Madras High Court
Gurusamy vs The Chairman on 16 December, 2022
Author: Anita Sumanth
Bench: Anita Sumanth
W.P.Nos.38873 of 2005 & 1377 & 36989 of 2016 &
WP.No.5386 of 2006
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.12.2022
CORAM
THE HONOURABLE DR. JUSTICE ANITA SUMANTH
W.P.Nos.38873 of 2005 & 1377 & 36989 of 2016 &
WP.No.5386 of 2006
WMP.Nos.1150, 31802 & 31803 of 2016
WP.No.38873 of 2005
1.Gurusamy
2.Martin @ Tamilselvan
3.Suresh @ Thileepan
4.Madhaiyan
5.Kumar @ Venkatesan @ Palanisamy
6.Raja
7.Durai
8.Palani @ Manickam @ Manimaran
9.Krishnan
10.Ravi
11.Sathish Kumar
12.Sakthivel
13.Sekhar @ Bhaskaran
14.Muthu @ Patchamuthu
15.Thangapandiyan
16.Manivasagam
17.Vinayagam @ Murali
18.Raja
19.Balan @ Jayabalan
20.Duraisingavel @ Velu @ Durai ...Petitioners
Vs.
1.The Chairman,
Review Committee on POTA
https://www.mhc.tn.gov.in/judis
1
W.P.Nos.38873 of 2005 & 1377 & 36989 of 2016 &
WP.No.5386 of 2006
(Constituted under section 60 of POTA, Act 2002)
Vigyan Bhavan, Annexe, New Delhi-1.
2.State rep. by its Chief Secretary,
Government of Tamil Nadu,
Fort St. George, Chennai-9.
(R2 deleted as per order dated 09.09.2016 by this Court
in WMP.No.15728 of 2016 in WP.No.38873 of 2005)
2.The State Represented by its
Home Secretary, Secretariat,
Fort St. George, Chennai-9
Government of Tamilnadu. ...Respondents
(R2 impleaded as per order dated 09.09.2016 by this Court
In WMP.No.15727 of 2016 in WP.No.38873 of 2005)
Prayer:Writ Petition filed under Article 226 of the Constitution of India, to
issue a Writ of Certiorarified Mandamus, to call for the records in
F.No.1/25/RCPT/2003 dated 04.02.2005 on the file of the 1st respondent and
quash the same as illegal and direct the 2nd respondent to transfer the case in
Special C.C.5/03 on the file of the Special Court for POTA offense at
Poonamallee to any other Sessions Court to try the petitioners in accordance
with ordinary penal law.
AND
WP.No.5386 of 2006
1.Reeta Mary @ Uma
2.Sathiamary @ Padma
3.Reena Jouyce Mary @ Jayanthi Mary @ Jayal Mary
4.Sathia @ Uma @ Deivanai @ Yasodha
5.Vijaya @ Ramani
6.Amalorpavam @ Anandhi ...Petitioners
Vs.
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2
W.P.Nos.38873 of 2005 & 1377 & 36989 of 2016 &
WP.No.5386 of 2006
1.The Chairman,
Review Committee on POTA
(Constituted under section 60 of POTA, Act 2002)
Vigyan Bhavan, Annexe, New Delhi-1.
2.State rep. by its Home Secretary,
Government of Tamil Nadu,
Fort St. George, Chennai-9. ...Respondents
(R2 substituted as per order dated 20.08.2019 by this Court
in WMP.No.15720 of 2016 in WP.No.5386 of 2006)
Prayer:Writ Petition filed under Article 226 of the Constitution of India, to
issue a Writ of Certiorarified Mandamus, to call for the records in
F.No.1/25/RCPT/2003 dated 04.02.2005 on the file of the 1st respondent and
quash the same as illegal and direct the 2nd respondent to transfer the case in
Special C.C.5/03 on the file of the Special Court for POTA offences at
Poonamallee to any other Sessions Court to try the petitioners in accordance
with ordinary penal law.
AND
WP.No.1377 of 2016
Ragini ...Petitioner
Vs.
The Chief Secretary,
Government of Tamil Nadu,
Fort St. George, Chennai-600 009. ...Respondent
Prayer:Writ Petition filed under Article 226 of the Constitution of India, to
issue a Writ of Mandamus, directing the Respondent to consider the
representation of the petitioner dated 31.12.2015 by constituting Review
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W.P.Nos.38873 of 2005 & 1377 & 36989 of 2016 &
WP.No.5386 of 2006
Committee headed by Retired High Court Judge by Reviewing the case in
Spl.C.C.No.5 of 2003 on the file of Special Court for POTA cases,
Poonamalee, Chennai-600 056 so far as the petitioner’s concerned to secure the
ends of justice.
AND
WP.No.36989 of 2016
Sundaramurthy ...Petitioner
Vs.
The Principal Secretary to Government,
Home (Pol.VII) Department,
Fort St. George, Chennai-9. ...Respondent
Prayer:Writ Petition filed under Article 226 of the Constitution of India, to
issue a Writ of Certiorarified Mandamus, to call for the records in impugned
order Letter No.20159/Pol.VII/2016-3, Dated 23.05.2016 on the file of the
respondent herein and quash the same as illegal and directing the respondent to
constitute a review committee to review the petitioner case.
(In all WPs)
For Petitioners : Mr.R.Sankarasubbu
For Respondents : Mr.A.Selvendran
Special Government Pleader
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W.P.Nos.38873 of 2005 & 1377 & 36989 of 2016 &
WP.No.5386 of 2006
COMMON ORDER
There are 28 petitioners in these four Writ Petitions. The petitioners in two of the Writ Petitions (W.P.Nos.38873 of 2005 and 5386 of 2006), challenge an order passed by the Review Committee constituted in terms of Section 60(4) of the Prevention of Terrorism Act, 2002 (in short ‘POTA Act’).
2. The petitioner in W.P.No.1377 of 2016 seeks a writ of Certiorarified mandamus calling for order dated 23.05.2016 on the file of the respondent herein and quash of the same as illegal and a direction to the respondent to constitute a review committee to review the case of the petitioner.
3. The petitioner in W.P.No.36989 of 2016 seeks a mandamus directing the State to constitute a Review committee to consider whether there is a prima facie case for continuance of the matters pending before the POTA Special Court as against her.
Submissions of the Petitioner
4. The genesis of the impugned proceedings is an incident that took place on 23.11.2002 when, on information received from a police constable, a team of police officials headed by the Inspector of Police, Naxalite Special Duty Wing, Dharmapuri District conducted a survey in a Mango grove, at Salaijogipatti Village, Dharmapuri District.
5. They believed that the grove was owned by one Murugesan, and did https://www.mhc.tn.gov.in/judis 5 W.P.Nos.38873 of 2005 & 1377 & 36989 of 2016 & WP.No.5386 of 2006 not find anyone therein. Upon enquiry, they were given to understand that there had been a group of people who had been undergoing karate training but had left the place, on objections being raised by the villagers.
6. Investigation was continued and arrests made leading to the filing of Case in Special CC.No. of 2003 before the Prevention of Terrorism Act, 2002 (Session Court for Exclusive Trial of Bomb Blast Cases) at Poonamallee. The fundamental premise of the arrests is that the petitioners are members of the Radical Youth League (RYL) which constitutes a front of the Communist party of India (Marxist – Leninist) People’s War.
7. According to the petitioners, the cases as against them are to be tried in the regular Court, as there is no justification in law whatsoever for the matters to be tried by the POTA Court. Requirements under the POTA Act are stringent as the POTA is a special enactment. The Act was itself in force only for a period of 2 years, having been enacted specially to deal with a surge of insurgency at that point in time.
8. The preamble thereto states the enactment was brought about to make provisions for the prevention of, and for dealing with, terrorist activities and for matters connected therewith. Though Section 1 (6) of POTA stipulates that it was to continue in force for a period of three years, it stood repealed in 2004 and there is thus no justification for continuance of matters under a dead https://www.mhc.tn.gov.in/judis 6 W.P.Nos.38873 of 2005 & 1377 & 36989 of 2016 & WP.No.5386 of 2006 enactment.
9. The sine qua non, for matters to be dealt with under POTA is the classification of the accused as a terrorist and the activity engaged by the accused, as an act of terrorism. In the present case, the conclusion that the petitioners are terrorists or that they had indulged in acts of terrorism, is incorrect both on facts and in law.
10. The conclusion in the impugned order to the effect that the petitioners are members of a banned organisation is based on Government Order bearing No.G.O.316 dated 19.07.2002 issued by the Government of Andhra Pradesh, which is not binding upon the authorities in Tamil Nadu.
11. The Appendix to the POTA Act enumerates the list of organizations declared to be terrorist organizations, banned in the interests of sovereignty of the Country. The RYL does not find reference therein.
12. It is for this reason that the respondents seek to include RYL within the ambit of ‘Communist party of India (Marxist-Leninist) – People’s War, All its formations and front organizations’, which figures in Sl.No.24 of the schedule. There is nothing to indicate what a ‘front’ organization is. Such term is undefined and there is no evidence available on record to support the conclusion that RYL constitutes a front for any banned organization.
13. In the absence of such material, it is entirely incorrect on the part of https://www.mhc.tn.gov.in/judis 7 W.P.Nos.38873 of 2005 & 1377 & 36989 of 2016 & WP.No.5386 of 2006 the respondents to have categorized the RYL as a terrorist organization based on mere surmises and presumptions. That apart, yet another reason that has weighed with the respondents is the possession of arms and ammunition by the petitioners.
14. The petitioners were found in possession of innocuous material such as, pipe bombs, that cannot, according to the learned counsel for the petitioners, be considered as ammunition, grave and dangerous enough to bring the matter within the ambit of POTA.
15. The thrust of the POTA is far more serious and calls for, not just possession, but actual deployment of arms and ammunition in a way that would pose a threat to the security of the Country. Nowhere has such a case been made out by the respondents, and mere possession of country and pipe bombs are wholly insufficient to categorize the petitioners as terrorists.
16. It was only in 2004 that the State of Tamil Nadu issued a Government Order in G.O.No.SS.I/453-5/2004, Public (SC), dated 10th September 2004 naming RYL specifically as a front organization to the organization named in Sl.No.24 of the Appendix to POTA and banning the same. This G.O. is dated post the date of commission of the alleged offences, and evidently cannot encompass activity that had occurred on 23.11.2002. The operation of the aforesaid G.O. is only prospective.
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17. As regards the petitioners, Ragini and Sundaramurthy in W.P.Nos.1377 and 36989 of 2016, it is their case that they have never been heard by the Review Committee. The hearing by, and before the Review committee is mandatory and part of the statutory scheme of the POTA.
18. The Hon’ble Supreme Court in the case of Kartar Singh v. State of Punjab [(1994) 3 SCC 569], had, upon consideration of the scheme of Section 60 of the POTA and 2004 Repeal Act, directed the Centre to constitute a committee to review all cases booked under the POTA to assess and render a finding as to the appropriateness of the matter to be heard by the Special Court.
19. The Committee constituted in the present case had noticed several procedural irregularities in the conduct of investigation, despite which it returned a prima facie case for reference to the Special Court. The irregularities noticed are serious in nature and go to the root of the matter. The finding of a prima facie case and direction to the POTA Court to proceed with the matter is, according to the petitioners, wholly contrary to law.
20. These two petitioners were never heard and their contentions not taken note of. It is thus that Sundaramurthy seeks a quash of order dated 23.05.2016, wherein the respondents have rejected his petition for hearing before the Committee on the ground that his case has already been decided by the Committee.
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21. Ragini @ Bharathi, on the same grounds, seeks a mandamus to the respondents to constitute a Review committee and hear her. In fact, learned counsel would submit that the individuals had absconded and were never identified and thus the question of notice being issued to them by the Review Committee or they having been heard in a fair manner as the law requires, does not arise.
22. The array of counsel who appeared on their behalf before the Review Committee, when compared with the counsel who had appeared for the respondents before the Review Committee would itself indicate the lopsided and inequitable approach that had been adopted by the Committee.
23. Till date, he would allege, no legal assistance is being provided to the petitioners despite a specific direction having been issued in this regard by a Division Bench of this Court in Martin @ Tamilselvan (supra), wherein in conclusion, the Bench specifically requires the State and the authorities to make available legal counsel in the following terms:
15. In Criminal Appeal No.346 of 2007, the appellants, 27 in number, have approached the Special Court under Section 304 of the Code of Criminal Procedure in Crl.M.P.No.102 of 2007 for appointment of pleaders through legal aid to defend them in their case and the said petition was dismissed by order dated 24.3.2007.
As we have found that irrespective of whether an application is filed or not, in the event the Court is satisfied that the accused is entitled to defend the case through the pleader of his choice and at the expense of the State in the event he is able to satisfy the Court that in the circumstances of the case a pleader of special expertise is required https://www.mhc.tn.gov.in/judis 10 W.P.Nos.38873 of 2005 & 1377 & 36989 of 2016 & WP.No.5386 of 2006 and he has no means to pay him, the Court in exercise of suo motu power under Section 304 could appoint such pleader by fixing the fee at the cost of the State. In the event the Court had not done so, this Court would certainly be competent, both to make such appointment and to direct the payment of fee from the State fund. Hence for the above reasons, both the Writ Petitions and the criminal appeal should succeed.
24. He further draws attention to the order passed by this Court in Crl.A.No.377 of 2014 and 60 of 2012 in the case of Ragini @ Bharathi and Sundaramurthy dated 23.09.2014 and 19.04.2012 respectively, wherein the prima facie case as against these petitioners came to be considered and bail granted. The observations of the Bail Court in the aforesaid cases is telling and clearly establish a prima facie case in favour of the petitioners rather than against.
25. As against 28 petitioners in four Writ Petitions, all have been granted bail barring the 16th petitioner in W.P.No.38873 of 2005, viz., Manivasagam. Learned counsel would also, in the course of the submissions allege atrocities committed by the police authorities including encounters in which some members of the RYL were eliminated.
26. He makes a distinction between possession of firearms and deployment, as also between passive and active membership of an organization. According to him, mere possession of firearms does not attract the provisions of POTA except if such arms were actually deployed, and illegally. https://www.mhc.tn.gov.in/judis 11 W.P.Nos.38873 of 2005 & 1377 & 36989 of 2016 & WP.No.5386 of 2006
27. Then again, membership of an organization cannot, by itself, incriminate as such membership only indicates alignment with a philosophy. There cannot be, learned counsel stresses, any bar or ban on free thought.
28. The petitioners rely upon the following judgments in support of their submissions:
(i) Vijaykumar Baldev Mishra @ Sharma v. State of Maharashtra [Appeal (Crl.)No.602 of 2004]
(ii) Noor Aga v. State of Punjab & Anr. [2010 96 AIC 176]
(iii) State of Kerala v. Raneef [(2011) 1 SCC 784]
(iv) Arup Bhuyan v. State of Assam [(2011) 3 SCC 377]
(v) Indra Das v. State of Assam [(2011) 3 SCC 380]
(vi) Mohd. Iqbal M.Shaikh and Others v. State of Maharashtra [(1998) 4 SCC 494]
(vii) Abdul Rehman Antulay and others v. R.S.Nayak and another [(1992) 1 SCC 225]
(viii) Shaheen Welfare Association v. Union of India & Ors. [1996 SCC (2) 616]
(ix) Nirmala v. State of Tamil Nadu and others [WA.No.1023 of 2001 dated 27.03.2012]
(x) Ragini @ Bharathi v. State rep. By Deputy Superintendent of Police, “Q” Branch, CID, Thirupathu range, Dharmapuri, Dharmapuri District [Criminal Appeal No.377 of 2014 dated 23.09.2014]
(xi) Vaiko and others v. The Deputy Superintendent of Police, State of Tamil Nadu,‘Q’ Branch, CID, Kalaimagal Nagar, Madurai 625 017.[Criminal Appeal No.290 of 2014 dated 13.10.2014]
(xii) Venkatesan v. The State of Tamilnadu rep. by its Secretary, Department of Home, Fort St. George, Chennai-9 and another [WP.No.15561 of 2003 dated 19.02.2004]
(xiii) E.Shahul Hameed v. State of Tamil Nadu, Rep. by its Chief Secretary, Fort St. George, Chennai 600 009 [W.A.No.1624 of 2006 dated 23.01.2007]
(xiv) Manmatharajan and others v. The State of Tamil Nadu, Rep. by its Secretary, Department of Home, Fort St. George, Chennai 600 009 and another [WP.No.23085 of 2010 dated 21.10.2010]
(xv) Martin @ Tamilselvan and others v. State by: The Deputy https://www.mhc.tn.gov.in/judis 12 W.P.Nos.38873 of 2005 & 1377 & 36989 of 2016 & WP.No.5386 of 2006 Superintendent of Police, Q Branch CID, Coimbatore [Criminal Appeal No.346 of 2007 and W.P.Nos.13319 & 13920 of 2005 dated 10.12.2008] (xvi) Sundaramurthy v. The State rep by The Deputy Superintendent of Police, ‘Q’ Branch, CID, Dharmapuri [Criminal Appeal No.60 of 2012 dated 19.04.2012] Respondent’s submissions
29. The respondents defend the impugned orders and also object to the prayer for mandamus. On 24.11.2022, Murugesan was interrogated by the Inspector of police, who then came to understand that the grove was owned by his wife Saroja who had leased it to one Gurusamy who had permitted the petitioners to conduct arms training in that location.
30. On 24.11.2002, the team, along with Uthangarai police conducted a search in the house of Gurusamy at Anna Nagar, Uthangarai and recovered country made guns, air guns, gelatin sticks, safety fuses, medicines and books relating to the RYL.
31. Some arrests were made, of Martin @ Tamil Selvan, second petitioner in W.P.No.38873 of 2005, Murugesan, who subsequently died and Prabakaran, a juvenile, and a case in Crime No.1004 of 2002 came to be registered in the Uthangarai police station under the provisions of Section 120- B of the Indian Penal Code (in short ‘IPC’) read with Section 9(B)(1)(b) of the Explosives Act, 1884, Section 25(1)(a) of the Arms Act, 1959 and Sections 4 and 5 of the Explosive Substances Act, 1908.
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32. On the same day, the team received information that a group of about 25 persons had been found to be indulging in suspicious movement towards Kallur village, Dharmapuri District. They were carrying shoulder bags and fire arms. The team searched the villagers in and around Periyakanagampatti village and exchanged fire at around 1.45 p.m. in Chinnakanagampatti village, in the course of which, one Siva @ Partheepan died on account of a bullet injury. One police personnel also is said to have sustained pellet injuries. Some arrests were made while some others had absconded.
33. A case in crime No.1005 of 2002 under Sections 120-B, 147, 148, 332 and 307 of IPC read with Sections 25(1)(a) of Arms Act, 1959, Sections 4 and 5 of Explosive Substances Act, 1908 and Section 174 of the Criminal Procedure Code, 1973 was registered.
34. Later, the same day, upon information that there was suspicious movement around Onnakarai forest area of Dharmapuri district a group of persons were located around 5.30 p.m. There was exchange of fire when the persons apprehended tried to escape, raising slogans in support of the People’s War Group.
35. 15 persons came to be accused, viz., Krishnan, Ravi, Sathishkumar, Sakthivel, Sekar @ Baskaran, Muthu @ Patchamuthu, Thangapandian, Manivasagam, Vinayagam, Raja, Reetamary, Sathiyamary @ Padma, Reena https://www.mhc.tn.gov.in/judis 14 W.P.Nos.38873 of 2005 & 1377 & 36989 of 2016 & WP.No.5386 of 2006 Joyce Mary, Amalorpavam @ Anandhi, Anandkumar @ Bhagathsingh.
36. Literature relating to the Naxals movement, identity cards and pipe guns were recovered and a case in Crime No.1006 of 2002 under Sections 147, 148, 307 and 120B of IPC read with Section 25(1)(a) of the Arms Act was registered. The next day, i.e., on 25.11.2002 upon information received, a team investigated the movement of some persons at Kurugapatti Village in Kallvai Police station limits.
37. There was exchange of fire, wherein three police personnel are said to have sustained gunshot injuries and one person from the opposing team, namely, Balan, sustained a bullet injury in his head. He was arrested.
38. The others on the scene, i.e., Duraisingavel, Vijaya @ Ramani, Sundaramurthy, Chandra, Yosodha and Bharathi are said to have escaped. This led to registration of case in Crime No.434 of 2002 under Sections 147, 148, 332 and 307 of IPC read with Section 25(1)(a) of the Arms Act, 1959 and Sections 3 and 4 of the Explosive Substances Act, 1908.
39. These are the 4 FIRs that had been filed in this matter. Cases were then transferred to the Q Branch CID, Coimbatore under proceedings of the Director General of Police, Tamil Nadu dated 01.12.2002. Arrests were made on 24.11.2002, 26.11.2002 and 20.02.2003, and a total of 33 persons including some of the petitioners were arrested and arrayed as accused. https://www.mhc.tn.gov.in/judis 15 W.P.Nos.38873 of 2005 & 1377 & 36989 of 2016 & WP.No.5386 of 2006
40. A final report was filed on 19.05.2003 before the Prevention of Terrorism Act, 2002 (Session Court for Exclusive Trial of Bomb Blast Cases) at Poonamallee and taken on file in Special C.C.No.5 of 2003.
41. A common final report was filed invoking various provisions of IPC, POTA Act, and Arms Act. Charge sheet and documents were furnished to 27 accused, barring 5 accused who were absconding and charges were framed against them on 23.11.2004. As against the absconding persons, non-bailable warrants were issued by the Special Court.
42. One Navin @ Prasath, died in a combing operation conducted by Special Task Force and local police on 19.04.2008 at Vadagunchi, Kodaikanal police station limit, an absconding accused Boothipatti Ramachandran was arrested on 17.05.2005 and Sundaramurthy on 10.07.2007. Chandra was arrested on 06.08.2016 and Bharathi on 24.06.2013. Thereafter, proceedings that had been split initially relating to the aforesaid two accused came to be merged with the original case, i.e., Special C.C.No.5 of 2003.
43. The status report filed on behalf of the Additional Chief Secretary to Government, Home, Prohibition and Excise Department on 26.09.2022 contains a list of 23 material objects, and the list reads as follows:
Sl. Name of the Property seized
No. other accused
concerned in During arrest During Police
the above said Custody
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W.P.Nos.38873 of 2005 & 1377 & 36989 of 2016 &
WP.No.5386 of 2006
case
1. A.1 Martin @ On 24.11.2002, 07.30
Tamil Selvan @ hrs, in front of the house
Martin Selvan of the accused NIL
Gurusamy, Annanagar,
Uthangarai.
Country made Shot Gun
1. Air Gun-1, Gelatin
Sticks-33, Electric
Detonators-20, Empty
cartridges-24, Cartridges
Reload machine-6, 22
feet lengthy Safety Fuse,
PVC pipes to make pipe
bombs – 6, PVC plastic
caps – 12, Pellets 3
packets, CPI (ML party
Magazines, Two boxes of
Medicines, Tools – box,
white powder-1 Kg,
metal balls – ½ Kg were
recovered.
2. A.5 Madhaiyan NIL On his voluntary
confession on
17.12.2002, a PVC
pipe bomb was
seized
3. A.6 Kumar @ NIL On 17.12.2002 at
Venkatesan @ 16.00 hrs, on his
Palanisamy voluntary confession
a PVC pipe bomb
was recovered.
4. A.7 Raja One bag containing party NIL
literatures and copies of
manual of arms and
bombs manufacturing
Telugu
5. A.8 Durai NIL On his voluntary
confession on
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W.P.Nos.38873 of 2005 & 1377 & 36989 of 2016 &
WP.No.5386 of 2006
31.12.2002 a PVC
pipe bomb was
seized
6. A.9 Palani @ NIL On his voluntary
Manickam @ confession on
Manimaran 21.01.2003 one knife
was seized.
7. A.12 Krishnan On 24.11.2002 at 17.30 On 17.12.2002 at
hrs Two Bags containing 17.00 hrs on his
Party literatures and voluntary confession
copies of manual of arms a pipe bomb was
manufacturing in Telugu recovered.
8. A.13 Ravi On 24.11.2002 at 17.30 NIL
hrs two Bags containing
Party literatures and
copies of manual of arms
manufacturing in Telugu
were recovered.
9. A.14 On 24.11.2002 at 17.30 On 13.12.2002 at
Sathiskumar hrs Two bags containing 07.00 hrs, on his
Party literatures and voluntary confession
copies of manual of arms a PVC bomb was
manufacturing in Telugu recovered.
were recovered.
10. A.15 Sakthivel On 24.11.2002 at 17.30 On 13.12.2002 at
hrs. Two Bags containing 17.00 hrs, on his
Party literatures and voluntary confession
copies of manual of arms a live hand grenade
manufacturing in Telugu was recovered.
were recovered.
11. A.16 Sekar @ On 24.11.2002 at 17.30 On 11.12.2002 at
Baskaran hrs, party literatures, 17.30 hrs on his
walkie talkie with voluntary confession
charger VCDs and one a live grenade was
SBBL were recovered. recovered.
12. A17 Muthu @ On 24.11.2002 at 17.30 On 14.12.2002 at
Pitchai Muthu hrs, two bags containing 11.00 hrs, on his
party literatures, copies voluntary confession
of manual of arms a PVC pipe bomb
manufacturing in Telugu was recovered.
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W.P.Nos.38873 of 2005 & 1377 & 36989 of 2016 &
WP.No.5386 of 2006
were recovered.
13. A18 On 24.11.2002 at 17.30 NIL
Thangapandian hrs one bags containing
uniforms were recovered.
14. A19 On 24.11.2002 at 17.30 On 10.12.2002 at
Manivasagam hrs two bags containing 12.00 hrs on his
@ Mani @ party literatures and voluntary confession
Saravanan @ copies of manual of arms a shot gun with one
Chandrasekara manufacturing in Telugu live cartridge and
n and one SBBL gun and two empty
12 mm cartridges were cartridges. PW
recovered. identity cards
numbering 42 in
which name of the
cadres were written
in 30 were
recovered.
15. A20 Vinayagam On 24.11.2002 at 17.30 On 11.12.2002 at
@ Murali @ hrs, two bags containing 15.30 hrs on his
Tamilanban party literatures, and voluntary confession
copies of manual of arms a PVC pipe bomb
manufacturing in Telugu was recovered.
and one SBBL gun were
recovered.
16. A21 Raja On 24.11.2002 at 17.30 NIL
hrs two bags containing
party literatures and
copies of manual of arms
manufacturing in Telugu
were recovered.
17. A 26 Balan @ On 25.11.2002 on .315 NIL
Jayabalan riffle, three 8 mm live
cartridges and six 8 mm
misfired cartridges were
recovered.
18. A27 On 26.11.2002 at 14.30 On 06.12.2002 on
Duraisingavel hrs Rs.58,885.00 SBBL his voluntary
@ Velu @ Gun-1, live cartridges confession a PVC
Durai @ Maran and party literatures. pipe bomb and a bag
@ containing CPI (ML)
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W.P.Nos.38873 of 2005 & 1377 & 36989 of 2016 &
WP.No.5386 of 2006
Rameshkumar PW party literatures.
@ Nathan @
Seeralan @
Gowtham
19 A22. Reeta may On 24.11.2022, one bag NIL
@ Uma containing party
literatures and copies of
manual of arms
manufacturing in Telugu
were recovered
20 A.23 Sathya On 24.11.2002 one bag On 19.12.2002 at
Mary @ Padma containing party 14.30 hrs on her
literatures and copies of voluntary confession
manual of arms two PVC pipe bombs
manufacturing in Telugu were recovered.
was recovered
21 A.24 Reena On 24.11.2002 two bags NIL
Joyce Mary @ containing party
Jayanthi Mary literatures and copies of
@ Madurai manual of arms
Mary manufacturing in Telugu
were recovered
22 A.28 Vijaya @ On 26.11.2002 Red On 19.12.2002 at
Ramani @ Jothi Colour ammunitions – 3 17.45 hrs, on her
Nos. country made 12 voluntary confession
mm round – 1 No. were a PVC Pipe bomb
recovered and sa bag
containing CPI (ML)
PW party literatures
were recovered
23 A.25 On 24.11.2002 one bags On 19.12.2002 at
Amalopavam @ containing party 15.30 hrs on her
Anandhi literatures ad copies of voluntary confession
manual of arms Two pipe bombs CPI
manufacturing in Telugu (ML) PW party
was recovered. literatures CPI ML
PW party identity
cards numbering 25
in which names of
the cadres were
https://www.mhc.tn.gov.in/judis
20
W.P.Nos.38873 of 2005 & 1377 & 36989 of 2016 &
WP.No.5386 of 2006
written in 10 were
recovered.
44. The aforesaid sequence of events and the recovery of arms and ammunition as well as the literature pertaining to RYL led the respondents to arrive at a prima facie conclusion that the petitioners constituted members of a terrorist organization, the RYL, one of the front organizations of the Communist party of India (Marxist – Leninist) People’s War, which is listed as a terrorist organization in the Appendix to the POTA.
45. According to them, the Karate training in the mango grove on 23.11.2002 was nothing but organized arms training that had gone on for two days. The petitioners were found in possession of arms, explosives and PVC pipe bombs and their activities in toto, are detrimental to the sovereignty and security of the Country. It is hence that the provisions of POTA Act are invoked against them.
46. In the course of investigation, confessional statements, that are said to be voluntary, were recorded by Superintendent of Police, Q Branch CID on 10.09.2004, which, in terms of Section 32 of the POTA Act is an admissible piece of evidence.
47. Thereafter and in line with the provisions of Section 60 of POTA, as amended by the Prevention of Terrorism (Amendment) Ordinance, 2003 https://www.mhc.tn.gov.in/judis 21 W.P.Nos.38873 of 2005 & 1377 & 36989 of 2016 & WP.No.5386 of 2006 (Central Ordinance No.4/2003), in terms of which sub-sections (4), (5) and (6) were inserted in the Act, a Review Committee constituted by the Central Government had reviewed all cases registered under the POTA including those of the petitioners, irrespective of whether they had made applications for such review.
48. It is on such review that the cases of the petitioners in W.P.Nos.38873 of 2005 and 5386 of 2006, in all 26 persons, came to be reviewed by the POTA Review Committee, chaired by a retired Judge of the High Court. The accused were represented by counsel and the Committee convened on 13, 14 and 15th December, 2004 and 7 and 8th of January, 2005 at the Committee Room, Coovum House, Chennai.
49. The entirety of the material available came to be looked into by the Committee, that came to a conclusion that prima facie, they did not find any misuse of the provisions of the POTA in respect of any of the accused, barring Murugesan. Thus, there was a prima facie finding that the accused had conspired, fired and injured police officials and extorted money apart from being in possession of arms and ammunition, including pipe bombs.
50. The respondents would submit that the review encompassed all the accused including those who were absconding at that time. This submission is made to meet the prayer in W.P.Nos1377 and 36989 of 2016, wherein, Ragini https://www.mhc.tn.gov.in/judis 22 W.P.Nos.38873 of 2005 & 1377 & 36989 of 2016 & WP.No.5386 of 2006 @ Bharathi and Sundaramurthy seek a mandamus for consideration of their cases by the Review committee.
51. In this context, the respondents draw attention to certain paragraphs of the order of the Review Committee including specifically paragraph 6, wherein the names of Ragini and Sundaramurthy find reference.
52. They would argue that no notices could be sent to them and neither could they be heard, since they had absconded and were arrested only on 24.06.2013 and 10.07.2007 respectively. Thus, the issue of mandamus as sought for by them does not arise as their cases have already been considered by the Review committee and such consideration was a one-time measure/benefit that had been extended to the accused. There is no question, or provision under the statutory scheme, for multiple reviews.
53. The appropriate course of action would thus have been for these petitioners as well, to challenge the order of the Review Committee dated 02.02.2005 which takes into account the cases of all 33 accused, including Ragini @ Bharathi and Sundaramurthy. The Writ Petitions filed by them are thus, according to the respondents, to be dismissed.
54. As against the other two Writ Petitions, the Review Committee has examined the existence of prima facie case to invoke POTA and thus there is no necessity to intervene in this conclusion. The Committee, by itself, states that https://www.mhc.tn.gov.in/judis 23 W.P.Nos.38873 of 2005 & 1377 & 36989 of 2016 & WP.No.5386 of 2006 the Special Court will consider in detail the submissions of the accused on all issue at the time of final hearing. There is thus no justification whatsoever to intervene in that order as findings of the Committee leading to its conclusion that there is no misuse of the POTA as against the petitioners, are merely prima facie.
55. As regards the pendency of the matter before POTA Court for 19 long years, the respondents circulate a copy of a recent order passed by the Special Court on 01.12.2022 which sets out in some detail the trajectory that the events have taken over the years. There has been substantial and inexcusable delay in the conduct of proceedings and in finalization of the same. However, such delay is attributable in large measure to the petitioners who have been filing application after application to protract the proceedings and delay the same.
56. A reading of paragraphs 4 to 19 of order dated 01.12.2022 shows that the parties have engaged various counsel who have entered appearance between 04.02.2003 and 15.11.2022. The modus operandi followed by the petitioners is that a counsel who was engaged to appear for one hearing exits the matter prior to the next hearing, paving the way for the next counsel to make his appearance.
57. This has been repeated ad infinitum, and it is this process that has https://www.mhc.tn.gov.in/judis 24 W.P.Nos.38873 of 2005 & 1377 & 36989 of 2016 & WP.No.5386 of 2006 spanned 19 long years. Applications under Section 317 of the Cr.P.C were repeatedly filed as a ploy to delay and protract the matter. Valuable time of the Court was thus spent on disposing those applications which could have been better spent in disposing the matters finally.
58. Bearing in mind the gravity of the offences, prima facie, and the seriousness of the issues involved, I would say the narration in order dated 01.12.2022 is a reductio as absurdum of the legal process by petitioners causing counsel to casually entering and exit the stage of drama, and successfully protracting events from 2003 till date.
59. This Court finds no necessity for the matter to have been left to drag till now and the explanation tendered by the respondents, that it was in deference to the pendency of these writ petitions, is unacceptable. There is, admittedly, no interim protection granted in the matter, and hence there was no necessity for them to wait. In fact, and on the contrary, it was incumbent upon the respondents to have proceeded with the matter expeditiously.
60. The petitioners have referred to the judgement of the Hon’ble Supreme Court in the case of Abdul Rehman Antulay (supra), the locus classicus in regard to the procedure that should be followed in criminal trials. One of the aspects of proper procedure is a speedy trial. This parameter has, in my considered view, been reduced to an absurdity in the present case, and both https://www.mhc.tn.gov.in/judis 25 W.P.Nos.38873 of 2005 & 1377 & 36989 of 2016 & WP.No.5386 of 2006 parties are to be equally blamed for the failure of the trial process thus far.
61. As regards the submission that the petitioners have been denied access to legal aid, it is the case of the respondent that they had, in fact, offered legal aid and a panel suggested of legal counsel have been made available to the petitioners. However, it is the petitioners who have not opted to avail such aid. Despite such list having been furnished, they have not selected any counsel therefrom.
62. However, they have been, before the Special Court, engaging private counsel from time to time and thus there is no truth in their allegation that they are denied access to legal aid. Even today, the State is ready and willing to provide necessary support in this regard. However, this argument should not be used by the petitioners as a means to protract the proceedings which is clearly, the attempt now.
63. The respondents rely upon the judgment of the Hon’ble Supreme Court in the case of Mahmadhusen Abdulrahim Kalota Shaikh (2) v. Union of India and Others [(2009) 2 SCC 1], specifically paragraphs 29 to 31 that read as follows:
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 https://www.mhc.tn.gov.in/judis 26 W.P.Nos.38873 of 2005 & 1377 & 36989 of 2016 & WP.No.5386 of 2006 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 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:
"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 https://www.mhc.tn.gov.in/judis 27 W.P.Nos.38873 of 2005 & 1377 & 36989 of 2016 & WP.No.5386 of 2006 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 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. Discussion
64. I have heard the rival contentions and devoted anxious consideration to the same. The Unlawful Activities (Prevention) Act, 1967 was enacted to provide for prevention of unlawful activities by individuals and associations, and dealing with terrorist activities and all matters connected therewith. This was a consequence of resolutions passed by the Security Council of the United Nations requiring all Member States to take measures to combat international terrorism. This Act continues to this day.
65. The State in its wisdom, and, even during the tenure of UAPA, felt the need to enact specialized enactments for limited duration to combat specific acts of insurgency that reared their head from time to time. Thus the Terrorist and Disruptive Activities (Prevention), Act came to be enacted in 1987 which https://www.mhc.tn.gov.in/judis 28 W.P.Nos.38873 of 2005 & 1377 & 36989 of 2016 & WP.No.5386 of 2006 was in force for a period of 8 years as per Section 2 thereof.
66. This was followed by the enactment of the Prevention of Terrorism Act, 2002 in force for a period of two years as per Section 1(6). It however, stood repealed in 2004 itself, perhaps a testimony to its effectiveness or the lack of it. The ambit of the Act extends to cover activities that are determined to be detrimental to the sovereignty and security of the country.
67. The submissions of the petitioners proceed primarily on the basis that there is nothing available on record or that has been found, that could lead to a conclusion of they being terrorists, or having engaged in acts of terrorism.
68. They were not found to be members of an organization which was banned as on the date of the commission of offence, being 23.11.2002. The Appendix to the POTA as on that date did not enumerate the RYL as a banned organization and it is only in 2004 that Tamil Nadu passed a G.O. to such effect.
69. The application of the G.O. to the case on hand, whether it is clarificatory and hence could be considered retrospective and whether RYL could be brought within the ambit of the organization in serial No.24 of the appendix, deeming it to be a front for a banned organization, are issues that would have to be examined by the Special Court.
70. The term ‘front’ has not been defined under the Act or under any of https://www.mhc.tn.gov.in/judis 29 W.P.Nos.38873 of 2005 & 1377 & 36989 of 2016 & WP.No.5386 of 2006 the relevant enactments. The term usually connotes an affiliated organization, one that sympathizes with the cause of the main organization and undertakes activities in alignment with the objects of the same.
71. In common parlance, it is understood to be an entity set up and controlled by another organisation that acts as its face, and could be either an intelligence agency, organized crime group or advocacy group, that would conceal the activities of the parent organisation as well advance its ideologies and objects.
72. It is undisputed that the petitioners were in possession of arms and ammunition and were found in a group undergoing what they state was karate practice, but according to the State was arms training. That apart, the acrimonies exchange between the petitioners and the police officials on more than one occasion which have led to the death/injury of persons on both sides is also a matter for consideration.
73. The impugned order of the Review committee is admittedly not as speaking an order as one might have desired. However, the narration of events does prima facie, establish the use of firearms as against the police officials, that would lead to affirmation of the view of the Committee that the POTA has not been misapplied in this case. To this end, I agree with the conclusions of the review committee that these issues require deeper analysis which would be https://www.mhc.tn.gov.in/judis 30 W.P.Nos.38873 of 2005 & 1377 & 36989 of 2016 & WP.No.5386 of 2006 appropriate to be undertaken by the Special Court.
74. The petitioners need hardly apprehend that the findings of the committee, might stand in their way of a fair trial as the Special Court will embark on the adjudication of the matter uninfluenced by any of the observations made by the review committee.
75. This aspect of the matter has been made clear by the review committee itself when it states that all relevant aspects of the matter shall be looked into in depth by the Special Court and all contentions are left open to be decided by the POTA Court.
76. With regard to the so-called confession by Gurusamy, petitioner counsel would point to the provisions of Section 32 of POTA Act that requires the accused whose statement is being recorded to be informed in writing about the possibility that the statement may be utilised adverse to him.
77. This has been specifically noted in the case of Indra Das (supra) and Noor Aga (supra), wherein the Hon’ble Supreme Court states thus:
151.Section 50 of the Act provides for an option to be given.
This Court in Baldev Singh (supra) quoted with approval the decision of the Supreme Court of United States in Miranda v.Arizona [(1966) 384 US 436] in the following terms:
“The Latin maxim salus populi suprema lex (the safety of the people is the supreme law) and salus republicae suprema lex (safety of the State is the supreme law) coexist and are not only important and relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of the https://www.mhc.tn.gov.in/judis 31 W.P.Nos.38873 of 2005 & 1377 & 36989 of 2016 & WP.No.5386 of 2006 community. The action of the State, however, must be ‘right, just and fair.” …..
160.A person who is sought to be arrested or searched has some rights having regard to the decision of this Court in D.K.Basu v. State of West Bengal [(1997) 1 SCC 416].
D.K.Basu rule states that if a person in custody is subjected to interrogation, he must be informed in clear and unequivocal terms as to his right to silence. This rule was also invoked in Balbir Singh (supra).’
78. This Court, under Article 226 of the Constitution of India, is not positioned to call for and take stock of the evidence to determine whether the records reflect such recording of satisfaction and thus, I desist. No doubt, the trial Court, will, while trying the case, look into this aspect of the matter and by way of a reasoned conclusion determine whether the specific statutory and salutary requirement under Section 30 has been satisfied in this case.
79. The Right to silence has been held to be a fundamental right, and has been read into Article 21 of the Constitution of India. The Indian Constitution does not, like the American Constitution, contain an equivalent to their Fifth Amendment, by virtue of which persons may plead the Right to silence so as not to incriminate themselves in the proceedings.
80. However, the Right to protect against such self-incrimination, while not expressly part of Indian statutory provisions, is available as part of Article 21 of the Constitution of India.
https://www.mhc.tn.gov.in/judis 32 W.P.Nos.38873 of 2005 & 1377 & 36989 of 2016 & WP.No.5386 of 2006
81. The exercise of marshalling of facts and appreciation of evidence is best left to, and must be undertaken only by the Special Court, which is equipped with the necessary infrastructure and expertise to enable the same. The challenge to the order of the Review Committee is thus rejected.
82. I also agree with the State that the constitution of a review committee is a one-time measure as the findings of the committee are only prima facie, merely a preliminary and enabling exercise to decide whether the matter is to be tried by the Special or Regular Courts.
83. The constitution of the review committee is intended as a benefit to the accused, to ensure that the provisions of the Act are not being applied in a case where the provisions of Section 3 are patently inapplicable. Based upon the narration of facts in the preceding paragraphs, the present case would not fall within such category.
84. Incidentally, the appreciation of evidence itself would itself remain one and the same whether under regular criminal or POTA and the reference to a POTA Special Court is only qua the alleged activity engaged in by the accused, falling within the contours of Section 3 of the POTA.
85. In support of the proposition aforesaid, useful reference may be made to the observations of the Hon’ble Supreme Court in Mohd. Iqbal M.Shaikh and others v. State of Maharashtra [(1998) 4 SCC 494]) quoting an earlier https://www.mhc.tn.gov.in/judis 33 W.P.Nos.38873 of 2005 & 1377 & 36989 of 2016 & WP.No.5386 of 2006 judgement of theirs, as below:
‘18.Mr.Nargolkar, the learned Senior Counsel appearing for the State of Maharashtra, however, contended that no doubt, there have been several omissions on the part of the witnesses in their statement under Section 161 but those omissions would not impeach their evidence, in any manner so far as the basic prosecution case is concerned and the case being one under TADA and the circumstances under which the witnesses have given their evidence, the Court would be justified in separating the chaff from the grain and on accepting the grain can base conviction in view of the corroboration it gets from other evidence. This submission of the learned counsel for the respondent suffers from a misgiving as law does not make any distinction in the matter of appreciation of evidence in a case under TADA or under normal criminal law. This question had been answered by this Court in a case in somewhat similar circumstances in Dilavar Hussain v. State of Gujarat [JT (1990) 4 SC 282] wherein it has been observed : (SCC p.225, para 4) “4.Misgiving, also, prevailed about appreciation of evidence. Without adverting to submissions suffice it to mention that credibility of witnesses has to be measured with same yardstick, whether, it is an ordinary crime or a crime emanating due to communal frenzy. Law does not make any distinction either in leading of evidence or in its assessment. Rule is one and only one, namely, if depositions are honest and true. Whether the witnesses, who claim to have seen the incident in this case, withstand this test is the issue.”’ (Emphasis supplied by the court)
86. Section 3 of the POTA contains two clauses, as extracted below:
“3. Punishment for terrorist acts.-
(1) Whoever,—
(a) with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people does any act or thing by using bombs, dynamite or https://www.mhc.tn.gov.in/judis 34 W.P.Nos.38873 of 2005 & 1377 & 36989 of 2016 & WP.No.5386 of 2006 other explosive substances or inflammable substances or firearms or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature or by any other means whatsoever, in such a manner as to cause, or likely to cause, death of, or injuries to any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community or causes damage or destruction of any property or equipment used or intended to be used for the defense of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies, or detains any person and threatens to kill or injure such person in order to compel the Government or any other person to do or abstain from doing any act;
(b) is or continues to be a member of an association declared unlawful under the Unlawful Activities (Prevention) Act, 1967 (37 of 1967), or voluntarily does an act aiding or promoting in any manner the objects of such association and in either case is in possession of any unlicensed firearms, ammunition, explosive or other instrument or substance capable of causing mass destruction and commits any act resulting in loss of human life or grievous injury to any person or causes significant damage to any property, commits a terrorist act.”
87. While Section 3(b) does make specific reference to membership in a banned organisation, both sub-sections (a) and (b) are couched in expansive language and are thus wide in application. They addresses the commission of activities that are construed to be a threat to the sovereignty and security of India.
88. Thus, even assuming that the RYL would not be a terrorist organization in terms of Article 24 of the Appendix to POTA as on 23.11.21022, it still remains to be seen as to whether the activities committed https://www.mhc.tn.gov.in/judis 35 W.P.Nos.38873 of 2005 & 1377 & 36989 of 2016 & WP.No.5386 of 2006 by the petitioners would attract the provisions of Section 3(a) and (b) of the POTA.
89. The petitioner has relied upon a judgment of the Hon’ble Supreme Court in the case of Vijaykumar Baldev Mishra @ Sharma (supra). The Review Committee in that case was constituted pursuant to the directions issued in Kartar Singh (supra) that upheld the validity of the TADA. The committee was directed to review those cases where trial was yet to commence and inter alia, the Hon’ble Supreme Court also made reference to its judgment in the case of State v. Nalini [(1999) 5 SCC 253]. This judgment explains the context in which a ‘terrorist Act’ would be seen to have been committed.
90. They hold that the commission of the following four acts i.e. (i) to overawe the Government as by law established; (ii) to strike terror in people or any section of the people; or (iii) to alienate any section of the people; or (iv) to adversely affect the harmony amongst different sections of the people, was committed ‘with intent’, such an act would qualify to be a terrorist act.
91. This, thus would be the canvass within which one would examine whether a terrorist act would be stated to have been committed. In that case the Public Prosecutor appearing for the prosecution had, after application of mind represented that he wished to withdraw the case. His submission was on the ground that the entire proceeding was based on certain confessions and such https://www.mhc.tn.gov.in/judis 36 W.P.Nos.38873 of 2005 & 1377 & 36989 of 2016 & WP.No.5386 of 2006 confessions would not be available, if the accused were not to be proceeded with against TADA.
92. The Review Committee, the Court found had made recommendations considering all relevant facts and materials on record. The recommendations were also based upon the legality of the charges under TADA and considering the same, the conclusion had been that the accused had, had no intention to strike terror in people or any section of the people and in fact the murder committed was only on account of inter group rivalry.
93. Based on this, and after application of mind, the Public Prosecutor had wished to withdraw the charges, which permission was refused. The refusal to grant permission by the designated Court was set aside by the Hon’ble Supreme Court in the following terms:
’17.While refusing to grant permission, the Designated Court, in our opinion, was not correct in expressing its opinion in the merit of the matter and the effect of confessions made in terms of the provisions of TADA. It was, however, also not necessary to consider as to whether, the action of the public prosecutor as also the State was bonafide or not. Moreover, bonafide on the part of the public prosecutor itself cannot automatically lead to grant of consent. There are other circumstances also which are required to be taken into consideration.’
94. By a separate but concurring judgment, Justice Markandey Katju had opined that the institution or continuance of the proceedings even after the https://www.mhc.tn.gov.in/judis 37 W.P.Nos.38873 of 2005 & 1377 & 36989 of 2016 & WP.No.5386 of 2006 expiry of the act is violative of Article 14, both from the legal as well as the common sense point of view. The findings of the Review Committee impugned in this case are only prima facie and in my considered view, reliance upon this judgment would not be of any assistance in the present case.
95. Thus, even assuming that the petitioners are not members of a banned terrorist association as on the date of the incident in question, there are, prima facie, sufficient evidences to indicate that they had, prima facie, committed a terrorist act when tested in light of the ingredients of Section 3(1)(a) and (b) of the POAT and (i) had aided/promoted the objects of RYL as literature relating to that organisation was found in the vicinity of the premises where they were found (ii) were found to be in possession of ammunition and explosives capable of causing mass destruction (iii) had engaged in exchange of fire with the police officials leading to both loss of human life as well as grievous injury,
96. Coming to W.P.Nos.1377 and 36989 of 2016, where a mandamus has been sought, the constitution of the review committee has taken into account the cases of all petitioners in totality and I am of the considered view that the cases of Ragini alias Bharathi and Sundaramurthy have been included in such consideration.
97. No doubt the review committee has gone on a general appreciation of the matter and has also noted that the procedure has set out under the applicable https://www.mhc.tn.gov.in/judis 38 W.P.Nos.38873 of 2005 & 1377 & 36989 of 2016 & WP.No.5386 of 2006 acts does not appear to have been followed to a T.
98. As pointed out by learned counsel for the petitioner, the confession of Gurusamy has weighed significantly with the review committee. Learned counsel for the petitioner has raised a specific argument that such a confessional statement can only, per se bind the confessor and not his co- accused and according to him, the law is clear in this regard.
99. Whether this is fatal to the proceedings is a matter to be decided in trial and will, no doubt, be considered by the Special Court.
Conclusion
100. For the aforesaid reasons, all writ petitions, W.P.Nos.38873 of 2005 and 5386 of 2006 and W.P.Nos.1377 and 36989 of 2016 are dismissed. The following directions are issued in consequence of this conclusion.
Directions
101. (i) The case before the Special Court has been pending for 19 long years and must be concluded expeditiously, and in any event with a period of 10 months from 02.01.2023.
(ii) The specific request of the petitioners is that they must be provided with legal assistance and the Division Bench of this Court in its order dated 10.12.2008 has found merit in their plea. Though there are rival contentions in regard to whether such assistance has been provided or not, I https://www.mhc.tn.gov.in/judis 39 W.P.Nos.38873 of 2005 & 1377 & 36989 of 2016 & WP.No.5386 of 2006 choose not to delve on the technicalities of the matter and in the interests of a quick resolution of the matter direct the State to provide a list of eligible and available counsel to represent the petitioners in the trial, within 48 hours from date of receipt of a copy of this order.
(iii) The petitioners shall indicate their preference/choice of counsel within another 48 hours from the receipt of the list. If they choose not to indicate their preference within the time frame as set out, they shall be left to their own devices in the manner of appointment of counsel.
(iv) Trial shall commence on 02.01.2023, shall be conducted on a day to day basis and shall stand concluded within a period of 10 months from that date.
102. Connected miscellaneous petitions are closed with no order as to costs.
16.12.2022 Index : Yes Speaking Order Sl To
1.The Chairman, Review Committee on POTA (Constituted under section 60 of POTA, Act 2002) https://www.mhc.tn.gov.in/judis 40 W.P.Nos.38873 of 2005 & 1377 & 36989 of 2016 & WP.No.5386 of 2006 Vigyan Bhavan, Annexe, New Delhi-1.
2.The State Represented by its Home Secretary, Secretariat, Fort St. George, Chennai-9 Government of Tamilnadu.
3.The Chief Secretary, Government of Tamil Nadu, Fort St. George, Chennai-600 009.
4.The Principal Secretary to Government, Home (Pol.VII) Department, Fort St. George, Chennai-9.
https://www.mhc.tn.gov.in/judis 41 W.P.Nos.38873 of 2005 & 1377 & 36989 of 2016 & WP.No.5386 of 2006 DR.ANITA SUMANTH,J.
Sl W.P.Nos.38873 of 2005 & 1377 & 36989 of 2016 & WP.No.5386 of 2006 WMP.Nos.1150, 31802 & 31803 of 2016 https://www.mhc.tn.gov.in/judis 42