Anusuyaben Sadashiv Jadav And Anr. Vs. Union of India and Ors.
EmailAppeal: Crl.M.P.Nos.5643-5647 of 2007
[Arising out of SLP (Crl.) A. Nos.1651-1652 of 2008]
With
Crl.M.P. No. 4506/2007 Arising out of SLP Crl.A.No.1113/2005, 5639-5642, 5648-49/2007, 5981-5986/2007, 8315/2007, and 15724-15725/2008 IN Crl.A.Nos.1651-1652/2008
[Arising out of SLP (Crl.) A. Nos.1651-1652 of 2008]
With
Crl.M.P. No. 4506/2007 Arising out of SLP Crl.A.No.1113/2005, 5639-5642, 5648-49/2007, 5981-5986/2007, 8315/2007, and 15724-15725/2008 IN Crl.A.Nos.1651-1652/2008
Petitioner: Anusuyaben Sadashiv Jadav And Anr.
Respondent: Union of India and Ors.
Apeal: Crl.M.P.Nos.5643-5647 of 2007
[Arising out of SLP (Crl.) A. Nos.1651-1652 of 2008]
With
Crl.M.P. No. 4506/2007 Arising out of SLP Crl.A.No.1113/2005, 5639-5642, 5648-49/2007, 5981-5986/2007, 8315/2007, and 15724-15725/2008 IN Crl.A.Nos.1651-1652/2008
[Arising out of SLP (Crl.) A. Nos.1651-1652 of 2008]
With
Crl.M.P. No. 4506/2007 Arising out of SLP Crl.A.No.1113/2005, 5639-5642, 5648-49/2007, 5981-5986/2007, 8315/2007, and 15724-15725/2008 IN Crl.A.Nos.1651-1652/2008
Judges: K.G. Balakrishnan, CJI., R.V. Raveendran & Dalveer Bhandari, JJ.
Date of Judgment: Dec 01, 2008
Appearances:
Mrs. Sheela Goel, Advocates for the Petitioners.
Mr. Sushil Kumar, Senior Advocate, Ms. Sandhya Goswami (for Mr. B.K. Prasad), Ms. Sushma Suri, Mr. P. Parmeswaran, Ms. Hemantika Wahi, Ms. Pinky Behra, Ms. K. Enatoli Sema, Mr. Somnath, Ms. Kamini Jaiswal, Ms. Nitya Ramakrishnan, Mr. Trideep Pais (for M/s. K.J. John and Co.), Advocates with him for the Respondents.
Mr. Sushil Kumar, Senior Advocate, Ms. Sandhya Goswami (for Mr. B.K. Prasad), Ms. Sushma Suri, Mr. P. Parmeswaran, Ms. Hemantika Wahi, Ms. Pinky Behra, Ms. K. Enatoli Sema, Mr. Somnath, Ms. Kamini Jaiswal, Ms. Nitya Ramakrishnan, Mr. Trideep Pais (for M/s. K.J. John and Co.), Advocates with him for the Respondents.
Head Note:
Criminal Laws
Prevention of Terrorism (Repeal) Act, 2004
Section 33 – Criminal Procedure Code, 1973, Section 439 – Bail – POTA cases – Bails of various accused rejected earlier – POTA repealed in 2004 – Prosecution deemed to be withdrawn – Provisions of Repealing Act, held valid – Judgment holding that in spite of deemed withdrawn, procedure under Section 321 of the Code has to be followed, already set-aside by Supreme Court. Held that bail applications filed by accused have to be reconsidered, by concerned sessions court.
Prevention of Terrorism (Repeal) Act, 2004
Section 33 – Criminal Procedure Code, 1973, Section 439 – Bail – POTA cases – Bails of various accused rejected earlier – POTA repealed in 2004 – Prosecution deemed to be withdrawn – Provisions of Repealing Act, held valid – Judgment holding that in spite of deemed withdrawn, procedure under Section 321 of the Code has to be followed, already set-aside by Supreme Court. Held that bail applications filed by accused have to be reconsidered, by concerned sessions court.
Held:
In the light of the said judgment, upholding the deemed withdrawal of cases under POTA, the bail applications filed by the accused have to be considered afresh. In all these cases wherever the Review Committee has recorded its opinion that there is no prima facie case for proceeding against the accused, the accused are not to be tried under the provisions of the POTA. (Para 3)
All these petitions/applications for bail/impleadment are permitted to be withdrawn with liberty to move for bail before the concerned Sessions Court after the records are received on transfer. In the event of filing such applications, the Sessions Judge shall consider the same on merits untrammelled by the observations, if any, made by the superior courts in any bail application filed by these respective petitioners. (Para 5)
All these petitions/applications for bail/impleadment are permitted to be withdrawn with liberty to move for bail before the concerned Sessions Court after the records are received on transfer. In the event of filing such applications, the Sessions Judge shall consider the same on merits untrammelled by the observations, if any, made by the superior courts in any bail application filed by these respective petitioners. (Para 5)
JUDGEMENT:
ORDER
1. Crl. M.P. Nos. 4506/2007 Arising out of Crl. No. 1113/2005, Crl. M.P. Nos. 5639, 5640, 5641 and 5642 of 2007 Arising out of Crl. A. Nos. 1651-1652/2008, which are connected cases, are also taken on board, at the request of learned counsel.
2. These are bail applications/applications for impleadment by the accused petitioners filed in POTA/criminal cases pending on the files of Special POTA Judge, Sabarmati, Ahmedabad and other courts in regard to POTA cases registered with Godhra police station, , Crime Branch, Ahmedabad City and Ellisbridge Police Station, Ahmedabad. In some of these cases, bail applications were rejected by the Special Judge and in some cases the same were rejected by the High Court and in some other cases by this Court.
3. Subsequently the Prevention of Terrorism (Repeal) Act, 2004 (for short ‘the Repealing Act’) was enacted. Certain provisions of the said Act were challenged. This Court, by judgment dated 21.10.2008, upheld the validity of Section 2(3) and (5) of the Repealing Act and also passed the following directions :
1. ‘the judgments under challenge to the extent they declare Section 2(3) and (5) of the Repealing Act are not unconstitutional, are upheld;
2. the judgments under appeal are set aside to the extent they hold that in spite of deemed withdrawal of the cases, the procedure under Section 321 of the Code has to be followed for withdrawal;
3. the appeals filed by POTA accused are allowed in part accordingly. The appeals by the relatives of victims are disposed of reserving liberty to challenge the opinions of the Review Committee, wherever they are aggrieved;
4. We do not express any opinion on the merits of the cases of the POTA accused or in regard to the opinions expressed by the Review Committee.’
In the light of the said judgment, upholding the deemed withdrawal of cases under POTA, the bail applications filed by the accused have to be considered afresh. In all these cases wherever the Review Committee has recorded its opinion that there is no prima facie case for proceeding against the accused, the accused are not to be tried under the provisions of the POTA. However, these accused have also been charged in regard to several non-POTA offences and these offences will have to be tried by regular Sessions Judges (or CBI Court). By virtue of Section 33 of the POTA, the Sessions Judge has to proceed with these cases as if he had taken cognisance of these offences.
4. We, therefore, direct the POTA Special Judge, Sabarmati, Ahmedabad or other courts where the cases of applicants are pending to send all those cases to the respective Sessions Judge within a period of one month of receipt of a copy of this order. This is subject to the order, if any, that may be passed by any competent court against the opinion of Central POTA Review Committee.
5. All these petitions/applications for bail/impleadment are permitted to be withdrawn with liberty to move for bail before the concerned Sessions Court after the records are received on transfer. In the event of filing such applications, the Sessions Judge shall consider the same on merits untrammelled by the observations, if any, made by the superior courts in any bail application filed by these respective petitioners.
6. POTA Case No.12 against Crime No.6 of 2003 in the Crime Branch, Ahmedabad city and POTA Case No.10 against Crime No.272/03 in Ellisbridge Police Station, C.B.I. Court, on transfer are to be tried by the Sessions Judge having jurisdiction.
7. Learned counsel for the petitioners submit that these petitioners are under-trial prisoners since April, 2003. The respective Sessions Judge will consider this fact and dispose of the matters as expeditiously as possible.
1. Crl. M.P. Nos. 4506/2007 Arising out of Crl. No. 1113/2005, Crl. M.P. Nos. 5639, 5640, 5641 and 5642 of 2007 Arising out of Crl. A. Nos. 1651-1652/2008, which are connected cases, are also taken on board, at the request of learned counsel.
2. These are bail applications/applications for impleadment by the accused petitioners filed in POTA/criminal cases pending on the files of Special POTA Judge, Sabarmati, Ahmedabad and other courts in regard to POTA cases registered with Godhra police station, , Crime Branch, Ahmedabad City and Ellisbridge Police Station, Ahmedabad. In some of these cases, bail applications were rejected by the Special Judge and in some cases the same were rejected by the High Court and in some other cases by this Court.
3. Subsequently the Prevention of Terrorism (Repeal) Act, 2004 (for short ‘the Repealing Act’) was enacted. Certain provisions of the said Act were challenged. This Court, by judgment dated 21.10.2008, upheld the validity of Section 2(3) and (5) of the Repealing Act and also passed the following directions :
1. ‘the judgments under challenge to the extent they declare Section 2(3) and (5) of the Repealing Act are not unconstitutional, are upheld;
2. the judgments under appeal are set aside to the extent they hold that in spite of deemed withdrawal of the cases, the procedure under Section 321 of the Code has to be followed for withdrawal;
3. the appeals filed by POTA accused are allowed in part accordingly. The appeals by the relatives of victims are disposed of reserving liberty to challenge the opinions of the Review Committee, wherever they are aggrieved;
4. We do not express any opinion on the merits of the cases of the POTA accused or in regard to the opinions expressed by the Review Committee.’
In the light of the said judgment, upholding the deemed withdrawal of cases under POTA, the bail applications filed by the accused have to be considered afresh. In all these cases wherever the Review Committee has recorded its opinion that there is no prima facie case for proceeding against the accused, the accused are not to be tried under the provisions of the POTA. However, these accused have also been charged in regard to several non-POTA offences and these offences will have to be tried by regular Sessions Judges (or CBI Court). By virtue of Section 33 of the POTA, the Sessions Judge has to proceed with these cases as if he had taken cognisance of these offences.
4. We, therefore, direct the POTA Special Judge, Sabarmati, Ahmedabad or other courts where the cases of applicants are pending to send all those cases to the respective Sessions Judge within a period of one month of receipt of a copy of this order. This is subject to the order, if any, that may be passed by any competent court against the opinion of Central POTA Review Committee.
5. All these petitions/applications for bail/impleadment are permitted to be withdrawn with liberty to move for bail before the concerned Sessions Court after the records are received on transfer. In the event of filing such applications, the Sessions Judge shall consider the same on merits untrammelled by the observations, if any, made by the superior courts in any bail application filed by these respective petitioners.
6. POTA Case No.12 against Crime No.6 of 2003 in the Crime Branch, Ahmedabad city and POTA Case No.10 against Crime No.272/03 in Ellisbridge Police Station, C.B.I. Court, on transfer are to be tried by the Sessions Judge having jurisdiction.
7. Learned counsel for the petitioners submit that these petitioners are under-trial prisoners since April, 2003. The respective Sessions Judge will consider this fact and dispose of the matters as expeditiously as possible.
