Gujarat High Court
Sardarji vs Union on 12 February, 2009
Author: Bhagwati Prasad
Bench: Bhagwati Prasad
SCR.A/504/2008 36/ 36 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 504 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= SARDARJI MAGANJI WAGHELA S/O MAGANJI WAGHELA - Applicant(s) Versus UNION OF INDIA THRO SECRETARY & 106 - Respondent(s) ========================================================= Appearance : MR. S.B. VAKIL, ld. sr. counsel with Mr. Vijay H. Patel of M/s. H.L. Patel, advocates for the petitioner MR. GOPAL SUBRAMANIAM, ld. Additional Solicitor General with Mr. Harin Raval and Mr. Hriday Buch for respondent No. 1. MR. KAMAL TRIVEDI, ld. Advocate General with Mr. J.M. Panchal, Special Public Prosecutor & Mr. K.J. Panchal, Additional Special Public Prosecutor for respondent No. 2 MS. NITYA RAMAKRISHNAN, ld. advocate with Mr. S.M. Vatsa and Mr. Rohit Verma for respondent Nos. 3 to 99 DELETED for Respondent(s) : 10, 21, 48,95 - 98, 100, ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 12th /02/2009 CAV JUDGMENT
(Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD)
1. In the present petition, the petitioner has challenged the opinion of the Review Committee (hereinafter referred to as ¿Sthe Committee¿¿ formed under the Prevention of Terrorism (Repeal) Act, 2004 (hereinafter referred to as the ¿SRepeal Act¿¿. In the petition, the following prayers were made:
(a). Issue a writ or order or direction of an appropriate nature quashing the notification dated 4.11.2004 establishing Review Committee itself, being Annexure-A to the writ petition;
(b) Issue a writ or order or direction of an appropriate nature quashing the report dated 16.5.2005 passed by the Review Committee in FIR I-9 of 2002 registered with Godhara Railway Police Station being Annexure-B to the writ peititon.
1.2. Out of the prayers made, first prayer has been given up. The case is argued to seek the remaining relief.
1.3. Learned Senior Counsel Mr. S.B. Vakil started his arguments and submitted that he shall be addressing the Court on the following points including others..
(1) There is no opinion expressed by the Committee which can be considered to be a statutory opinion, as Section 2(3) of the Repeal Act contemplates, namely there is a prima facie case for proceeding against the accused.
(2) The view of the Committee that the incident did not take place as part of conspiracy as envisaged under the provision of the Prevention of Terrorism Act, 2002 (hereinafter referred to ¿SPOTA¿¿) does not tantamount to say that there is no prima facie case to proceed against the accused under POTA.
(3) The Committee had no jurisdiction to issue any direction that the persons may be tried under the particular provisions of law.
(4) The Committee was not competent to express any view that the accused persons shall not be tried under POTA because it was possible only if the Committee had formed a requisite opinion.
1.4. Learned Senior Counsel Mr. S.B. Vakil has submitted that the Committee has not expressed any opinion qua each accused separately. The Committee's view is not authorized under the statutory function to form a prima facie opinion whether there is a case to proceed against the accused. The Committee has failed to appreciate as to what is prima facie case for proceeding and expressed its opinion on a misconceived view of law as to how it should come to a finding.
1.5. Learned Counsel has submitted that so far as accused persons at Nos. 49, 50, 51, 52 and 71 are concerned, the question was barred by res judicata and the Committee could not have taken a contrary view. Any view of the Committee contrary to the view of the High Court is required to be held bad and contrary to this case of law.
1.6. Learned Counsel has further submitted that the High Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, can only quash the decision of the Committee but will not substitute its own view.
1.7. It is submitted that the opinion which the Committee was asked to form under Section 2(3) of the Repeal Act was qua each of the accused, it cannot be collective. Thus the Committee having not addressed its opinion qua each accused, it has misdirected itself. Language of Section 2(3) of the Amendment Act shows that opinion qua individual accused should have been formed as is evident from the statutory provision.
1.8 It was required to be opined whether the proceedings against all the accused or individual accused are required to be sustained. There is no prima facie case was to be stated in the true spirit or against individual accused, a case is not made out as delineated in the Section. The opinion formed is ultra vires. It does not say all the accused. Difference between article ¿Sa¿¿ and ¿Sthe¿¿ was required to be understood and explained, while expressing opinion.
1.9. It refers to the accused in the proceeding. The Legislature does not intend that simply because there may be no case to proceed against one or some accused. It will not proceed against all of them.
1.10. The opinion of the Committee is limited to a simple facet that there is no prima facie conspiracy case against the accused. Therefore, no case is made out to apply POTA in the whole case.
1.11. It was further submitted that the Committee has not applied its mind. It has just recorded some findings. Not only that, on the basis of some finding and de hors Section 2(3) of the Repeal Act, it has chosen to issue directions. What can be the value of such directions. The directions when judged on the anvil of sub-Section (3) of Section 2, they would be ultra vires. Therefore, it is liable to be struck.
1.12. Relying on the Supreme Court judgement, it is stated that if there is some evidence to proceed then no opinion can be formed. The Committee cannot ignore the decisions of the Supreme Court/High Court. It has not addressed itself on this aspect. Therefore, the opinion is not a sound opinion.
1.13.
It was submitted that the approach of the Committee was not in conformity with the judicial principle. The Committee has acted as a Judge.
1.14. It was submitted that the cause of the incident was quarrel. Conspiracy hatched at Aman Guest House. Crowed was there. The Committee comes to the conclusion of bogus assemble of the crowd which according to the prosecution, were members of the conspiracy. In arriving at this conclusion the Committee becomes more of a Special Court. Law does not contemplate such a contingency. The Committee had no inherent powers, then from where such powers have been derived.
1.15. It had not considered the judgements of the Hon'ble Supreme Court which have the relevance on the very point. Whether there is a case to proceed against the accused? Had it considered those judgements, it would not have fallen in this trap, in which it has.
1.16. For attraction of POTA, examination of the case of each of the accused was necessary. What kind of conspiracy is envisaged under POTA has not been defined. No essential ingredients are seen in the Act. The Committee finds that it was a mob. An inference which is beyond the scope of its powers.
1.17. It is submitted that the Committee has crossed the boundaries which are set by the Act. Whether the provisions of POTA are attracted was the question to be answered. It was not entitled to give any benefit of doubt and say that POTA offence should not be tried and only ordinary penal offence was required to be tried.
1.18.
Learned counsel commented that the observations which are made, was not at all the function of the Committee for considering whether there is case to proceed. The Committee was not there to either convict or acquit the accused. It is only to examine the case under Section 2(3) of the Repeal Act.
1.19. Question of bar of res judicata was raised and submitted that even in criminal cases res judicata or principle of finality applied. In this regard, learned counsel relied on the observation of this Court while deciding various bail applications. He drew support from the following cases:
1.
K.G. PREMSHANKAR VS. INSPECTOR OF POLICE reported in AIR 2002 SC 3372
2. KALYAN CHANDRA SARKAR VS. RAJESH RANJAN reported in AIR 2005 SC 921 1.20. The principle is based upon basic principle ¿ There is finality which has already been reached so far as the same accused is concerned in bail application 1.21. It would not be fair on the part of the Committee to express opinion on reliability of the evidence on any minute ground that is the same approach to decide whether there is a case to proceed. The Committee cannot go on minute ground. The Committee came to its own different conclusion and it elavated itself above the High Court and Supreme Court. A Committee which is subject to the superintendence of the High Court, had not considered, the observations made by this Court were final observations on issue of prima facie case. Once the High Court has in a proceeding between the same accused and the State Government takes a view that there is a prima facie case, it is not the function of the Committee to take a different view. The Committee is not outside judicial discipline. The Committee is as much as subject to judicial discipline.
2.1 Replying to the arguments, the following submissions have been made by Mr. Gopal Subramaniam, learned Additional Solicitor General.
2.2. POTA Repeal Act and its provisions provide a filtering mechanism made to judge whether the use of POTA was bona fide or not. It was general feeling in the public that it is a draconian law and it goes to contrary to the legislation. It contains statutory presumption. It contains harsh condition . It contains even prolonged conditions in respect of custodial interrogation as well as judicial custody in comparison to the normal Criminal Procedure Code. We have a system of the Committee being constituted. This Committee was intended to be formed. It was intended to be a mechanism by which bona fide of a proceeding under POTA was meant to be justified particularly when Parliament intended to repeal POTA and in fact the Parliament decided that POTA must be repealed.
2.3. The Court has to consider point of view of the aggrieved persons. The Court has to appreciate what is the meaning of the expression ¿Saggrieved person¿¿. If a persons is truly aggrieved by an order of the Court, he will have case because to have judicial review can never form two parallel.
2.4 It was argued that there was altercation. There is pre-existing conspiracy. The Committee says that there was no pre-existing conspiracy. It indicates that there was rumour and there was provocation but whatever there was, it was one which did not really fall within the definition of a case of terror for which POTA is intended. This opinion is really one of perception. Of course there must be perception, which must be one which is plausible perception. In Article 226 of the Constitution of India what is necessary for us to see that it is a reasonable perception, it is not unreasonable and perverse. Prima facie we are bothered to proceed to determine the question whether charge should be framed.
2.5.
The term `prima facie' is with reference to Terrorist Act because the substance of this Act is to handle terror, it has to punish the terrorist. Therefore, there must be prima facie case. Terrorist act has to be by the persons named and can proceed under this particular Act. This is a criminal statute like other one with the meaning of the prima facie but consider this special mechanism which has stringent provision. It is really to see whether the element of terrorist Act existed.
2.6. Here the issue which arises is that prima facie case to proceed means you have materials before you. There is distinction between prima facie case for cognizance and prima facie case for proceedings against the accused, for the purpose of setting law in motion.
2.7. Under Section 190 of the Criminal Procedure Code the learned Judge looks at the substance of the charge-sheet at the time he takes cognizance.
2.8. The function of the Committee is the same as taking cognizance, really speaking one which actually will be within the provisions of POTA. Then the Committee decides ¿ there is prima facie case, there is no prima facie case in the light of the object of the Repeal Act. In that event the inquiry by the Committee is not like a trial. For proceeding we obviously mean the basis to proceeding akin to Sections 190 of Cr. P.C. 2.9. It is submitted that the review which is a mechanism contemplated under the statute is indeed which is not in the normal jurisprudence of the criminal justice system.
2.10.
Submission of the learned counsel is that whether the contextual meaning has to be assigned to prima facie case, if answer would be ¿SYes¿¿, then it would follow purposive interpretation.
2.11. Relying on the judgement in the case of S.K. SHUKLA VS. STATE OF U.P. reported in AIR 2006 SC 413, particularly, paragraph No. 31, it is submitted that it should not be mechanical, it must be reasoned and it must be open to scrutiny.
2.12. Charge-sheets are taken as they are. If the facts which are consequent and keeping in mind the ingredients of Terrorist Act under Section 3(1) of POTA. Individual allegations are not the basis of charge. In supplementary charge-sheet, POTA is added indicating conspiracy.
2.13. Group of persons that assemble in response to a panic call spontaneously given by other group of 20 persons who were there. How does the Committee decide whether it is terrorist Act or not? Various things to be taken into consideration. 19 boxes, large number of people who were travelling on train, number of casualties with reference to localised area has also been taken into consideration, extensive damage, totality of the incident though shocking falls short of an offence under POTA. It is a simple criminal act.
2.14. It is submitted that provisions of Indian Penal Code and POTA are different. There is an opinion formed by the Committee. Is this opinion fair and rational opinion? The Committee found that it was rational and rightly so.
3.1 Mr. Kamal Trivedi, learned Advocate General appearing for the State of Gujarat while supporting the petitioner, submitted that the order of the Committee is a perverse order. This is the opinion which is against the weight of the evidence. He referred to the statement on record of the witnesses.
3.2. What is the scope of trial of Session case under Sections 226, 227, 228, 239, 240 and even under Section 190 of Cr. P.C. The Magistrate takes cognizance in the matter. In a particular contextual meaning if one finds there was something we have to conclude that whatever ingredients of offence and understanding prima facie the same ingredients are with respect to Section 2(3) of the POTA Repeal Act. Whether one makes purposive interpretation or contextual interpretation. At this stage one need not go to the probative value of the material. One should not go into the infirmities of those material.
3.3 The other area which is completely overlooked is of the voluminous evidence. There are as many as 24 statements recorded. Six confessional statements of the accused are recorded under Section 32 of POTA before the learned Magistrate. There are as many as eight confessional statements recorded under Section 164 of the Cr. P.C. There are ten statements recorded under Section 161 of the Cr. P.C. None of the statements have been taken into consideration by the Committee. The Committee has misdirected itself, it has acted as if it was to conduct trial. The issues are not germane to the case. Such issues have been addressed which has nothing to do with the case and are extraneous considerations. Therefore, this particular writ. Nothing will turn out from the fact that the State has not chosen to challenge the findings of the Committee. It can always support the other party coming to the Court. There is a lapse which will have no serious bearing on the consequences. Here an aggrieved person has come and that satisfied the requirement of locus standi.
3.4 One is to look into the intention of parties. The intention is the gist of offence which is required to be taken on the basis of the circumstances. The circumstances of collected steps which are demonstrated as to at what time train leaves Ayodhya, it reaches at Ahmedabad. It is not coming at 3 O'clock. When it is likely to reach? Prior to the day of the incident, collective steps taken to collect huge quantity of petrol, which are being stored in Aman Guest House which is in the vicinity of railway. Train came on the platform. At that time people being instigated that a muslim girl was taken away. Perhaps the Committee swayed away. It was because of that the people got outrageous. Where from the muslim girl came? There has to be some logical end. Few people pulled the chain. Train comes to halt for 4 minutes. It started and moved from the station, once again chain is pulled. After some time it stops beyond the platform, about 500 to 800 mtr. near ¿SA¿¿ cabin which is a lonely area occupied by a particular community, there is already crowd gathered in big number. This crowd gathered with weapons like dharia, guptis, inflammable substance. There was instruction from one person Maulvi to burn S-6 coach of the train. People are made to wait near mosque for achieving a particular object. If one takes all these circumstances together, what is observed, is an intention on the part of not one or two but so many. The accused were from a particular community. There is breaking of unity of a section of people. It amounts to an attempt to create terror.
3.5 On reading Section 3(1)(a) of the POTA Repeal Act, it is stated that there was intention to break the unity, there was intention to create terror. The intention has to be gathered from the circumstances. There are confessional statements recorded under Section 32 of the POTA.
3.6 The intention is to strike terror in the people. What is happening at the end is that 59 persons are burnt alive and that too in respect of coach S-6.
3.7 The matter is at large before the Court wherein whether the perception that the Committee was right? Whether the perception of the Committee was right as compared to what is discernible from the record? What do the statements say? On one hand we find statement of Mr. Shaukat. What is stated in his confessional statement is not borne out from the opinion of the Committee. We find two sentences referred taking the matter of perception. The Committee believed the perception flowing from the police papers. It could not have said that I have looked everything into it. Then the contents of the opinion are justified. If it had taken each and every statement in consideration, which are the main statements and which are the statements filed along with charge-sheet. Having taken care of each of the statements, we do not think, the inference of the Committee that there is no attempt on the part of the accused to threaten the unity could have been arrived. The Committee overlooked all the statements in detail which requires this particular opinion to be quashed and set aside.
3.8 Section 3 of POTA takes care of two aspects. Threaten unity or to strike terror in the people or any section of the people . It is any act or thing by using bombs, dynamites or inflammable substance. It is one component. If there was intention of act was of threatening the unity, it becomes terrorist act or to strike terror in the people or in a section of the people. It is second component. Both the components exist in this case. Even if one of the components exists, one cannot say that POTA is not applicable. It was submitted that both the characteristics exist ¿ intention to threat the unity and to strike terror in the people. This is an act of terrorism prima facie we can draw the conclusion on the basis of this section. Section 3(1)(a) of the POTA.
3.9 It was argued that what should be the scope and purview of the Committee? Are there grounds to proceed against the accused? This is a test in all judgements with reference to Sections 226, 227, 228, 239 and 240 of Cr. P.C. What is the meaning of prima facie case? One does not find that Supreme Court has said prima facie case plus something. Reliance has been placed on the judgement in the case of STATE OF MAHARASHTRA & ORS. VS. SOM NATH THAPA & ORS. reported in 1996(4) SCC 659 ¿ particularly paras 27, 28,31, 32 and also the judgement in the case of SANGHI BROTHERS (INDORE) PVT. LTD. VS. SANJAY CHOUDHARY & ORS. Reported in AIR 2009 SC Page 9 ¿ paragraph Nos. 7 to 10.
3.10 On the previous day of incident, there was conference of conspiracy. There is instruction from a person - Maulvi. Huge quantity of petrol has been collected on the previous day. The very petrol has been used to burn the train coach S-6. This makes it clear that it was intended to strike terror and to break the unity. Were there circumstances prior to the occurrence of the incident and after occurrence of the incident. All statements should have been read by the Committee. Statement as read by the Committee is the statement of Shaukat which is at page 225.
3.11 Learned senior counsel for the accused Ms. Nitya Ramakrishnan opposed the petition. She submitted that there was no terror made out from the material on record. The statement of muslim girl is in the charge-sheet.
3.12 The Committee was required to make a contextual and purposive interpretation which it has done.
3.13 She also raised objection about delay. According to her the Committee gave order three years before and the petition is belated. A valuable right has accrued to the accused.
4.1 Learned senior counsel Mr. S.B. Vakil submitted in rejoinder that the impugned report of the Committee suffers from jurisdictional error. Submissions are made under three heads: (1) Failure to exercise jurisdiction meaning thereby that the Committee has failed to perform the assigned task or function. (2) The Committee exercised its jurisdiction which it did not vest in it by law. (3) The Committee has exercised its jurisdiction illegally.
4.2 The first submission is that the Committee has failed to perform its assigned task or function. The assigned task was to form opinion whether there is prima facie case for proceeding against the accused thereunder or not. Now this task has not been performed by the Committee.
4.3 The Committee has not performed the assigned task/function or exercised the assigned jurisdiction. It has not exercised the jurisdiction. It is apparent that when we read conclusive paragraph No. 40 and even if we go through the whole report of the Committee, nowhere in the report there is any finding that there is no prima facie case to proceed against the accused thereunder. There are two aspects on which the Committee has misdirected itself. The Committee has misdirected itself on the meaning of the word ¿Sthe accused¿¿. The accused here are not referred to as the accused collectively.
4.4 The question is that what do we find in the charge-sheet. In the charge there are individual allegations. All the original charge-sheets are not here. It would not be possible for the Court to go through it.
4.5 We have to find out in the context of Section 3 ¿ punishment for terrorist Act ¿ There is no mention of conspiracy under Section 3(1) of POTA. It does not say conspiracy. If the act is done, we have assistance of Section 120B of IPC. POTA does not contemplate conspiracy. Section 120B of IPC contemplates conspiracy. It is not an offence under POTA. All the acts referred are individual. None of them is collective. It may be collective or it may be individual. Sub-section (1) of Section 3 of POTA does not envisage conspiracy.
4.6 Section 3(3) of POTA mentions act and also procedure for punishment ¿ Conspiracy under Section 3(3) of POTA. Section 3(1) of POTA refers to commission of terrorist Act. Section 3(3) of POTA refers to conspiracy. Section 3(3) is the only relevant section for our purpose which envisages conspiracy. That is what the Committee refers to. Conspiracy as envisaged under POTA is under Section 3(3).
4.7 The short argument is that conspiracy referred to here is a conspiracy ¿ conspires to attempt to committ, advocates, abets, advises, incite, facilitates the commission of terrorist offence. Now under this Section conspiracy is one offence, attempt to commit is second offence, advocates to commit is another offence, abets to commit is another offence, advising is another offence, incise or facilitate is also another offence. Sub-Section (3) of Section 3 does not lay down one offence. It lays down conspiracy as one offence which can come under sub-section (3) of Section 3 of POTA. Even in the absence of this conspiracy spoken under sub-Section (3) of Section 3, offence can exist which is made punishable under Section 3(2). Conspiracy is an offence under Section 3(3) and is one of the offences under Section 3(3).
4.8 Charge-sheet 18 as referred in the report, it has to be taken on the face value for the purpose of deciding whether prima facie case is there or not. All the individual acts will also be a relevant point of view of punishment. Same punishment will not be inflicted on the accused for committing offence and also part of unlawful assembly. Whether the Committee has applied its mind. The Committee has to apply its mind to all the offences and not to selected topics which it likes and to ignore everything else. That is not what Section 3(3) of POTA entrusts the Committee to do. All the accused irrespective whether they were part of any conspiracy have done individual acts. We cannot just record a finding.
4.9 It is also the submission that the Committee was required to express opinion on the individual case before giving direction that the case must be withdrawn. That this argument itself is moonshine.
4.10 The next aspect is Committee having not exercised the jurisdiction or exercised the jurisdiction which is not conferred ¿ The Committee's opinion that the incident happened but not as a part of the conspiracy. This is again not a prima facie finding. If we read the report of the Committee this particular finding has been recorded as final as if it is a finding arrived at trial on appreciation of evidence not merely taking the evidence on the face value.. This is also exercising the jurisdiction which is not vested in the Committee. The question of conspiracy is a very small part of the offence charged. Section 2(3) of the POTA does not confer upon the Committee any jurisdiction to record a part finding . The Committee cannot stick to those cases and record finding.
4.11 Exercise of jurisdiction not vested ¿ Jurisdiction to issue directions is a condition precedent. The condition precedent is that the Committee forms an opinion that there is no prima face case to proceed against the accused. That opinion is not formed. The condition precedent for issuing direction does not exist.
4.12 Exercising jurisdiction illegally ¿ Meaning of the word ¿Sprima facie¿¿ - MAHMADHUSEN ABDULRAHIM KALOTA SHAIKH VS. UNION OF INDIA reported in 2008(13) Scale 391 - observation of the Hon'ble Justice Bhandari and the Hon'ble the Chief Justice K.G. Balakrishnan ¿ observations regarding those errors and abuses. This topic or aspect is covered by the observation of the Hon'ble Supreme Court. Under Article 141 of the Constitution the view of the Supreme Court would bind in this Court. It was binding on the Committee but the report is earlier. Now it is binding when this Court exercise its jurisdiction under Article
226. This Court is bound by the view that is taken by the Hon'ble Supreme Court.
4.13 Be it purposive or contextual interpretation ¿ The Hon'ble Supreme Court has said that they are for the same purpose - Any effort now to impart a different context or purpose would be totally unavailable. Once the Hon'ble Supreme Court held in the context of this very provision or analogous expression, is it not to be understood that Supreme Court was not aware of the context.
5.1 We have heard learned counsel for the parties and also gone through the record. In this case what is sought to be challenged is the powers of the Committee which is constituted under the provisions of the POTA Repeal Act. The POTA has been repealed. In the savings it has been provided that the Committee shall review all cases registered under the principal Act to judge as to whether prima facie case for proceedings against the accused thereunder survives. Thus, we have to examine whether the Committee has examined the case from the point of view of finding out prima facie case against the accused (singular or plural) and such case against the accused has been found thereunder or not.
5.2 Principal argument at the bar is that while exercising the powers under Article 226 of the Constitution of India, this Court is not confined to exercise jurisdiction to the classical view which is available in a case of a writ of certiorari. Support has been taken from the judgement of the Supreme Court in the case MAHMADHUSEN ABDULRAHIM KALOTA SHAIKH VS. UNION OF INDIA & ORS (supra) where the Hon'ble Supreme Court has held at paragraph No. 31 as under:
¿SThe opinion of the 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 sufficient safeguard and deterrent against any wrong doing by the Review Committee.¿¿ Further at paragraph No. 74(41 the Apex Court has held as follows:
¿SOf 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 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, ¿S.... 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.¿¿ 5.3 On reading of the above case as decided by the Hon'ble Supreme Court, we have to see that in a proceeding under Article 226 of the Constitution while dealing with the case arising under POTA one has to be guided by the principles wherein sufficient safeguard against any wrong doing is to be put into force, to avoid errors and abuse.
5.4 In another case of S.K. SHUKLA & ORS. VS. STATE OF U.P. & ORS.
reported in AIR 2006 SC 413 the Hon'ble Supreme Court has examined the scope of powers of the Review Committee. The relevant observations of that case at paragraph No. 31 are set out as under:
¿S......The role given to the Review Committee under sub-Section (4) of Section 60 is very limited and it has only to see whether there is a prima facie case for proceeding against the accused under the Act or not.
The Review Committee has travelled beyond its scope, the sufficiency of evidence cannot be gone into by the Review Committee. It is also not the job of the Review Committee whether confession is admissible or not. Role assigned to Review Committee is very limited and if the prima facie case connects the accused on the basis of the material with the prosecution then it is not for the Review Committee to dilate on that as if they are trying the cases under the Act.¿¿ 5.5 The Committee while dealing with the case has quoted the charge-sheets, referred to the statements and formed an opinion that no case under POTA is made out.
5.6 Learned counsel for the petitioner has pointed out that the Committee in its ultimate finding expressed that incident had taken place on the date, time and place as alleged by the Prosecutor but certainly not as a part of conspiracy. Therefore, no case to proceed against the accused under POTA is made out. Referring to paragraph No. 40 of the POTA Committee's report, this has been canvassed by the learned counsel for the petitioner that the purport of Sections 3(2) and 3(3) of the POTA has not been correctly understood by the Committee. According to learned counsel, in sub-Section (2) of Section 3 of POTA punishment is provided for an act of terror for which definition is available in Section 3(1) of POTA. Learned counsel has further submitted that in sub-section (3) of Section 3 does not cover conspiracy alone but ingredients of other offences have also been referred. POTA Review Committee has not gone into these questions and therefore have not exercised jurisdiction vested in it.
5.7 To appreciate this argument of the learned counsel, we have to see that what effort has been made on behalf of the petitioner to support its argument that POTA Review Committee should have examined other offences apart from conspiracy. Reliance is placed on the decision of the Apex Court in the case of S. SETHURAMAN VS. R. VENKATARAMAN & ORS. Reported in (2007) 6 SCC 382 (para 26 at page 394) where it is observed as under:
¿S45(46) A judicial review of such an order would be maintainable. In a case of judicial review, where no appeal is provided for, the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India would not confine its jurisdiction only to the known tests laid down therefor viz. Illegality, irrationality, procedural impropriety. It has to delve deeper into the matter. It would require a deeper scrutiny.¿¿ 5.8 Another decision is INDIAN AIRLINES LTD. VS. PRABHA D. KANAN (SC) reported in AIR 2007 SC 548 (para 43 on page 559) where it is observed as under:
¿SA judicial review of such an order would be maintainable. In a case of judicial review, where no appeal is provided for, the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India would not confine its jurisdiction only to the known tests laid down therefor viz., illegality, irrationality, procedural impropriety. It has to delve deeper into the matter. It would require a deeper scrutiny.¿¿ 5.9 Here, what is important to note is that though the statements of witnesses have been filed on record, no effort was made on the part of the petitioner (to refer to any of the statements) to demonstrate or illustrate that any act of terror as defined under sub-section (1) of Section 3 or for that matter sub-section (3) of Section 3 is made out. Criticism rests only at the level that the case was not examined by the Committee in the light. Here we would refer to the fact that while supporting the case of the petitioner, the State Government has chosen to read the statement of few of the witnesses which finds place in the paper book at pages 278, 225 to 235 ¿ (Jabir Binyamin ¿ page 278, Shaukat @ Bano ¿ page 227, Salim @ Salman ¿ page 229/235). Having read these statements, no effort was made on behalf of the State Government as to which part of the statements make out a case which would be covered under definition of act of terror under Section 3(1) or Section 3(3) of POTA.
5.10 We asked the learned counsel for the petitioner why statements were not read by him and dilated upon. His answer was that he has not purposely read it.
5.11 Ordinarily, we should not have gone into appreciating the evidence as read by the learned Advocate General appearing for the State when he referred to the aforesaid statements but the parameters of the exercise of jurisdiction having been set by the Hon'ble Supreme Court to judge the case under POTA in the case of M.A.K. SHAIKH VS. U.O.I. (supra) and S.K. SHUKLA VS. STATE OF U.P. (supra) we chose to go deeper into the purport of the testimonies and when we make a reference to it and give a thought whether any act of terror as defined under Section 3(1) or Section 3(3) of the POTA is made out. On reading the statements, we find that none of such elements is emerging out from the reading of these statements. These statements are like the statements of ordinary witnesses of criminal case where animus of terror is not only not present but also we find it to be totally absent. Thus the statements that are available are not indicative of the factor, which would persuade us to hold that the finding arrived at by the Committee is not in consonance with the parameters as laid down to judge the case on hand.
5.12 Unity of public and terror ¿ there are two components indicated It was urged that when a compartment namely coach S-6 was desired to be burnt, the intention was an act of terror. All the inmates of the compartment were burnt alive as they were karsevaks of Ayodhya. Thus an attempt to break the unity of the communities was more than obvious.
5.13 It will be in fairness to observe that the incident is shocking. But every shocking incident cannot be covered by an definition of a statute which defines terror. It has to confine strictly to the language of penal statute. Such statutes are required to be interpreted strictly.
5.14 State speaking through Public Prosecutor before the Committee would not have given up the examination of the case of individual if there was an element of terror present in an individual act of the accused.
This abdication goes a long way. The whole act if judged from the evidence on record then it was more of individual fury. No identifiable group or individuals forming a group is identifiable from the evidence on record, thus denying strength to the arguments of the learned Advocate General.
5.15 There is an objection taken on behalf of the petitioner that while judging the opinion of the Committee, this Court will not substitute its own opinion and would only judge the correctness of the opinion of the Committee, we are not making an effort to give our opinion but we are only judging whether the findings arrived at by the Committee in its report fulfills the mandate of its exercise of powers under POTA Repeal Act ¿ Section 2(3). The opinion of the POTA Committee is also in paragraph No. 39 and other paragraphs where other facets of the case have been discussed. Thus, from the argument of the petitioner and support on behalf of State Government, that the opinion of the Committee is not in conformity with the powers vested in it under Section 2(3) of the Repeal Act, is not prima facie found by us. The Committee report has been examined by us in detail. It referrs to charge- sheet and statements of witnesses, to speak relevant material.
5.16 The learned counsel has also urged that the case was to be judged on the anvil of prima facie facts. The definition of ¿Sprima facie¿¿ is not available in both the Terror Acts. Incidentally, this expression is not being defined in Criminal Procedure Code but then test of ¿Sprima facie¿¿ has been widely used in the judicial Courts. It has become the rhythm of the breath of judicial adjudication process. When the statements on record have not been referred by the petitioner and have only been referred by the State Government and it has not been demonstrated or exhibited by any illustrative example to show that this particular segment of the statements makes out a case which is prima facie sufficient to hold that an act of terror is made out against the accused (plural or singular). Opinion which is under challenge cannot be found fault with because illustration if made, it would have recorded reasons and draw support from the record. We would not, therefore, concur with the challenge as expressed by the petitioner that the opinion expressed by the Committee is not statutorily valid. The Committee was to consider the material evidence before it. It did in right earnest. The material available to it was available to the petitioner to be exhibited or demonstrated before us which it has admittedly purposely not done. An effort was made by the State to read three statements and then being asked which part of it makes out a case of terrorist act, no illustration was attempted and the matter rested there. So also an effort was required to be made to show that it has the tendency of breaking the unity of the communities. Except broadly hinting, no serious attempt was made on this score as to how the unity was intended to be damaged.
5.17 In the enlarged scope of the exercise of jurisdiction, this Court would have definitely gone with the petitioner or the respondent State supporting the case of the petitioner because no appeal has been provided against the opinion of the Committee. Some amount of probing could have been done by making reference to the evidence but then we were not called upon to go into it with precision. The statements were cursorily only read by learned Advocate General without indicating any whisper emerging out of it, to infer that an act of terror was available to be prima facie established. Except that it was stated that karsevaks were burnt alive and slogans were raised on the instructions of a Maulvi who in particular received instructions was not indicated. While statements were read. We applied our mind and found that It was not at all intended to be spoken by the witnesses that any act of terror was conceived or was targeted to break the unit of the communities, we have no hesitation in holding that the material available lacks in details to establish the act of terror or break the unity of communities and therefore it cannot be said that the opinion expressed by the Committee is not statutorily couched opinion.
5.18 Another argument which was stressed at length before us by the learned counsel for the petitioner was that examination of cases of the individual accused was required to be made not in plural but in singular also. This argument was done by the petitioner perhaps without knowing that the Public Prosecutor before the Committee has urged so and noted in paragraph No. 24 that cases of the individual accused be not examined. Relevant part of the report dated 16.5.2005 at paragraph No. 24 on page 39 of the paper book is quoted hereinbelow:
¿Spara 24 ......... It was further argued by the learned Special Public Prosecutor that the Committee should not review the case against individual accused but only examine whether a case under POTA is made out. The examination of the role of the individual accused is the function of the trial Court¿¿.
5.19 Even though the learned Public Prosecutor was not desirous of the case being examined of the individual accused, the case was examined by the Committee. While examining it had refrained to make a fishing inquiry but nonetheless has made a review of the material available before it.
5.20 The conduct of the learned Public Prosecutor in asking the Committee not to judge the case of the individual accused clearly demonstrates the parameters in which the State wanted the Committee to operate. Now in extraordinary jurisdiction, if this objection is taken then this Court feels that this is blowing hot and cold by the State and the complainant. In any case, the Committee had to an extent addressed itself to the individual case also and in absence of any illustrative example put before the Committee or us, we have no hesitation in holding that there was hardly any material available as opined by the Committee to conclude that case under POTA is made out against the individual accused.
5.21 It was argued on behalf of the petitioner that in certain orders the Division Bench of this Court has expressed opinion that a prima facie case is made out against the persons under POTA that those findings of the High Court should be taken to be binding. The opinion expressed by Division Bench of this Court should be considered to be binding on a Statutory Committee. The Committee has not considered those opinion as binding opinion on it . The opinion expressed by the Division Bench while deciding the bail applications is clearly an opinion that a case under POTA is made out. The scheme of the POTA Act is while considering the bail application, the authority hearing the bail application is required to address all the ingredients of the offence and see , possibility of the act, having been committed in that light. Observations of the Division Bench of this Court have been read to us as well.
5.22 Relying on the decision of the Hon'ble Supreme Court in the case of KALYAN CHANDRA SARKAR VS. RAJESH RANJAN reported in AIR 2005 SC 921, learned senior counsel for the petitioner submitted that in criminal cases res judicata or principle of finality applied. Relevant paragraph No. 19 of that judgement is set out as under:
¿SThe principles of res judicata and such analogous principles although are not applicable in a criminal proceeding, still the Courts are bound by the doctrine of judicial discipline having regard to the hierarchical system prevailing in our country. The findings of a higher Court or a co-ordinate bench must receive serious consideration at the hands of the Court entertaining a bail application at a later stage when the same had been rejected earlier. In such an event, the Courts must give due weight to the grounds which weighed with the former or higher Court in rejecting the bail application. Ordinarily, the issues which had been convassed earlier would not be permitted to be re-agitated on the same grounds, as the same it would lead to a speculation and uncertainty in the administration of justice and may lead to forum hunting.¿¿ 5.23 Having considered the arguments in the light of the Hon'ble Supreme Court decision which the learned counsel for the petitioner has chosen to rely on, we are constrained to observe that principles of res judicata are alien to the criminal law.
The classical view of res judicata is not germane in criminal law . In Civil Law, Code of Civil Procedure makes provision for res judicata but no such provision is available in Criminal Procedure Code. However, in certain contingencies the Courts have taken the view that though res judicata in its classical sense should not be applicable to the criminal law but, issue estoppal, would be available, where certain points have been governed by any decision they may not be examined again. If we look to the case cited by the learned counsel for the petitioner and the principles which govern the criminal law, then we find that any opinion expressed at the interlocutory stage while deciding bail application can at best be considered to be relevant in deciding a fresh bail application. Invoking the findings given in order of bail being applied at any other level is not known to criminal law. No such opinion is available from the case cited by the learned counsel for the petitioner that it can be collaterally used. In that view of the matter we are of the considered opinion that principles of res judicata cannot be applied in the present lis and the opinion expressed by this Court while deciding bail application cannot be considered to be binding on the Committee while judging the prima facie case.
5.24 The learned senior counsel for the petitioner has pointed out that the Committee has no power to issue any directions for being proceeded under other law and therefore it has exercised jurisdiction not vested in it. Suffice it to say that not every illegal exercise of jurisdiction is required to be cured in exercise of powers under Article 226 of the Constitution of India. In any case the Committee's jurisdiction was to judge whether POTA is made out or not . It did so rest is only an opinion about the future course. It may and may not be given a weightage. Issuance of directions to proceed against the accused in ordinary law is not, which can be gone into in this petition notwithstanding the direction. The criminal Court will examine the material before it and then will take appropriate course. The Committee's domain was only to judge whether there is POTA case or not and once it has held that there is no POTA case then what else is to be done and not to be done in ordinary law and parlance is with criminal Court exercising jurisdiction.
5.25 The question of locus standi was referred by the parties. But the the case having been argued on merits, we are not going into it.
5.26 Another aspect which is referred to by the counsel for the accused and replied by the learned counsel for the petitioner is the question of delay. The case started in the year 2002. We are in 2009. The opinion of the Committee was expressed on 16.5.2005, more than 3 years have gone by. It is heartening to note that the accused is so far not aware of what offence they will be charged with and ultimately tried. State has not chosen to challenge the opinion of the Committee which is the custodian of criminal law . Only private complainant has chosen to challenge. We do not propose to hold that the private complainants are not aggrieved persons but a valuable right has accrued to the accused from the passage of time and in that view of the matter, the Committee's opinion is required to be considered to have become final. The petitioner has chosen to say that until the MAHMADHUSEN ABDULRAHIM KALOTA SHAIKH's case was decided they had recourse to Section 321 of Cr. P.C. but now that course is closed thus a belated challenge. This aspect will loose its strength in view of the fact that change in law is a dynamic feature, a litigant thus has to use his discretion at all times.
5.27 The argument about examination of cases of the individual accused was raised in this petition. It was when the Public Prosecutor had given up this before the Committee. It was raised in relation to certain accused because while considering their bail application this Court has considered that there is prima facie case under POTA made out against that accused. Suffice it to say that such finding was necessary to decide the bail petition as terror statute required. These findings will be binding on the Committee is not the intention of law. Thus, this argument is noticed only to be rejected.
5.28 The Hon'ble Supreme Court has given a meaning to the review mechanism i.e. filter. In the process of ordinary filteration, the particles are not segregated by chemical compositions. They get separated by size. Thus, an adhocism is seen in the whole process. In that light in judging prima facie case that attitude was required by the Committee which was adopted by it.
5.29 In criminal law it is often said that intention is what the intention does. The miscreant did a criminal act ¿ yes but an act of the nature defined under POTA ¿ `no' is an opinion of a High Powered Review Committee. None of the consequences as indicated in POTA prima facie coming out to hold that an act of terror of disturbing the unity of the communities is made out.
5.30 In the result, we find that in abstract it is not possible to find a prima facie case. The petitioner has not referred to any statements of witnesses to sustain its case. It has emphasized that the findings on bail applications be considered as res judicata and thus held to be conclusive. We have disagreed with the proposition. Findings in bail application, if at all are restrictive then they are for forum hunting. Petitioner was very emphatic that cases of individual accused were not examined. State has also urged so. It was done ignoring the request of the learned Public Prosecutor before the Committee. It being a contrary position cannot be appreciated. Theoretically argued by the petitioner that other offences as Section 3(1) and Section 3(3) were not discussed by the Committee, thus failed to exercise jurisdiction vested in it. No demonstration was made before us that from any particular evidence a case is made out. In fact, it was submitted by learned counsel for the the petitioner that he has not read the evidence purposefully. Maybe to keep things vague. When individual case was not pressed it only made an option for collective offence to be enquired and that means conspiracy, which has been held to be not pressed thus there has been proper exercise of jurisdiction as required.
5.31 Thus we find that a shocking incident as it is capable of being treated as a serious criminal act falls short of the requirement of an act of terror. Therefore, we find no infirmity in the opinion of the Committee, as challenged. Consequently, we dismiss the writ petition with no order as to costs.
(BHAGWATI PRASAD, J) (BANKIM N. MEHTA, J) (pkn) Heard
learned counsel for the parties. After pronouncement of the judgement, an oral application was made on behalf of the petitioner that effect and operation of the judgement wherein it would follow that the cases would stand transferred from Special Judge to the Sessions Court, complications may arise and in that view of the matter, the effect and operation of the judgement in question may be stayed for a limited period to enable the petitioner to approach the Hon'ble Supreme Court. State has joined in the request. The respondents opposed the request on the strength of the order of the Hon'ble Supreme Court in bail application in Crl. M.P. No. 5643-5647 of 2007 dated 1.12.2008, particularly paragraph No. 4. We feel that if time of two weeks is granted, no prejudice would be caused to the parties. Therefore, the Courts below will stay off their hands for two weeks to enable the petitioner to approach the higher forum. With this direction, the oral prayer is disposed of.
Date:
12.2.2009 BHAGWATI PRASAD, J) (BANKIM N. MEHTA, J)