Delhi High Court

State vs Ibotombi Sapam on 26 March, 2009

Author: Badar Durrez Ahmed

*      IN THE HIGH COURT OF DELHI AT NEW DELH I
%                            Judgment delivered on : 26.03.2009

+                       CRL. A. No. 245 of 2009


STATE                                           ..... Appellant

                                 - versus -

IBOTOMBI SAPAM                                 ..... Respondent

Advocates who appeared in this case:

For the Appellants        : Ms. Mukta Gupta, Standing Counsel
For the Respondents       : Mr. N.D. Pancholi

CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE P.K. BHASIN

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 the judgment should be reported in the digest?(Yes)

BADAR DURREZ AHMED, J (ORAL)

1. This appeal has been preferred by the State against the order dated

26.9.2005 passed by the learned Special Judge, POTA. The impugned order

reads as under:-

" Addl. PP for State Sh. Vishal Pancholi, Adv. for Accused Ibotombi Sapam.

An application by accused Ibotombi Sapam for discharge. The POTA Review Committee chaired by Hon‟ble Justice Usha Mehra observed vide order dated 11.5.2005 that there was no prima facie case against Ibotombi Sapam. In view of this finding of the Review Committee the prosecution against Ibotombi Sapam shall be deemed to have been withdrawn in terms of section 60(7) of

POTA. Accused Ibotombi Sapam is accordingly acquitted. Release order be sent to jail."

It is apparent from the above order that the charge under Prevention of

Terrorism Act, 2002 (hereinafter referred to as „POTA‟) has been deemed to

be withdrawn in view of the provisions of Section 60(7) of the said Act. The

State, at the time of filing of the appeal was of the view that such a

withdrawal should not be automatic and it was necessary for the public

prosecutor to apply his mind to the case and move an appropriate application

before the Court as was the position existing under the general provisions of

Section 321 of the Code of Criminal Procedure, 1973. The State, at that

point of time, was also supported in its view by a decision of the Gujarat

High Court in the case of Anusuyaben Sadashiv Jadav v. Union of India

and others and Gurumeet Singh Bagga vs. Union of India and others in

Special Civil Application No. 1103 of 2005 and Special Civil Application

No. 1105/2005 respectively. The said decision had been rendered by a

Division Bench of the Gujarat High Court on 13.4.2005. The learned counsel

for the appellant/State argued that the provisions of Section 321 Cr.P.C. had

not been over-ridden by the provisions of POTA as amended by Act 4 of

2004. She placed reliance on the decision of the Supreme Court in S.K.

Shukla and others v. State of UP and others: 2006 (1) SCC 314. In

particular, she placed reliance on para 32 thereof. In that decision, the

Supreme Court made a reference to other decisions, namely, Sheonandan

Paswan v. State of Bihar :(1983) 1 SCC 438; Rajender Kumar Jain v. State:

(1980) 3 SCC 435; R.M. Tewari v. State (NCT of Delhi): (1996) 2 SCC 610

and Ayyub v. State of U.P.: (2002) 3 SCC 510. Particular stress was laid on

the decision of the Supreme Court in the case of Sheonandan Paswan

(supra) which was a decision pertaining to the responsibility of a public

prosecutor in a situation where a withdrawal from the case was to be

considered in terms of Section 321 of the Code of Criminal Procedure 1973.

After referring to the said decision, the Supreme Court in S.K. Shukla

(supra) came to the conclusion that the Public Prosecutor cannot act like a

post box or act on the dictates of the State Government. He had to act

objectively as he was also an officer of the court. It was also pointed out that

the court was also not bound by that. The courts were also free to assess

whether a prima facie case was made out or not. The court, if satisfied, could

reject the prayer. The implication of the said decision was that even though

the Review Committee constituted under Section 60 of POTA had come to

the conclusion that prima facie no case is made out, it was still incumbent

upon the Public Prosecutor to apply his mind and then move an application,

requesting the court to permit withdrawal of the case. In view of the said

decision it also appeared that the court had power to accept or reject the

application of the Public Prosecution for withdrawing from the case in the

eventuality he did make such an application.

2. The same view is discernible from the decision of the Gujarat High

Court which had placed reliance on the decision of the Division Bench of the

Madras High Court in the case of Government of Tamil Nadu v. Union of

India and others being writ petition Nos. 1238 to 1240 of 2004 decided on

4.2.2004. The Madras High Court had observed that if the Review

Committee comes to the conclusion that the case is fit to be withdrawn from

prosecution under POTA, it can address the State Government which, in turn,

has to instruct the Public Prosecutor to invoke Section 321 of Code of

Criminal Procedure and that the role of the Review Committee is limited only

that far and no further. It was further observed that when the role of the

Review Committee ends, then it is for the Public Prosecutor to apply his

mind independently according to the well settled legal principles in respect of

Section 321 of Code of Criminal Procedure and ultimately it is for the

Special court trying the cases to decide whether the plea of the Public

Prosecutor to withdraw the prosecution, if made, is acceptable or not.

Apparently the State of Tamil Nadu challenged the said decision of the

Madras High Court by filing petitions of Special Leave to appeal before the

Supreme Court being Nos. 868-870 of 2004 titled as Government of Tamil

Nadu v. Union of India and others decided on 8.3.2004. While dismissing

the said special leave petitions, the Supreme Court, inter alia, took the view

that the High Court had correctly held that the challenge to the constitutional

validity of the provisions of Section 60(4) to 60(7) could not be sustained.

However the Supreme Court also held that the High Court had correctly held

that the directions given by the Review Committee could only be subject to

Section 321 of Criminal Procedure Code. Based on the observations of the

Division Bench of the Madras High Court as well as of the Supreme Court,

the Gujarat High Court in Anusuyaben Sadashiv Jadav (supra), inter alia,

took the following view:-

"These provisions were interpreted by Madras high Court in Government of Tamil Nadu Vs. Union of India (supra) and it was held that on receipt of the opinion of the Review Committee that no prima- facie case is made out against the accused under the 2002 Act, the State government was duty bound to instruct the Public Prosecutor to invoke Section 321 of the Code for withdrawing the prosecution. The Division Bench further held that the application filed by the Public Prosecutor is required to be decided by the Special Court by giving due consideration to the opinion of the Review Committee. This part of the judgment was expressly approved by the Supreme Court while dismissing the Special Leave Petition filed by the Government of Tamil Nadu. Though, the language of sub-section (3) of Section 2 of the Repeal Act is not identical to that of sub-section (4) read with sub-section (7) of the 2002 Act, it is substantially pari-materia to those provisions inasmuch as the opinion formed by the Review Committee on the prima-facie nature of the case for not proceeding against the accused under the 2002 Act has been given primacy and virtually made conclusive in the scheme of both the provisions. The only difference between the scheme of sub-sections (4) to (7) of Section 60 (as amended in the year 2003) and Section 2(3) of the Repeal Act is that while in the former case the Review Committee could initiate action on an application made by an aggrieved person and the direction given by it were treated binding on the Central Government etc. under sub-section (3) of Section 2 of the Repeal Act the Review Committee is required to examine all the pending cases registered under the 2002 Act for determining whether there is a prima-facie case for proceeding against the accused under the said Act. One starking similarity between the two sets of provisions is that once the Review Committee forms an opinion that there is no prima-facie case

for proceeding against the accused under the 2002 Act, the pending cases are treated as automatically withdrawn. Therefore, keeping in view the ratio of the judgment of Madras High Court which has been approved by the Supreme Court, we are inclined to agree with the learned Additional Solicitor general that the impugned provisions should be read in conjunction with Section 321 of the Code and the same do not, in any manner, encroach upon the judicial power of the State and that the opinion formed by the Review Committee on the prima-facie nature of the case under the 2002 Act has to be given due weightage by the Special Court and accepted unless there are exceptional reasons for not doing so."

3. On the basis of the aforesaid decision, the learned counsel for the

appellant/State contended that the learned Special Judge, POTA could not

have passed the impugned order without the Public Prosecutor having made

an application and without the Public Prosecutor having applied his mind to

the question of withdrawing the case under POTA.

4. The learned counsel appearing for the respondent, however contended

that the position is now somewhat different in view of the repeal of POTA as

well as in view of the recent decision of the Supreme Court in

Mohmadhusen Abdulrahim Kalota Shaikh v. Union of India and Ors.:

2008 (13) Scale 398.

5. We have examined the submissions made by the counsel for the parties

and we are inclined to agree with those made by the learned counsel for the

respondent. POTA had been repealed by the Prevention of Terrorism

(Repeal) Act, 2004 (Act 26 of 2004). Section 1(2) of the Repealing Act

makes it clear that the said repeal would come into force on 21.9.2004. In the

present case, the opinion of the Review Committee is dated 11.5.2005, that

is, after the repeal of POTA by the said repealing Act 26 of 2004. Section

2(3), to the extent relevant, of the repealing Act is set out herein below:-

" (3) Notwithstanding the repeal of Section 60 of the Principal Act, the Review Committee constituted by the Central Government under sub- section (1) of that section, whether or not an application under sub-section (4) of the Section has been made, shall review all cases registered under the principal Act as to whether there is a prima facie case for proceeding against the accused thereunder and such review shall be completed within a period of one year from the commencement of this Act and where the Review Commission is of the opinion that there is no prima facie case for proceeding against the accused, then-

(a) In cases in which cognizance has been taken by the Court, the cases shall be deemed to have been withdrawn and

(b) ..............."

A plain reading of the said provision clearly indicates that whether or not an

application is made under Section 60 of POTA for review by the Review

Committee, all cases had to be reviewed within a period of one year from the

commencement of the repealing act i.e., from 21.9.2004. The provision also

makes it clear that in case there is no prima facie case for proceeding against

the accused then, in cases in which cognizance has been taken by the Court,

the cases shall be deemed to have been withdrawn. The only question which

arises for consideration is whether, after the opinion of the Review

Committee dated 11.5.2005 that no prima facie case was made out for

proceeding against the accused, any formal application by the prosecutor was

required and whether the Court was required to go into the merits and

examine the opinion of the Review Committee before closing the case as

having been withdrawn. This has now been set to rest by the recent decision

of the Supreme Court in the case of Mohmadhusen Abdulrahim Kalota

Shaikh(supra). The Supreme Court as per the opinion of KG Balakrishnan,

CJI and R.V. Raveendran, J held as under:-

"32. We therefore hold that once the Review Committee on review under section 2(3) of the Repealing Act, expresses the opinion that there is no prima facie case for proceeding against the accused, in cases in which cognizance has been taken by the Court, such cases shall be deemed to have been withdrawn. The only role of the Public Prosecutor in the matter is to bring to the notice of the court, the direction of the Review Committee. The court on satisfying itself as to whether such an opinion was rendered, will have to record that the case stands withdrawn by virtue of section 2(3) of the Repealing Act. The court will not examine the correctness or propriety of the opinion nor exercise any supervisory jurisdiction in regard to such an opinion of the Review Committee. But we make it clear that if the opinion of the Review Committee is challenged by any aggrieved party in writ proceedings and is set aside, the Court where the proceedings were pending, will continue with the case as if there had been no such opinion."

Though Dalveer Bhandari, J, wrote a separate opinion, it was in concurrence

with the opinion of the aforesaid Hon‟ble Judges. He also observed as

under:-

"45. Under Section 3 of POTA (Repeal) 2004, where no prima facie case is made out, the case "shall" be deemed withdrawn. It is important to note that POTA (Repeal) 2004 does not expressly reject section 321 of Cr.P.C. Had the Parliament used a non-obstante clause to preclude the application of section 321 of Cr.P.C. to POTA (Repeal) 2004, POTA 2002 had done in a number of provisions our analysis would have been much simpler. That said, Section 56 of POTA 2002, whose operation is saved by section 2(2)(a) of POTA (Repeal) 2004, states that POTA 2002 is to override "anything inconsistent therewith". As noted, section 321 of Cr.P.C. is inconsistent with the POTAs, as it makes the Review Committee‟s decision to withdraw contingent upon the public prosecutor and the Court."

6. Consequently, it is clear that the only role of the Public Prosecutor,

once the Review Committee has opined that no prima facie case is made out

for proceeding against the accused, is to bring the same to the notice of the

Court. The court is also required to satisfy itself that the opinion has in fact

been rendered. The court having so satisfied itself, is required to record

that the case stands withdrawn by virtue of Section 2(3) of the Repealing

Act. In the present case, we find that though the order dated 26.9.2005

makes a reference to Section 60(7) of POTA, the opinion of the Review

Committee was rendered only pursuant to the Repealing Act 26 of 2004. So,

although only Section 60(7) is referred to in the impugned order, the review

was actually under Section 2(3) of the Repealing Act. In these

circumstances, as pointed out by the Supreme Court in the aforesaid