instituted by the
Central Government as well as to have a quarterly administrative review,
reviewing the States' action in the application of the TADA provisions in the
respective States, and the incidental questions arising in relation thereto.
Similarly, there must be a Screening or Review Committee at the State level
constituted by the respective States consisting of the Chief Secretary, Home
Secretary, Law Secretary, Director General of Police (Law and Order) and other
officials as the respective Government may think it fit, to review the action
of the enforcing authorities under the Act and screen the cases registered
under the provisions of the Act and decide the further course of action in
every matter and so on."
6.
In
1995, TADA was allowed to lapse. A few years later, the Prevention of Terrorism
Ordinance, 2001, was promulgated on 24.10.2001, followed by Prevention of
Terrorism (Second) Ordinance promulgated on 30-12-2001. In 2002, the Prevention
of Terrorism Act, 2002, (`POTA' for short) was enacted replacing the Prevention
of Terrorism (Second) Ordinance, 2001. Section 6 60 of POTA provided for
constitution of Review Committees to discharge the functions specified in sections
19(4), 40 and 46 of POTA. The said section is extracted below :
"60. Review
Committee : (1) The Central Government and each State Government shall,
whenever necessary, constitute one or more Review Committee 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.
7.
POTA
was amended by the Prevention of Terrorism (Amendment) Ordinance, 2003, promulgated
on 27.10.2003. By the said ordinance sub-sections (4) to (6) were added in
section 60 of POTA entrusting an additional function to the Review Committees.
The said Ordinance was replaced by the Prevention of Terrorism (Amendment) Act
2003 (Act 4 of 2004) which inserted sub-sections (4) to (6) as also further
sub-section (7) in 7 Section 60 with retrospective effect from 27-10-2003. The
sub- sections (4) to (7) of section 60 read as under :
"(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.
(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 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. "
The effect of the
amendment was to make any direction issued by the Review Committee on review,
about the existence of prima 8 facie case for proceeding against the accused
under POTA, binding on the Central Government as well as State Government and
the police officer investigating the offence.
8.
The
constitutional validity of sub-sections (4) to (7) of Section 60 inserted by
the Prevention of Terrorism (Amendment) Act, 2003 was challenged by the
Government of Tamil Nadu in the Madras High Court. It was contended, inter
alia, that enacting a provision that made the decisions of the Review Committee
binding on the State Government was an encroachment upon the power and
authority of the State to prosecute an offender. It was also contended that a
provision that a proceeding pending in a court shall be deemed to have been
withdrawn when the Review Committee opined that there is no prima facie case
for proceeding against the accused, would amount to interference with judicial
functions and encroachment of `judicial power' by the executive, in violation
of the constitutional scheme.
9.
The
High Court of Madras upheld the validity of sub- sections (4) to (7) of Section
60 of POTA. But it further held that the opinion rendered by the Review
Committee would not result in automatic withdrawal of cases pending in court;
that as the opinion was binding on the State government, the State government
was bound to instruct the Public Prosecutor to withdraw the prosecution under
Section 321 of the Code; that the public prosecutor should apply his mind and
then file an application seeking the consent of the court; and that only on
such consent being given, the proceedings shall stand withdrawn. The High Court
held:
"The exercise of
power by the Review committee cannot be termed as scuttling the judicial
process... Criminal cases are deemed to be pending and can be concluded only on
the delivery of judgment. Upto that stage, the prosecution can always be
withdrawn subject to such limitations as are prescribed in section 321 Cr.PC.
... A plea made to the Public Prosecutor to withdraw the proceedings cannot be
construed as an encroachment on the judicial power. At any stage before the
pronouncement of the judgment in a criminal case, the State Government can
instruct the Public Prosecutor to withdraw the prosecution. In POTA also, the
State Government can exercise such power. But if it is not willing to do so, it
does not bar the Review Committee exercising the powers under Section 60
thereof and the Review Committee can always decide as to whether, in its
opinion, the case is a fit one to proceed further even if it is in part-heard
stage. If the Review Committee comes to the conclusion that the case is fit to
be withdrawn from prosecution under POTA, it can address the State Government,
which, in turn, has to instruct the Public 1 0 Prosecutor to invoke section
321 of Code of Criminal Procedure. The role of Review Committee is limited only
that far and no further. When the role of the Review Committee ends, then it is
for the Public Prosecutor to apply his mind independently according to the well
settled legal principles interpreting section 321 of Code of Criminal Procedure
and ultimately it is for the Special Court trying the cases to decide whether
the plea of the Public Prosecutor to withdraw the prosecution, if made, is
acceptable or not..... It is only section 321 of Cr.PC, which is applicable for
withdrawing prosecution under POTA. Hence, we hold that upto the stage of
formulating an opinion regarding prima facie case under POTA, the Review
Committee's decision, one way or the other, cannot amount to interference in
the judicial process."
10.
The
State of Tamil Nadu challenged the judgment of the Division Bench of Madras
High Court by filing Special Leave Petition before this Court. While dismissing
the Special Leave Petition on 8-3-2004 this Court observed as follows :-
"By the amendment, the decision of the Review Committee is made binding on
the Central Government, State Governments and the Police Officers investigating
the offence. The High Court has held, in our-view correctly, that these
amendments are based on the recommendations made State of Punjab reported in
(1994) 3 SCC 569 and the 610. These are the provisions which provide safeguards
against misuse of' the stringent provisions of such an Act.
In our view, the High
Court has correctly held that the challenge cannot be sustained. The High Court
has also correctly held that the directions given by the Review Committee could
only be subject to Section 321 of the Criminal Procedure Code".
11.
In
view of adverse reports about the misuse of the provisions of POTA in some
States, the Parliament repealed POTA, by the Prevention of Terrorism (Repeal)
Ordinance, 2004 promulgated on 21.9.2004, later replaced by Prevention of
Terrorism (Repeal) Act, 2004 (`Repealing Act' for short). Section 2 of the
Repealing Act reads as follows :- "2. Repeal of Act 15 of 2002 and Saving
: The Prevention of Terrorism Act, 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 proceeding 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 1 2 Principal Act after the expiry of the period of one year from the
commencement of this 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 a
civil Court under the Code of Civil Procedure, 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)."
12.
The
provisions of sub-sections (3) and (5) of section 2 of the Repealing Act were
challenged before the High Court of Gujarat, by the relatives of victims. By
judgment dated 13.4.2005, the High Court upheld the constitutional validity of
the said provisions of the Repealing Act. The High Court was of the view that
the provisions of section 2(3) of the Repealing Act were similar to the
provisions of section 60(4) to (7) of POTA.
Therefore following
the decision of Madras High Court relating to the validity of section 60(4) to
(7) of POTA, it held that section 2(3) of the Repealing Act did not dispense
with the requirements of Section 321 of the Code; and where the Review
Committee, in regard to any case where cognizance had been taken by the court,
held that there was no prima facie case for proceeding against the accused
under the provisions of POTA, such opinion of the Review Committee will not
have the effect of deemed withdrawal of the case from the court, until the
procedure prescribed in section 321 of the Code was complied with. The said
conclusion was based on the following reasoning :
1 4 "When the
Parliament enacted the Repeal Act, it was aware of the fact that the Division
Bench of the Madras High Court had made sub-section (7) of section 60 of the
2002 Act subject to section 321 of the Code and the view of the Madras High
Court had been expressly approved by the Supreme Court and yet it did not
choose to exclude the applicability of section 321 of the Code from the scheme
of section 2(3) of the Repeal Act. Rather, the language of sub- section (7)
read with section 4 of the 2002 Act was substantially retained in the Repeal
Act. Thus, the Parliament will be deemed to have accepted the interpretation
placed by the Madras High Court on the provisions of sub-sections (4) to (7) of
section 60 from the scheme of section 2 of the Repeal Act is in our opinion,
inconsequential because the language of sub-section (3) of section 2 thereof is
substantially similar to sub-section (7) of section 60 of the 2002 Act, in so
far as they provide for deemed withdrawal of the pending cases under the 2002
Act.
13.
Consequently,
the High Court prescribed the following procedure : that the Review Committee
shall forward its opinion to the Public Prosecutor appointed under Section 28
of POTA for being placed before the Special Court; that the Public Prosecutor
shall then file appropriate application under Section 321 of the Code alongwith
the opinion of the Review Committee and other relevant records without any
delay; and that the Special Court will then pass appropriate orders by giving
due weightage to the opinion of the Review Committee, keeping in view the
observations of this Court in R.M. TIWARI ADVOCATE 1 5 (1996) 2 SCC 616.
14.
We
may refer to section 321 of the Code and the observations of this Court in
R.M.Tiwari and Shaheen Welfare Association referred to by the High Court at
this stage. Section 321 of the Code relates to withdrawal from prosecutioin. The
relevant portion thereof reads thus :
"The public
prosecutor or Assistant Public Prosecutor in charge of a case may, with the
consent of the court at any time before the judgment is pronounced, withdraw
from the prosecution of any person either generally or in respect of any one or
more of the offences for which he is tried; ..." In R.M.Tiwari (supra), a
case under TADA, this court observed :
"7. It is,
therefore, clear that the Designated Court was right in taking the view that
withdrawal from prosecution is not to be permitted mechanically by the court on
an application for that purpose made by the public prosecutor. It is equally
clear that the public prosecutor also has not to act mechanically in the
discharge of his statutory function under Section 321 CrPC on such a
recommendation being made by the Review Committee; and that it is the duty of
the public prosecutor to satisfy himself that it is a fit case for withdrawal
from prosecution before he seeks the consent of the court for that purpose.
8. It appears that in
these matters, the public prosecutor did not fully appreciate the requirements
of Section 321 CrPC and made the applications for withdrawal from prosecution
1 6 only on the basis of the recommendations of the Review Committee. It was necessary
for the public prosecutor to satisfy himself in each case that the case is fit
for withdrawal from prosecution in accordance with the settled principles
indicated in the decisions of this Court and then to satisfy the Designated
Court of the existence of a ground which permits withdrawal from prosecution
under Section 321 CrPC.
11. It has also to be
borne in mind that the initial invocation of the stringent provisions of the
TADA Act is itself subject to sanction of the Government and, therefore, the
revised opinion of the Government formed on the basis of the recommendation of
the High Power Committee after scrutiny of each case should not be lightly
disregarded by the court except for weighty reasons such as mala fides or
manifest arbitrariness. The worth of the material to support the charge under
the TADA Act and the evidence which can be produced, is likely to be known to
the prosecuting agency and, therefore, mere existence of prima facie material
to support the framing of the charge should not by itself be treated as
sufficient to refuse the consent for withdrawal from prosecution. It is in this
manner an application made to withdraw the charges of offences under the TADA
Act pursuant to review of a case by the Review Committee has to be considered
and decided by the Designated Courts." Shaheen Welfare Association (supra)
also related to a case under TADA where this court observed :
"The purpose of
constituting such committees was to ensure a higher level of scrutiny regarding
applicability of the provisions of TADA to the case in point. The need for such
committees is amply borne out by the results which have been annexed in the
affidavits filed on behalf of the Union of India before us relating to the
number of cases so reviewed by the Review Committees where it has been found
that the provisions of TADA ought not to have been applied."
15.
The
said decision of the Division Bench of the Gujarat High Court and the decisions
following the said judgment are challenged in these appeals. When these matters
came up before B.P. Singh and H.S. Bedi JJ, on 22.2.2007, being of the view
that the provisions of section 60 of POTA were different from the provisions of
section 2 of Repealing Act, they directed that the matter should be heard by a
larger bench. The reference order (after correcting certain typographical
errors) reads thus :
"It appears that
similar provisions, though not exactly in the same terms, under the earlier
Ordinance and the Amendment Act came up for consideration before the High
Courts in India and one of the judgments was appealed against and was disposed
of by this Court by its order of 8th March, 2004. This Court noticed that by
the amendment of 2002 the decision of the Review Committee is made binding on
the Central Government, the State Governments and the Police Officers
investigating the offence. This Court went on to observe that the High Court
had correctly held that the challenge cannot be sustained. The High Court had
correctly held that the direction given by the Review Committee could only be
subject to Section 321 of the Code of Criminal Procedure.
We notice that by
reason of the amendment of the Prevention of Terrorism Act, the provisions
introduced namely, sub- sections (4) to (7) in Section 60 did provide that if
the Review Committee was of the opinion that there was no prima facie case for
proceeding against the accused and issued directions under sub-Section (4),
then the proceeding pending against the accused shall be deemed to have been
withdrawn from the date of such direction. Whereas sub- section (7) of section
60 inserted by the Amendment Act used 1 8 the words "the proceedings
pending against the accused shall be deemed to have been withdrawn",
sub-Section (3) of Section 2 (of the Repealing Act) refers to two types of
proceedings pending against the accused namely, cases in which cognizance has
been taken by the court and the case which are at the stage of investigation.
It is therefore, submitted before us that whatever may have been the ambiguity
in sub section (7) of Section 60 of the Prevention of Terrorism Act, that
ambiguity has been removed by explicitly providing that even in cases where
cognizance has been taken by the Court they shall be deemed to have been
withdrawn.
To accept the
submission urged on behalf of the appellants, we must hold that the provisions
of the Repealing Act relied upon by the appellants overrides the provisions of
Section 321 of the Code of Criminal Procedure which provides for withdrawal of
prosecutions at the instance of the Public Prosecutor in-charge of the case and
with the consent of the Judge trying the accused.
However, we feel that
in view of the reasons and the observations contained in the earlier order of
this Court disposing of the Special Leave Petitions from the judgment and order
of the High Court of Gujarat, and later from the High Court of Madras, it would
be appropriate if the matters be placed before a larger bench for
consideration."
It is in this
background these matters are placed before this three Judge Bench. We have
heard the submissions of the learned counsel.
16.
According
to the POTA accused, the provisions of section 2 (3) of the Repealing Act are
materially different from the wording of section 60(4) to (7) of POTA. Under
section 2(3) of the 1 9 Repealing Act, the opinion of the Review Committee is
final and conclusive and if the opinion is to the effect that there is no prima
facie case for proceeding against the accused under POTA, the cases in which
cognizance has been taken by the court, shall be deemed to have been withdrawn,
and in cases where investigations are pending, the investigations shall be
closed forthwith. They contend that the clear legislative intent is that after
the repeal of POTA, continuance of any proceedings initiated under POTA in which
cognizance has been taken by the court, shall be subject to the opinion of the
Review Committee under section 2(3) of the Repealing Act and once the Review
Committee holds that there was no prima facie case to continue the proceedings
against the accused, the case shall be deemed to have been withdrawn with
effect from the date of issuance of the direction by such Review Committee. It
is submitted that in such cases, Section 321 of the Code would have no
application and there is neither any need for the Public Prosecutor to file any
application for withdrawal from prosecution, nor any need or occasion for the
court to consider whether consent should be given for such withdrawal from 2 0
prosecution, as the proceedings are deemed to have been withdrawn with effect
from the date of the issuance of the direction by the Review Committee.
17.
The
counsel for the State of Gujarat, on the other hand, contended that the High
Court had rightly held that sub-section (3) of section 2 of the Repealing Act
does not dispense with the requirements of Section 321 of the Code for
withdrawal and that after the Review Committee formed an opinion, the same will
have to be placed before the court by the Public Prosecutor, with an
application and the Court will have to independently consider such application
and come to a conclusion whether it should consent to the prosecution being
withdrawn or not.
18.
The
relatives of victims contend that section 2(3) & (5) of Repealing Act ought
to be declared as unconstitutional on the ground that they amount to
encroachment on the judicial power of the State. Alternatively they supported
the decision of the High Court and contended that once the Special Judge took
cognizance of the offence, the proceedings could be withdrawn 2 1 only under
Section 321 of the Code. It was contended that the Review Committee being
purely a committee appointed by the executive, has no right to determine the
innocence or otherwise of an accused. It was submitted that merely because the
Chairman of the Review Committee is a retired Judge, the Committee does not
become a judicial authority. It was further submitted that the Committee could
only be characterized as an external body and such a Committee cannot be a
clothed with a judicial power to withdraw the pending cases from the Court.
Reference to various decisions of this Court was made wherein this Court
delineated the scope and ambit of Section 321 of the Code. Our attention was
drawn to the following observations of Justice V.R. Krishna Iyer in BALWANT
SINGH "The Court has to be vigilant when the case has been pending before
it and not succumb to executive suggestion made in the form of application for
withdrawal with a bunch of papers tacked on. Moreover, the State should not
stultify the Court by first stating that there is a true case to be tried and
then make a volte face to the effect that on a second investigation the case
has been discovered to be false."
2 2 Reliance was
also placed to the following observations of (CHANDIGARH ADMINISTRATION) &
ORS - (1980) 2 SCC 155:
"When a case is
pending in a criminal court, its procedure and progress are governed by the
Criminal Procedure Code or other relevant statute. To intercept and recall an
enquiry or trial in a court, save in the manner and to the extent provided for
in the law, is itself a violation of the law.
Whatever needs to be
done must be done in accordance with the law. The function of administering
justice, under our constitutional order, belongs to those entrusted with
judicial power. One of the few exceptions to the uninterrupted flow of the
court's process is Section 321 Cr.P.C., 1973. But even here it is the Public
Prosecutor, and not any executive authority, who is entrusted by the Code with
the power to withdraw from a prosecution, and that also with the consent of the
court. We repeat for emphasis. To interdict, intercept or jettison an enquiry
or trial in a court, save in the manner and to the extent provided for in the
Code itself, is lawlessness. The even course of criminal justice cannot be
thwarted by the executive, however, high the accused, however sure government
feels a case is false, however unpalatable the continuance of the prosecution
to the powers-that-be who wish to scuttle court justice because of hubris,
affection or other noble or ignoble consideration.
Justicing, under our
constitutional order, belongs to the judges. Among the very few exceptions to
this uninterrupted flow of the court process is Section 494, Cr.P.C. 1898. Even
here, the Public Prosecutor -not any executive authority- is entrusted by the
Code with a limited power to withdraw from a prosecution, with the Court's
consent whereupon the case comes to a close. What the law has ignited, the law
alone shall extinguish STATE OF BIHAR AND ORS. - (1987) 1 SCC 288 and other 2
3 decisions of this Court taking a similar view, to contend that proceedings pending
in a court, where cognizance has already been taken against the accused, could
be withdrawn only in the manner contemplated in section 321 of the Code and
therefore, there can be no automatic withdrawal from prosecution on the basis
of sub-section (3) of Section 2 of the Repealing Act. It was submitted that the
appointment of the Review Committee and the opinion expressed by such Committee
would only enable the Public Prosecutor to take steps for withdrawal from
prosecution; and that once the Court takes cognizance, the proceedings against
the accused shall have to be continued until the Court give consent to a
withdrawal under section 321 of the Code, on being satisfied that there are
valid grounds for withdrawal from prosecution.
19.
In
so far as Union of India is concerned, we find that there is a slight shift
from the stand taken before the High Court. In the High Court, Union of India
contended that the power of the Review Committee under section 2(3) of the
Repealing Act was subject to section 321 of the Code. In fact, Union's stand
was 2 4 accepted and upheld by the High Court, as is evident from the
following observations of the High Court :
"we are inclined
to agree with the learned Additional Solicitor General that the impugned
provisions should be read in conjunction, with Section 321 of the Code and the
same do not, in any manner, encroach upon the judicial power of the State and
that the opinion formed by the Review Committee on the prima-facie nature of
the case under the 2002 Act has to be given due weightage by the Special Court
and accepted unless there are exceptional reasons for not doing so."
But before us the
Union has taken a stand, which in principle supports the contention of the POTA
accused, though the Union has not challenged the decision of the High Court.
The stand of the Union, as set out in its counter is extracted below :
"However, in
view of the difference in language between Section 60(5), 60(6) and 60(7) as
added by POTA (Amendment) 2003 and Sec. 2(3) of the Repeal Act, the issues
raised by the petitioners necessitate examination. It is respectfully submitted
that the language used in sub section 2(3) of the Repeal Act ex-facie reveals
that Section 60(5) of the amended POTA (2003) has been omitted by the
legislature in the provisions of Section 2(3) of the Repeal Act.
Section 60(5) of the
former Act made the opinion of the Review Committee binding on the Central
Government, State Government and the Police Officer investigating the case.
Section 2(3) of the
Repeal Act is a new provision, enacted by the legislature, which provides for
deemed withdrawal of a case (even if cognizance has been taken by the court),
if the Review Committee forms an opinion that there is no prima facie case made
out."
20.
The
learned Additional Solicitor General elaborating upon the said stand submitted
that the power exercised by the Review Committee under section 2(3) of the
Repealing Act, though not subject to the supervising power of the Special court
under section 321 of the Code, is amenable to the power of judicial review of
the High Court under Article 226. He therefore submitted that there are
adequate safeguards against any misuse or abuse of power by the Review
Committee under section 2(3).
21.
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 2 6 the court for withdrawal from
prosecution under Section 321 of the Code.
22.
The
following well settled principles have to be kept in view while examining the
constitutional validity of section 2(3) and (5) of the Repealing Act :
(a) Parliament has
the exclusive competence to legislate on terrorism and terrorist and disruptive
activities which threaten the security, integrity and sovereignty of the
country, as they fall under Entry 1 of List I of the Seventh Schedule to the
Constitution. Alternatively, they would fall under the residuary power
conferred on Parliament under Article 248 read with Entry 97 of List I of
Seventh Schedule (vide Kartar Singh v. State of Punjab - 1994 (3) SCC 569).
(b) There is always a
presumption in favour of the constitutionality of an enactment and the burden
is upon him who attacks it, to show that there has been a clear transgression
of the constitutional principles. (Vide State of Jammu & Kashmir vs.
Triloki Nath Kosha - 1974 (1) SCC 19) 2 7 (c) A law made by the Parliament can
be struck down by courts on two grounds and two grounds alone : (1) lack of
legislative competence; and (2) violation of fundamental rights guaranteed
under Part-III of the Constitution or any other constitutional provision. There
is no third ground. (Vide State of Andhra Pradesh vs. Mcdowell & Co. - 1996
(3) SCC 709).
(d) The power and
competence of Parliament to make laws in regard to the subjects covered by the
legislative fields committed to it, carries with it the power to repeal laws on
those subjects. The power of the Parliament to repeal a law is co-extensive
with the power to enact such a law. (See Justice G.P. Singh's Principles of
Statutory Interpretation - 11th Edition, Page 633).
(e) The Legislature
may prescribe special procedure to meet special situations and to meet special
objectives so long as they are not arbitrary or discriminatory. [Kathi Raning
Rawat v. The State of Saurashtra - 1952 SCR 435 and In Re : The Special Courts
Bill, 1978 - 1979 (1) SCC 380].
(f) If any Central
Act is repealed, without making any provision for savings, the provisions
contained in section 6 of General Clauses Act, 1897 will apply. But where the
2 8 repealing Act itself contains specific provisions in regard to savings, the
express or special provision in the Repealing Act will apply. Section 6 of
General Clauses Act makes it clear that it will not apply, when a different
intention appears in the Repealing Statute. Where the provision relating to
savings is excluded, the repeal will have the effect of complete obliteration
of the statute.
(vide State of Orissa
v. M.A.Tullock & Co. - 1964 (4) SCR 461, Nar Bahadur Bhandari v. State of
Sikkim - 1998 (5) SCC 39 and Southern Petrochemicals Industries Co. Ltd. v.
Electricity Inspector - 2007 (5) SCC 447).
23.
The
Repealing Act contains an exhaustive provision relating to savings in
sub-sections (2) to (5) of section 2. Therefore the savings from repeal will be
governed by section 2(2) to 2(5) of the Repealing Act and not by section 6 of
the General Clauses Act, 1897.
24.
The
Parliament in its plenary power, can make an outright repeal which will not
only destroy the effectiveness of the repealed act in future, but also operate
to destroy all existing inchoate rights and pending proceedings. This is
because the effect of 2 9 repealing a statute is to obliterate it completely
from the record, except to the extent of savings. If the Parliament
specifically excludes any saving clause in a Repealing Act, or severely
abridges the provision for savings, which it has the power to do, the effect
would be that after the repeal of the statute, no proceeding can continue, nor
can any punishment be inflicted for violation of the statute during its
currency. When Parliament has the power to repeal a law outright without any
savings and thereby put an end to all pending prosecutions and proceedings
forthwith (without any need to comply with section 321 of the Code), can it be
said that it does not have the power to make a provision in the Repealing Act
for the pending proceeding to continue, but those proceedings to come to an
end, when a duly constituted Review Committee with a sitting or retired Judge
of the High Court as Chairman, reviews the cases registered under the repealed
Act and reaches the opinion that there is no prima facie case for proceeding
against the accused ? Surely, the wider and larger power includes the narrower
and smaller power. It should be remembered that continuation of a proceedings
in respect of any offence under an Act, after the repeal of such Act, 3 0 is
itself as a result of a deeming fiction. Natural consequence of repeal, as
noticed above, is complete obliteration including pending proceedings.
Continuation of a pending proceeding is possible only on account of the deeming
fiction created by the savings clause in the Repealing Act which provides for
continuation of the proceedings as if the Principal Act had not been repealed.
Therefore any provision in the Repealing Act for saving a pending proceeding,
with any further provision for termination of such pending proceedings, is a
provision relating to `winding up' matters connected with the Repealed Act. By
no stretch of imagination such a provision can be termed as interference with
judicial power, even assuming that such a provision in a live unrepealed statute
may be considered as interference with judicial power. It is therefore
unnecessary to examine whether section 2(3) of the Repealing Act is an
encroachment of judicial power, though such an examination was done with
reference to the challenge to section 60(4) to (7) of POTA. Many tests applied
for deciding the constitutional validity of live and current statutes, may not
apply to `winding up' provisions in a savings clause of a Repealing Act,
dealing with 3 1 repeal. The Parliament has the legislative competence to make
the Repealing Act. The Repealing Act repeals POTA and provides for certain
savings from repeal, to meet the special features of the repealed statute. It
does not violate any constitutional provisions.
Hence the Repealing
Act and in particular section 2(3) and (5) thereof are valid and
constitutional.
25.
This
takes us to the second question as to the true import of section 2(3) of the
Repealing Act. Sub-section (2) of section 2 of the Repealing Act makes it clear
that the repeal of POTA will not affect any investigation or legal proceeding
in respect of any penalty or punishment under the principal Act, and any such
investigation or legal proceedings may be instituted or continued, as if the
principal Act had not been repealed. The proviso to sub-section (2) of section
2 makes it clear that 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 the Repealing Act. The Repealing Act came into force on 21.9.2004 and the
period of one year from the date of repeal having also elapsed, no fresh
offence punishable 3 2 under the POTA can be taken cognizance of by the court
from 21.9.2005. Certain further provisions are made in regard to pending
proceedings in sub-section (3) of section 2 [sub- sections (4) and (5) of
section 2 of the Repealing Act are merely supplemental to sub-section 93) of
section 2 and have no existence independent of section 2(3)]. Sub-section (3)
provides that notwithstanding the repeal of Section 60 of the principal Act,
the Review Committee constituted by the Central Government under sub-section
(1) of Section 60, shall review within one year from the commencement of the
repealing Act, all cases registered under the principal Act as to whether there
is a prima facie case for proceeding against the accused thereunder; and where
the Review Committee is of the opinion that there is no prima facie case for
proceeding against the accused, then, in cases in which cognizance has been
taken by the Court, the 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 by such
Review Committee.
Section 2(3) of the
Repealing Act does not contemplate or 3 3 provide for compliance with section
321 of the Code, before the withdrawal comes into effect. The clear intention
of section 2(3) of the Repealing Act is that when the Review Committee opines that
there is no prima facie case for proceeding against the accused, on review of
the pending POTA cases, such cases, even though cognizance has been taken by
the court, shall be deemed to have been withdrawn without anything further to
be done. In view of expression of such clear legislative intent in section 2(3)
of the Repealing Act, there is no question of bringing section 321 of the Code
into play. If section 321 is held to be applicable, then the provision in
section 2(3) that the cases shall be deemed to be withdrawn, is rendered
nugatory and the cases are not actually withdrawn until the requirements of
section 321 are complied with. That would amount to rewriting section 2(3)
which is clearly impermissible.
26.
The
High Court proceeded on the basis that section 2(3) of the repealing Act is
similar to section 60(4) to (7) of POTA, and therefore it should be interpreted
and dealt with in the same 3 4 manner as section 60(4) to (7) of POTA. It
noted that the Madras High Court had upheld the validity of section 60(4) to
(7) of POTA by holding that the decision of the Review Committee was binding
only on the State Government and the Investigating Officer and not on the
Public prosecutor or the court, and that the procedure prescribed by section
321 of the Code will have to be complied with, even after the decision by the
Review Committee that there was no prima facie case to proceed against the
accused. It held that the said declaration of law would also apply to section
2(3) of the Repealing Act. It therefore upheld the validity of section 2(3) of
the Repealing Act subject to a rider that even where Review Committee has
opined under section 2(3) that there was no prima facie case, the deemed
withdrawal will be subject to fulfilment of the requirements of section 321 of
the Code. But the question is whether the High Courts were justified in
assuming in the impugned judgments that the provisions of section 2(3) of the
repealing Act are similar to sections 60(4) to (7) of POTA, and the decision of
the Madras High Court as upheld by this Court, 3 5 will not apply while
interpreting section 2(3) of the Repealing Act.
27.
The
Madras High Court proceeded on the basis that the exercise of power by the
Review Committee in regard to review of POTA cases, was governed by sub-sections
(4) to (6) of section 60 of POTA. It found that these sub-sections provided
that the decision of the Review Committee on review, was binding only on the
State Government and police officers and not on the public prosecutor or the
court. The Madras High court got over sub-section (7) of section 60 of POTA
(which provided that when the Review Committee opines that there is no prima
facie case, then the proceedings pending against the accused shall be deemed to
have been withdrawn from the date of such direction), by holding that the said
sub-section did not create any new right other than those mentioned in sub-
sections (4) to (6) of section 60, and was only in the nature of an explanation
spelling out the effect of the exercise of the power in sub-sections (4) to (6)
of section 60 of POTA. It held that sub-section (7) of section 60 cannot be
read independently 3 6 by itself. It further held that sub-section (7) of
section 60 of POTA had to be understood only in the context of section 321 of
the Code, to mean that if the Review Committee forms an opinion that the
prosecution of the accused did not attract the provisions of POTA, the State
Government which was bound by the direction, will have to address the Public
Prosecutor to withdraw the prosecution; and as the public prosecutor was not
bound by the direction of the Review Committee, he could formulate his
independent opinion under section 321 of the Code.
28.
But
the scheme of section 2(3) of the Repealing Act is different from the scheme of
sub-sections (4) to (7) of section 60 of POTA. The scheme under sub-sections
(4) to (7) of section 60 under POTA (which applied to proceedings initiated
under POTA when the Act was in force) was as follows : (a) the Review Committee
was required to review a POTA case under section 60(4), only when an
application was made by an aggrieved person; (b) any direction issued by the
Review Committee on such review, was binding on the concerned Government and 3
7 investigating officer, but not the public prosecutor or the court under
section 321 of the Code. The scheme under section 2(3) of the Repealing Act is
categorical. The review by the Review Committee is not dependent upon an
application by any aggrieved person. The Review Committee had to make a general
review of all cases registered under POTA which were pending at the time of
repeal, irrespective of whether an application for review was made by the
accused or not. The purpose of such general review was to identify the cases
where there was no prima facie case for proceeding against the accused, so that
they could be withdrawn. If the Review Committee expressed the opinion that
there is no prima facie case for proceeding against the accused, then the cases
pending in court, even where cognizance has been taken by the court, shall be
deemed to have been withdrawn with effect from the date of issuance of
direction by such Review Committee. The express provision in section 2(3) of
the Repealing Act that even where cognizance has been taken by the court, the
cases shall be deemed to have been with drawn, is not found in section 60(4) to
(7) of POTA.
Once the law made by
the Parliament specifically states that 3 8 wherever the Review Committee is
of the opinion that there is no prima facie case for proceeding against the
accused, the cases shall be deemed to have been withdrawn. If the Parliament
wanted to make the provisions of section 2(3) of the Repealing Act subject to
Section 321 of the Code, it would have been done by making appropriate
provisions there for. As that is not done, plain meaning of the words of the
legislation has to be given effect to.
29.
Section
2(3) of the Repealing Act also contains clear indications which exclude section
321 of the Code. They are : (i) The review is by Review Committee with a
sitting or retired Judge of the High Court as the Chairman, having the power of
a civil court in respect of discovery and production of documents and
requisitioning records. (ii) All cases registered under POTA are required to be
reviewed irrespective of whether any application was made by an aggrieved
person or not, so as to find out whether there is a prima facie case for
proceeding against the accused under POTA; (iii) The sub-section clearly
provides that where a Review Committee opines that there is no 3 9 prima facie
case for proceeding against the accused, cases pending in court also shall be
deemed to have been withdrawn with effect from the date of issuance of such
direction by the Review Committee. The wording is clear and unambiguous and does
not contemplate or provide for a further application of mind by the Public
Prosecutor or grant of consent by the court under section 321 Cr.P.C. We are
therefore of the view that the High Court was not right in assuming that the
decision of the Madras High Court approved by this Court with reference to
section 60(4) to (7) of POTA will apply in regard to section 2(3) of the
Repealing Act.
30.
An
apprehension was expressed that if the review committee reaches a wrong opinion
there will be no remedy. It was pointed out that if section 321 Cr.P.C. was
applicable, there will at least be a judicial scrutiny before the opinion
resulted in withdrawal. The scope of the role played by a court under Section
321 of the Code was explained in SHEONANDAN PASWAN (supra), thus:
4 0 "Since
Section 321 finds a place in this chapter immediately after Section 320, one
will be justified in saying that it should take its colour from the immediately
preceding Section and in holding that this Section, which is a kindred to
Section 320, contemplates consent by the court only in a supervisory manner and
not essentially in an adjudicatory manner, the grant of consent not depending
upon a detailed assessment of the weight or volume of evidence to see the
degree of success at the end of the trial. All that is necessary for the court
to see is to ensure that the application for withdrawal has been properly made,
after independent consideration, by the Public Prosecutor and in furtherance of
public interest. ........ The section does not insist upon a reasoned order by
the Magistrate while giving consent. All that is necessary to satisfy the
section is to see that the Public Prosecutor acts in good faith and that the
Magistrate is satisfied that the exercise of discretion by the Public Prosecutor
is proper."
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 could 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 an one time measure with reference to a
repealed 4 1 statute. The availability of judicial review under Article 226 in
the event of errors and abuse, 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 4 2 Court
where the proceedings were pending, will continue with the case as if there had
been no such opinion.
33.
In
view of the above the appeals are disposed of as follows:
(i) The judgments
under challenge to the extent they declare section 2(3) and (5) of the
Repealing Act are not unconstitutional, are upheld.
(ii) The judgments
under appeal are set aside to the extent they hold that in spite of deemed
withdrawal of the cases, the procedure under section 321 of the Code has to be
followed for withdrawal.
(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.
4 3 (iv) We do not
express any opinion on the merits of the cases of the POTA accused or in regard
to the opinions expressed by the Review Committee.
..............................CJI
(K.G. BALAKRISHNAN) .................................J.
(R.V. RAVEENDRAN] NEW
DELHI;
OCTOBER 21, 2008.
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1113 OF 2005
Mahmadhusen Abdulrahim Kalota Shaikh ..Appellant Versus Union of India &
Others .. Respondents WITH
CRIMINAL APPEAL NOS.1498-1500 OF 2005, CRIMINAL APPEAL NO.359 OF 2006, CRIMINAL
APPEAL NO.734 OF 2007, CRIMINAL APPEAL NOS.735 & 736 OF 2007 AND CRIMINAL
APPEAL NO. 1651-1652 OF 2008 ARISING OUT OF SLP (CRL.) NO.3015- 3016 OF 2005.
Dalveer Bhandari, J.
1.
I
have had the benefit of going through the judgment prepared by Hon'ble the
Chief Justice. I am in agreement with the conclusions arrived at by him,
however, looking to the importance of the matter, I deem it appropriate to add
my reasons for arriving at the same conclusions.
2.
The
relations of those who died in the Godhra incident filed special civil
applications in the High Court of Gujarat, seeking to strike down sections 2(3)
and 2(5) of the Prevention of Terrorism (Repeal) Act, 2004 (for short
"POTA (Repeal) 2004". These sections allow the Central Review Committee
to withdraw pending cases against the alleged accused. The relations of the
victims argued that these sections violated Articles 14 and 21 of the
Constitution, were the antithesis of the rule of law and encroached on the
judicial power of the State. In its judgment, the High Court of Gujarat relied
to a great extent on the judgment of the Madras High Court. On 04.02.2004, in
The Government of Tamil Nadu & Others v. Union of India & Another 2004
(1) CTC 641, the Madras High Court read the thrust of section 321 of the Code
of Criminal Procedure (for short the "Cr.P.C.") into POTA 2002.
3.
The
Madras High Court ordered the Special Court to give "due
consideration" to the Review Committee's decision. A two-Judge Bench of
this Court on 8.3.2004, in a short order while dismissing the special leave
petition arising out of the Madras High Court judgment, upheld the application
under section 321 of Cr.P.C. The said order is reproduced as under:- "the
Special Leave Petitions are filed against the judgment of the High Court challenging
the amendments to the Prevention of Terrorism Act, 2002 which gives to the
Review Committee powers which earlier it did not have. By the amendment, the
decision of the Review Committee is made binding on the Central Government,
State Governments and the Police Officers investigation the offence. The High
Court has held, in our view correctly, that these amendments are based on the
recommendations made by the Constitution Bench of this Court in Kartar Singh v.
State of Punjab reported in (1994) 3 SCC and the judgment of this Court in R.M.
Tiwari v. State (1998) 2 SCC 610. There are the provisions which provide
safeguards against misuse of the stringent provisions of such an Act. In our
view, the High Court has also correctly held that the directions given by the
Review Committee could only be subject to Section 321 of the Criminal Procedure
Code. We, therefore, see no reason to interfere. The Special Leave Petitions
are accordingly dismissed."
4.
The
High Court of Gujarat was dealing with a POTA (Repeal) 2004 question, not POTA
2002, it sought to find language that was pari materia to both statutes. If
the 4 statutes were effectively the same, then the Madras High Court judgment
would be relevant to the Gujarat case.
Moreover, the Gujarat
High Court could argue that the Supreme Court gave its imprimatur of approval.
5.
The
High Court reasoned that section 2(3) of POTA (Repeal) 2004 is pari materia
with section 60(7) read with section 60(4) of POTA 2002. Section 2(3) of POTA
(Repeal) 2004 provides that where the Review Committee is of the opinion that
there is no prima facie case for proceeding against the accused, then, in cases
in which cognizance has been taken by the Court, the cases shall be deemed to
have been withdrawn.
6.
Section
60(7) of POTA 2002 states that where any Review Committee constituted under
sub-section (1) is of opinion that 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. In the High Court's words:
"though, the
language of Sub-section (3) of Section 2 of the Repeal Act is not identical to
that of sub-section (4) read with sub-section (7) of the 2002 Act, it is
substantially pari materia to those provisions inasmuch as the opinion formed
by the Review Committee on the prima- facie nature of the case for not
proceeding against the accused under the 2002 Act has been given primacy and
virtually made conclusive in the scheme of both the provisions.
The only difference
between the scheme of sub- sections (4) to (7) of Section 60 (as amended in the
year 2003) and Section 2(3) of the Repeal Act is that while in the former case
the Review Committee could initiate action on an application made by an
aggrieved person and the direction given by it were treated binding on the
Central Government etc. under sub-section (3) of Section 2 of the Repeal Act
the Review Committee is required to examine all the pending cases registered
under the 2002 Act for determining whether there is a prima-facie case for
proceeding against the accused under the said Act. One starking similarity
between the two sets of provisions is that once the Review Committee forms an
opinion that there is no prima-facie case for proceeding against the accused
under the 2002 Act, the pending cases were treated as automatically withdrawn.
Therefore, keeping in
view the ratio of the judgment of Madras High Court which has been approved by
the Supreme Court, we are inclined to agree with the learned Additional
Solicitor General that the impugned provisions should be read in conjunction,
with Section 321 of the Code and same do not, in any manner, encroach upon the
judicial power of the State and that the opinion formed by the Review Committee
on the prima-facie nature of the case under the 2002 Act has to be given due
weightage by the Special 4 court and accepted unless there are exceptional
reasons for not doing so." (emphasis added]
7.
It
appears as though the Gujarat High Court considered "proceedings pending
against the accused" to include those proceedings in which the Special
Court had taken cognizance of the matter. From this limited interpretation, one
can call the statutes pari materia. It seems that the High Court correctly
downplayed the difference between the Review Committee's having to receive an
application before taking action and the Review Committee's having to take
action immediately and review all pending cases.
8.
Ultimately,
the debate over whether the statutes are pari materia misses the point. If
section 321 of Cr.P.C. itself cannot apply, the issue comes for consideration
is whether or not POTA (Repeal) 2004 encroaches on the jurisdiction and powers
is clearly violative of the concept of the separation of powers. Here, the High
Court neither provides analysis nor support for its conclusion that judicial
review is not affected. Then again, judicial review is only slightly modified
when section 321 of Cr.P.C. has been read into POTA Repeal 2004, as the High
Court did.
That is likely why
the High Court chose not to analyze the question from a judicial review
standpoint. The Special Court still gets the last word, but it now has to give
the Review Committee's decision "due weightage" or it must accept the
Review Committee's opinion "unless there are exceptional reasons for not
doing so." Of course, it is the public prosecutor who is most affected by
the Gujarat High Court's Scheme. He no longer chooses whether to file an
application for withdrawal or not. The Review Committee can compel him to do
so. This is at odds with section 321 of Cr.P.C. That said, it may have been the
High Court's attempt at harmoniously interpreting two competing statutes. The
High Court while concluding observed thus:
"....once the
Review Committee, after hearing the concerned parties and perusing the relevant
records/material forms an opinion that no prima facie case is made out for
proceeding against the accused under the 2002 Act, the Public Prosecutor
appointed under Section 28 of the Act will have to file appropriate
application 5 under Section 321 of the Code without any delay and the Special
Court will be required to pass appropriate order giving due weightage to the
opinion of the Review Committee and keeping in view the observations made by
the (1996) 2 SCC 610 and Shaheen Welfare Association Supreme Court in R.M.
Tiwari' v. State of Delhi v. Union of India (1996) 2 SCC 616"
9.
Before
proceeding, I note that R.M. Tiwari's case was dealt with by a two-Judge Bench.
Several States had constituted Review Committees, to review cases brought under
TADA, 1987. The Committees were appointed in compliance with Kartar Singh v.
State of Punjab (1994) 3 SCC 569. Relying on Sheonandan Paswan v. State of
Bihar & Others (1983) 1 SCC 438 (and other cases that analyzed section 321
of Cr.P.C. in the absence of a statute to the contrary, the Court found that
the Committee's recommendation to withdraw was not binding and was subject to
section 321 of Cr.P.C. This case does not apply to the present dispute because
the Court was not dealing with POTA (Repeal) 2004, whose text expressly states
that the Committee can deem a case withdrawn. Instead, the case was
interpreting the State Review Committee's
interpretation of Kartar Singh's directions, which are ambiguous as to whether
section 321 of Cr.P.C. should apply to the Committee(s) it spawned.
10.
The
Madras High Court took a similar stand but more closely adhered to the case law
that has interpreted section 321 of Cr.P.C. by retaining the public
prosecutor's ability to make an independent decision. The High Court observed
thus:
"The words in
sub-section (7) of Section 60 of POTA, `the proceedings pending against the
accused shall be deemed to have been withdrawn from the date of such direction'
shall have to be understood only in the context of Section 321 of Code of
Criminal Procedure to mean that if the Review Committee forms an opinion that
the prosecution under POTA against the accused respondents does not attract the
provisions of POTA, appropriate directions can be issued to the State
Government and if the directions are in the nature of addressing the Public
Prosecutor to withdraw the prosecution, then such a direction is binding on the
State Government. But the said direction is not binding on the Public
Prosecutor, as under Section 321 Code of Criminal Procedure, he has to
formulate his opinion on his independent application of mind and even if an
application under Section 321 Code of Criminal Procedure is filed, the ultimate
arbiter is the Special Court, which has to consider the matter taking the over
all situation 5 but by giving due consideration to the opinion of the Review
committee..."
11.
Before
turning to the Supreme Court's brief order in which it upheld this case, I must
examine the Madras High Court's reasoning with regard to the issue of
encroachment on judicial power in violation of separation of powers. The Madras
High Court assumes that section 321 of Cr.P.C. applies to POTA. No detailed
analysis is provided - sections 4 and 5 of Cr.P.C. are not raised; nor is the
question as to why Parliament would require two reviews. If I were to assume
that section 321 of Cr.P.C. applies, the question of interference with the
judiciary becomes moot.
12.
It
has become imperative to deal the aspect of removal of judicial review on basic
structure of the Constitution.
DOES REMOVAL OF
JUDICIAL REVIEW, WHICH IS THE CONCEPT BEHIND SECTION 321 Cr.P.C., VIOLATE THE
BASIC STRUCTURE?
13.
While
section 321 of Cr.P.C. itself does not apply, the principle of judicial review
embodied therein does. In other words, section 321 of Cr.P.C. is a codified
version of judicial review. At the trial court level, section 321 of Cr.P.C.
ensures that the judiciary makes the final decision by approving the public
prosecutor's decision to withdraw a case. Even if section 321 of Cr.P.C. is
made inapplicable by a special law like POTA (Repeal) 2004 or POTA 2002,
judicial review still applies. Section 321 of Cr.P.C. is a general provision
that can be subjected to special laws.
14.
On
the other hand, judicial review should not suffer the same fate. A violation of
judicial review is another way of saying that the separation of powers between
the principal three organs of the State have been violated.
Judicial review forms
part of the basic structure of the Constitution. And when judicial review is
removed - even at the trial court level - the question becomes one of degree :
has the basic structure been destroyed? Our short answer is that because POTA
(Repeal) 2004 has not removed judicial review under Article 226 or Article
136, 5 the basic structure has not been destroyed. Given the gravity of this
question, I deem it necessary to explain my reasoning.
15.
The
Courts' powers to grant consent to a prosecutor's request to withdraw exits in
the absence of section 321 of Cr.P.C. This is because in the matter concerning
judiciary, it should have the final say over cases that have been placed before
it. It goes without saying that the Court's decision to grant consent to an
application for withdrawal is a judicial function. If it is granted, the case
is over. Resolving legal disputes is the core function of the judiciary. The
power to take a final decision once a case is before a Court, irrespective of
the stage at which the determination is made, should rest with the judge. To
the extent POTA (Repeal) 2004 takes this decision away from the judge, it
implicates the basic structure doctrine.
16.
This
Court has not had the opportunity to analyze what is behind section 321 of
Cr.P.C. Before POTA, there was no need to ask whether judicial review exists in
the absence of section 321 of Cr.P.C. That is why the cases analyzing section
321 of Cr.P.C. are illustrative of the importance of judicial review, but they
are not on point.
For example, in the
State of Bihar v. Ram Naresh Pandy & Another AIR 1957 SC 389, this Court
observed as under:- "3......The section is an enabling one and vests in
the Public Prosecutor the discretion to apply to the Court for its consent to
withdraw from the prosecution of any person. The consent, if granted, has to be
followed up by his discharge or acquittal, as the case may be. The section
gives no indication as to the grounds on which the Public Prosecutor may make
the application, or the considerations on which the Court is to grant its
consent. There can be no doubt, however, that the resultant order, on the
granting of the consent, being an order of 'discharge' or 'acquittal', would
attract the applicability of correction by the High Court under ss. 435, 436
and 439 or 417 of the Code of Criminal Procedure. The function of the Court,
therefore, in granting its consent may well be taken to be a judicial function.
It follows that in granting the consent the Court must exercise a judicial
discretion...."
As far back as 1957,
this Court recognized that the High Court could still correct the trial court's
decision to withdraw.
17.
In
Sheonandan Paswan's case (supra), a three- Judge Bench of this Court stated:
"89........The
exercise of the power to accord or withdraw consent by the Court is
discretionary.
Of course, it has to
exercise the discretion judicially. The exercise of the power of the Court is
judicial to the extent that the Court, in according or refusing consent, has to
see (i) whether the grounds of withdrawal are valid; and (ii) whether the
application is bona fide or is collusive....."
A Constitution Bench
in Sheonandan Paswan v. State of Bihar (1987) 1 SCC 288 referred to and
approved the above judgment.
SEPARATION OF POWERS
IS PART OF THE BASIC STRUCTURE:
18.
In
His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala &
Another (1973) 4 SCC 225, the Court opined that separation of powers is a part
of the basic structure of the Constitution of India.
(1973) 4 SCC 225, per
Sikri, C.J., as paras 292 and 293, per Shelat and Grover JJ at para 582 -
"Demarcation of power between the legislature, the Executive and the
Judiciary".
19.
I
need not dwell on the fact that the separation of powers is part of the basic
structure. This has been well established in a plethora of cases. [See: S.R.
Bommai & Others v. Union of India & Others (1994) 3 SCC 1, Per
Chandrachud, J. at 2742, per Beg. J. at 2426-30, 2472, per Ray, C.J., at 2320;
State of Bihar & Another v. Bal Mukund Sah & Others (2000) 4 SCC 640 (para
32); I.R. Coelho (Dead) by LRs v. State of Tamil Nadu (2007) 2 SCC 1; Indira
Nehru Gandhi v. Raj Narain, 1975 (Suppl) SCC 1;
Minerva Mills Ltd.
& Others v. Union of India & Others (1980) 3 SCC 625; Sub-Committee on
Judicial Accountability v. Union of India & Others (1991) 4 SCC 699;
I. Manilal Singh v.
Dr. H. Borobabu Singh & Another 1994 Supp. (1) SCC 718; Union of India v.
Association for Democratic Reforms & Another (2002) 5 SCC 294; Special
Reference No.1 of 2002, In re (Gujarat Assembly Election matter), (2002) 8 SCC
237; Pratap Singh v. State of 5 Jharkhand & Another (2005) 3 SCC 551;
Rameshwar Prasad & Others (VI) v. Union of India & Another (2006) 2 SCC
1; Kuldeep Nayar & Others v. Union of India & Others (2006) 7 SCC 1;
Raja Ram Pal v. Hon'ble Speaker, Lok Sabha & Others (2007) 3 SCC 184.
20.
However,
our Constitution does not envisage a strict separation of powers. There is
separation by necessary implication. In fact, the Constituent Assembly negated
strict separation of powers. Amendment 40 was proposed. It read, "40-A.
There shall be complete separation of powers as between the principal organs of
the State viz.
the Legislative, the
Executive, and the Judicial." This was resisted by Dr. Ambedkar and others
on the ground that what was required was a harmonious governmental structure
and not a strict or complete separation of powers [See Constitution Assembly
Debates, Vol.VII, p.959].
21.
From
the very beginning, the Supreme Court has recognised the existence of an
implied separation of powers. See: In Re Delhi Laws Act, 1912, Ajmer- Merwara
(Extension of Laws) Act, 1947 v. Part `C' States (Laws) Act, 1950 (Reference
under Article 143 of the Constitution of India) AIR 1951 SC 332; Rai Sahib Ram
Jawaya Kapur & Others v. State of Punjab, AIR 1955 SC 549 : (1955) 2 SCR
225 and Ram Krishna Dalmia & Others v. Justice S.R. Tendolkar & Others
AIR 1958 SC 538.
22.
With
each organ of the State overseeing its sphere of control, the Court has had
occasion to protect the judiciary from executive and/or legislative
encroachment. Where judicial review is curbed or outrightly removed, the Court
may review the constitutional validity of such an action.
23.
Indira
Nehru Gandhi case (supra) provided one of the occasions in which separation of
powers was invoked.
In response to this
judgment, the Parliament passed the Election Laws (Amendment) Act, 40 of 1975.
This Act, 6 inter alia, provided that services rendered by government servants
shall not be deemed to be in furtherance of the candidate's election. Shortly
thereafter, Parliament passed the 39th Amendment by which, inter alia, Article
329A was inserted into the Constitution. [Para 3]. Article 329A(1) and (2)
provided that, in the future, a Prime Minister's election to either House of
Parliament could not be questioned by the judiciary. [Paras 5-6].
24.
Article
329(A)(4) stated that no election laws apply or shall be deemed to have applied
to Parliamentary elections. [Para 8]. In addition, it nullified any court order
that had voided an election. [Para 8]. Article 329(A) (5) directed the Court to
dismiss any appeal pending before the Supreme Court consistent with 329(A)(4).
[Para 9]. Article 329(A)(6) stated that the provisions of 329 would go in
effect notwithstanding anything contained in the Constitution. [Para 10].
25.
The
Court struck 329A(4), holding it in violation of the basic structure. Article
329(A)(4) appropriated the Court's power to adjudicate election laws,
encroaching on the judiciary in violation of separation of powers. In voiding
this part of the 39th Amendment, the Court declared that separation of powers
and judicial review (by necessary implication) are part of the basic structure
because of the retrospective effect of the Election Laws (Amendment) Act, 40 of
1975. I turn to a number of relevant passages for further guidance:- "Para
60: (Ray, C.J.) It is true that no express mention is made in our Constitution
of vesting in the judiciary the judicial power as is to be found in the
American Constitution. But a division of the three main functions of Government
is recognised in our Constitution.
Judicial power in the
sense of the judicial power of the State is vested in the Judiciary. Similarly,
the Executive and the Legislature are vested with powers in their spheres.
Judicial power has lain in the hands of the Judiciary prior to the Constitution
and also since the Constitution. It is not the intention that the powers of the
Judiciary should be passed to or be shared by the Executive or the Legislature
or that the powers of the Legislature or the Executive should pass to or be
shared by the Judiciary.
Para 64: (Ray, C.J.)
"Clause 5 in Article 329-A states that an appeal against any order of any
court referred to in Clause 4 pending, before the commencement of the
Constitution (Thirty-ninth Amendment) Act, 1975, before the Supreme 6 Court,
shall be disposed of in conformity with the provisions of Clause 4. The appeal
cannot be disposed of in conformity with the provisions of Clause 4 inasmuch as
the validation of the election cannot rest on Clause 4."
26.
I
note that the very fact that the Court did not dispose of the appeal by writing
a summary order citing to Clause 5 shows that the Court dismissed outright the
Parliament's attempt to remove a pending appeal from the Court's purview. By
holding Article 329(A)(4) unconstitutional, Clause (5) became moot. Justice
Chandrachud, as he then was, recognized this technical point and held both
Clauses (4) and (5) unconstitutional.
The others did not
seem it necessary to deal with Clause (5). [see Khanna, J. at para 185]
27.
At
para 688, Justice Chandrachud further expounded the doctrine of separation of
powers:
"I do not
suggest that such an encroaching power will be pursued relentlessly or
ruthlessly by our Parliament. But no Constitution can survive without a
conscious adherence to its fine checks and balances. Just as Court ought not to
enter into problems entwined in the "political thicket", Parliament
must also respect the preserve of the courts. The principle of separation of
powers is a principle of restraint which "has in it the precept, innate in
the prudence of self-preservation (even if history has not repeatedly brought
it home), that discretion is the better part of valour" Social Dimensions
of Law and Justice-Julius Stone (1966). p. 668.] Courts have, by and large,
come to check their valorous propensities. In the name of the Constitution, the
Parliament may not also turn its attention from the important task of
legislation to deciding court cases for which it lacks the expertise and the
apparatus. If it gathers facts, it gathers facts of policy. If it records
findings, it does so without a pleading and without framing any issues. And
worst of all, if it decides a Court case, it decides without hearing the
parties and in defiance of the fundamental principles of natural justice."
28.
This
raises the issue of the Review Committee's competence to decide the court case.
Even a ruling wherein prima facie cases are withdrawn, the decision to withdraw
is final and terminates the case in favour of the accused. A case has thus been
decided. The question regarding the Committee's competence loses some relevance
when I consider that the aggrieved party could still file an appeal against
such a decision. Nevertheless, 6 the Review Committee is an executive body
that is making a judicial decision.
29.
The
Executive appoints the Review Committee. A majority of its members belong to
the Executive Branch.
Under POTA (Repeal)
2004, the Executive's Review Committee has the power to decide cases. Thus,
judicial review has been implicated. Given that judicial review forms part of
the basic structure, it is our job to determine if POTA (Repeal) 2004 has gone
too far.
30.
In
order to reach its decision, the Review Committee can conduct discovery. It has
the power to compel parties to produce any document. In addition, it can
requisition any public record pursuant to the Code of Civil Procedure, 1908.
31.
Despite
its access to the relevant information, it is not a court and could be more
easily swayed by political considerations. Owing allegiance to the Executive,
the Review Committee could be tempted to decide the outcome of a case based on
that which is politically expedience.
After all, it is an
Executive body that is performing a purely judicial decision. At para 689
(Chandrachud, J. as he then was) observed that:
"...The
"separation of powers does not mean the equal balance of powers".
says Harold Laski, but the exercise by the legislature of what is purely and
indubitably a judicial function is impossible to sustain in the context even of
our co-operative federalism which contains no rigid distribution of powers but
which provides a system of salutary checks and balances.
32.
Ultimately,
at para 696, Justice Chandrachud held:
"...that clauses
(4) and (5) of Article 329A are unconstitutional and therefore void...."
Justice Khanna at para 213 finds 329A(4) to violate the principle of free and
fair elections. Embedded within this principle is the idea that a forum must be
provided for the resolution of the dispute.
"As a result of
the above. I strike down Clause (4) of Article 329A on the ground that it
violates the principle of free and fair elections which is an essential
postulate of democracy and which in its turn is a part of the basic structure
of the Constitution inasmuch as (1) it abolishes the forum without providing
for another forum for going into the dispute......"
33.
Citing
the decisions of foreign countries wherein election disputes are resolved by
the Legislature itself, Justice Khanna did not strike the amendment on the sole
ground that it failed to provide for a judicial forum;
instead, other forums
would have also been acceptable.
[paras 198 and 207].
His concern was that no forum whatsoever was provided. In the instant case, a
judicial forum - the High Courts and the Supreme Court - is there for those who
are aggrieved by the Review Committee's decision.
34.
Justice
Mathew's opinion shows how judicial review is necessarily linked to the
separation of powers doctrine.
By stripping the
Court of judicial review of election cases, Article 329A(4) bestows a power on
an organ of government that is incapable of providing a just result.
Justice Mathew stated
at para 325 that:
"...it was an
essential feature of democracy as established by the Constitution, namely,
(that there should be a) a resolution of an election dispute by an authority by
the exercise of judicial power by ascertaining the adjudicative facts and
applying and applying the relevant law for determining the real representative
of the people."
35.
At
para 327, Justice Mathew holds Article 329A(4) unconstitutional, in violation
of the separation of powers.
Given that our
separation of powers is somewhat flexible, he finds that the Parliament could
only remove judicial review by enacting a constitutional amendment. Para 327
reads as under:- "...The amending body, though possessed of judicial
power, had no competence to exercise it, unless it passed a Constitutional law
enabling it to do so. If, however, the decision of the amending body to hold
the election of the appellant valid was the result of the exercise of an
'irresponsible despotic discretion' governed solely by what it deemed political
necessity or expediency, then, like a bill of attainder, it was a legislative
judgment disposing of a particular election dispute and not the enactment of a
law resulting in an amendment of the Constitution.
And, even if the
latter process (the exercise of despotic discretion) could be regarded as an
amendment of the Constitution, the amendment would damage or destroy an
essential feature of democracy as established by the Constitution, namely, the
resolution of election dispute by an authority by the exercise of judicial
power by ascertaining the adjudicative facts; the amending body cannot gather
these facts by 6 employing legislative process; they can be gathered only by
judicial process."
36.
In
Minerva Mills (supra), section 55 of the 42nd Amendment was at issue. Section
55 inserted sub-section (4) and (5) into Article 368 to bar judicial review of
constitutional amendments. The Court held that Section 55 of the 42nd Amendment
was beyond the amending power and was void "since it removes all
limitations on the power of Parliament to amend the Constitution and confers
powers upon it to amend the Constitution so as to damage or destroy its basic or
essential features or its basic structure." Justice Bhagwati, as he then
was, struck the Parliament's attempt to immunize all amendments from judicial
review:
"...So long as
Clause (4) stands, an amendment of the Constitution though unconstitutional and
void as transgressing the limitation on the amending power of Parliament as
laid down in Kesavananda Bharati's case, would be unchallengeable in a court of
law. The consequence of this exclusion of the power of judicial review would be
that, in effect and substance, the limitation on the amending power of
Parliament would, from a practical point of view, become non-existent and it
would not be incorrect to say that, covertly and indirectly, by the exclusion
of judicial review, the amending power of Parliament would stand enlarged,
contrary to the decision of this Court in Kesavananda Bharati's case. This
would undoubtedly damage the basic structure of the Constitution, because there
are two essential features of the basic structure which would be violated,
namely, the limited amending power of Parliament and the power of judicial
review with a view to examining whether any authority under the Constitution
has exceeded the limits of its powers, I shall immediately proceed to state the
reasons why I think that these two features form part of the basic structure of
the Constitution."
37.
L.
Chandra Kumar v. Union of India (1997) 3 SCC 261 is another case wherein the
Court struck down a constitutional amendment that sought to remove judicial
power. This Court reviewed the 42nd Amendment through which the Parliament
sought to insert Articles 323-A and 323-B in the Constitution. [para 5].
Article 323-b (2) empowered the Parliament or the State Legislatures to set up
Tribunal to resolve a wide variety of disputes: tax cases, foreign exchange
matters, industrial and labour cases, ceiling or urban property, criminal
matters etc.
[para 35]. Article
323-B(3)(d) excluded the jurisdiction of all courts, save for the Supreme
Court's Article 136 7 jurisdiction. [para 35]. In effect, this provision
enabled the Government to divest the lower and High Courts of the bulk of their
workload. [para 35].
38.
The
Court held that judicial review, under Articles 226 and 227 in the High Courts
and under Article 32 in the Supreme Court respectively is an essential feature
of the Constitution and forms part of the basic structure.
[para 78]. Thus, it
is inviolable. [para 99]. By ousting the higher judiciary of its jurisdiction
under Articles 226/227 and 32, the impugned Articles 323-A(2)(d) and
323B-(3)(d)) violated court's power of judicial review. The Court allowed
Parliament and State Legislatures to set up Tribunals, provided the higher
judiciary retains its Article 226-227/32 jurisdiction. [para 81].
39.
A
nine-Judge Bench in I. R. Coehlo (supra) was constituted to clarify the
following question of fundamental importance:
"The fundamental
question is whether on and after 24th April, 1973 when basic structures
doctrine was propounded, it is permissible for the Parliament under Article
31B to immunize legislations from fundamental rights by inserting them into the
Ninth Schedule and, if so, what is its effect on the power of judicial review
of the Court." (para 4)
40.
If
a law abrogates or abridges a fundamental right (by amendment or by insertion
in the 9th Schedule), the Court may exercise its judicial review power and
examine it on the touchstone of the basic structure doctrine as reflected in
Article 21 read with Articles 14 and 9 by application of the "rights"
and "essence of the right" tests.
[See conclusions (i)
and (iii)]. The Court in Coehlo observed as under:
"The existence
of the power of Parliament to amend the Constitution at will, with requisite
voting strength, so as to make any kind of laws that excludes Part III
including power of judicial review under Article 32 is incompatible with the
basic structure doctrine. "
41.
Of
course, POTA (Repeal) 2004 is not a constitutional amendment. Nor does it
entirely remove judicial power.
Under POTA (Repeal)
2004, a portion of judicial review has been removed. The trial court no longer
has the power to 7 override the Review Committee's decision to withdraw, as it
would have had under section 321 of Cr.P.C. But this is not as drastic as it
sounds, given that the Review Committee's job is to act as a filter. Where
there is obviously no case against the accused, the Review Committee should withdraw
the case. That is, "... where the Review Committee is of the opinion that
there is no prima facie case for proceeding against the accused," then the
case shall be deemed withdrawn. [See POTA (Repeal) 2004, S. 3(a) and (b)].
Where there is some evidence that suggests that a case against the accused
might exist, the Review Committee must allow the proceedings to continue.
42.
Those
who are aggrieved by the Review Committee's decision to withdraw still have
judicial recourse under Article 226 of the Constitution. Under this Article, it
may take appropriate steps in the High Court (or in this Court) against the
Review Committee's decision to withdraw.
One cannot say that
the aggrieved parties are without a remedy, when those parties can approach the
High Court (or this Court). I make it clear that the High Court should examine
the aggrieved parties' cases, if those parties choose to contest the Review
Committee's decision to withdraw.
43.
Unlike
the provisions at issue in the Election case, Minerva Mills, L. Chandra and I.
R. Coehlo (supra), POTA (Repeal) 2004 do not strip the higher judiciary of
judicial review. As such, POTA (Repeal) 2004 survives. A violation of
separation of powers need not rise to such a level before this Court will
consider it an abrogation of the basic structure.
44.
With
the constitutional analysis behind us, I recognize the pragmatic effect of this
ruling. It is now up to those who feel aggrieved by the Review Committee's
decision to file a writ petition under Article 226 of the Constitution. While a
review of the Review Committee seems cumbersome and redundant, it is
nevertheless essential and required.
45.
Under
Section 3 of POTA (Repeal) 2004, where no prima facie case is made out, the
case "shall" be deemed withdrawn. It is important to note that POTA
(Repeal) 2004 does not expressly reject section 321 of Cr.P.C. Had the
Parliament used a non-obstante clause to preclude the application of section
321 of Cr.P.C. to POTA (Repeal) 2004, POTA 2002 had done in a number of
provisions - our analysis would have been much simpler. That said, Section 56
of POTA 2002, whose operation is saved by section 2(2)(a) of POTA (Repeal)
2004, states that POTA 2002 is to override "anything inconsistent
therewith." As noted, section 321 of Cr.P.C. is inconsistent with the
POTAs, as it makes the Review Committee's decision to withdraw contingent upon
the public prosecutor and the Court.
POTA (REPEAL) 2004 IS
A SPECIAL ACT THAT OVERRIDES GENERAL ACTS SUCH AS THE Cr.P.C.:
46.
In
addition, POTA (Repeal) 2004 is a special Act that trumps a general Act such as
the Cr.P.C. This is consistent with the general principle of statutory
interpretation. What is more, the CrPC itself allows the Parliament to deviate
from the Cr.P.C. when necessary.
The Cr.P.C. says that
it is a general law that is subject to special laws. Sections 4(1) and (2) and
(5) of Cr.P.C. read as under:
"Section 4(1):
All offences under the Indian Penal Code (45 of 1860) shall be investigated,
inquired into, tried, and otherwise dealt with according to the provisions
hereinafter contained.
Section 4(2): All
offences under any other law shall be investigated, inquired into, tried, and
otherwise dealt with according to the same provisions, but subject to any
enactment for the time being in force regulating the manner or place of
investigating, inquiring into, trying or otherwise dealing with such offences.
Section 5:
"Nothing contained in this Code shall, in the absence of a specific
provision to the contrary, affect any special or local law for the time being in
force, or any special jurisdiction or power conferred, or any special form of
procedure prescribed, by another law for the time being in force."
47.
The
Special Act must be deemed to supercede the provisions of the general Act. In
Harbans Singh & Others v. The State, AIR 1953 (All.) 179 at p. 18, the U.P.
Private Forests Act (Act No.6 of 1949) was a special statute that precluded
Magistrates of the First Class from trying violations under the Act. Under
Schedule III of the general Cr.P.C. of 1898, Magistrates of the First Class had
the power to try similar offences. The Allahabad High Court held that the
special law must trump the general and set aside the conviction entered by the
Magistrate of the First Class. The Court relied on Section 5 of the CrPC 1898,
from which S. 5 of the CrPC, 1973 borrowed:
"Para 4. It is,
therefore clear that the powers conferred under the general provisions of the
Code of Criminal Procedure are subject to any special provisions that might be
made with regard to the exercise or regulation of those powers by any special
Act. The special Act having made such provisions with regard to the offences
under the said Act must be deemed to supersede the provisions of the general
Act."
48.
The
provisions of the Special Law must prevail and the CrPC must give way. In an
earlier case, Kripa Ram & Others v. Ram Asrey AIR 1951 (All.) 414, the
Allahabad High Court emphasized this principle. The accused had allegedly
stolen mangoes valued at less than Rs.50. Section 52 of the Village Panchayat
Raj Act provided that offences where less than Rs.50 was at stake were to be
tried by the Panchayat Adalat. The provision as to the amount in controversy
was special relative to the general provisions of the Penal Code, under which
the Judicial Magistrate convicted the accused. Therefore, the High Court set
aside the lower court's conviction and transferred the case to the Panchayat
Adalat. Even where Special Courts had not been constituted and transfer of the
case to a non-existing court could lead to lawlessness, the rule of special
vis-`-vis general was to be followed.
Paragraph 3 reads as
under:
"... The fact
that the Panchayati Adalats had not been constituted would not affect the
provision taking away jurisdiction from the other Courts, although it may result
in inconveniences and lawlessness."
49.
The
Statement of Objects and Reasons of POTA (Repeal) 2004 expressly says that it
is special. The POTA, like the TADA before, deviate from the general criminal
Codes (the Indian Penal Code, 1860 and the Criminal Code of Procedure, 1973)
and provide special substantive and procedural rules for acts of terrorism. It
was first 7 reasoned by the Legislature that harsher laws were necessary to
combat and deter terrorism. While reviewing the Constitutionality of TADA, the
Court in Kartar Singh (supra) gave the Parliament a substantial amount of
deference and upheld all but section 22 of TADA - subject to a few
modifications - finding that the Parliament had the legislative competence to
make harsh laws for harsh times. [See: Justice Pandian's summary at page 712 at
para 368].
SYNOPTIC ANALYSIS OF
POTA (REPEAL) 2004:
50.
It
takes time to give effect to section 321 of Cr.P.C. even when both the public
prosecutor and the Court have to decide whether withdrawal is appropriate.
Under one reading of the statute, withdrawal occurs on the spot.
Under the other, it
is to languish before the public prosecutor.
51.
If
the public prosecutor approves of the decision to withdraw, then it is
presented to the Special Court for a final decision. Inserting section 321 of
Cr.P.C. itself into POTA (Repeal) 2004 defies logic and produces an absurd
result. "The object of the construction of a statute being to ascertain
the will of the Legislature, it may be presumed that neither injustice nor
absurdity was intended." (Owen Thomas Mangin v. Inland Revenue
Commissioner, [1971) 2 WLR 39, p. 42 (PC) (Lord Donovan), as referred in
Justice G.P. Singh's celebrated book, Principles of Statutory Interpretation,
11th Edition, 2008 at page 129.
52.
The
appellant further argued that requiring two withdrawals disregards
Parliamentary intent. The Statute's Statement of Objects and Reasons expresses
the Parliament's intent. It reads as under: "The provisions 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 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 At should be repealed.
3. The Government has
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, 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.
4. The Prevention of
Terrorism (Repeal) Bill, 2004 seeks to replace the Prevention of Terrorism
(Repeal) Ordinance, 2004 and to achieve the above objects.
Sd/- New Delhi
Shivraj V. Patil The 23rd November, 2004.
[Emphasis
added]."
53.
This
Bill became the POTA (Repeal) Act 2004, out of which the instant case arises.
This statement gives us guidance in two areas. First, the allegations of misuse
of POTA 2002 were directed at some of the State Governments. This is relevant
because it shows that the Parliament wanted a mechanism by which it could
reverse the State Governments' alleged misuse of POTA 2002.
Subjecting the
Central Review Committee's decision to the will of the State Government's
Public Prosecutor, as is done when section 321 of Cr.P.C. applies, clearly goes
against the very objective of POTA (Repeal) 2004.
54.
It
is reiterated that those aggrieved by the Review Committee's decision are not
without any remedy, they can have recourse under Article 226 of the
Constitution.
In this view of the
matter, the basic principle of separation of power is not violated. No
provisions of the Constitution are violated by repealing the Act by the
Parliament.
55.
I
agree with the conclusions arrived at by Hon'ble the Chief Justice. The appeals
are accordingly disposed of.
...............................J.
(Dalveer Bhandari)
New
Delhi;
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