State [Through Deputy Secretary ... vs Irshad Ahmad Malik And Others
2009 Latest Caselaw 2275 Del

          THE HIGH COURT OF DELHI AT NEW DELHI

%                                Judgment delivered on: 27.05.2009
+      WP(CRL) 1712/2005

STATE [THROUGH DEPUTY SECRETARY (HOME)
GOVERNMENT OF NCT OF DELHI]       ... Petitioner

                                   - versus -


IBOTOMBI SAPAM AND OTHERS                                   ... Respondents

AND WP(CRL) 754/2006 STATE [THROUGH DEPUTY SECRETARY (HOME) GOVERNMENT OF NCT OF DELHI] ... Petitioner

- versus -

IRSHAD AHMAD MALIK AND OTHERS ... Respondents

Advocates who appeared in this case:

For the Petitioners        : Ms Mukta Gupta
For the Respondent No.1    : Mr N.D. Pancholi with Mr N. Mahendra Singh and
                             Mr Ch. Nripenchandra
For the Respondent No.2/UoI: Ms Gita Dhingra




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 Digest ? Yes

BADAR DURREZ AHMED, J

1. These petitions have been filed by the State (Government of NCT

of Delhi) seeking the issuance of writs of certiorari quashing the

opinions of the Review Committee to the effect that there is no prima

facie case for proceeding against the respondents under the Prevention

of Terrorism Act, 2002 (hereinafter referred to as „POTA‟). The two

cases are unconnected but have been heard together as common legal

issues arise for determination. In the case of Irshad Ahmad Malik, the

Review Committee‟s opinion is dated 16.08.2005, whereas in the case

of Ibotombi Sapam, the Review Committee gave its opinion on

11.05.2005.

2. Two questions arise for our consideration in these writ petitions:-

i) Whether the State Government can challenge the opinion of the Review Committee by way of a writ petition ?

ii) If yes, whether the opinion of the Review Committee in each of the two cases is liable to be set aside on the ground that the Review Committee in each case has travelled beyond the scope of its jurisdiction ?

Whether the State Government can challenge the opinion of the Review Committee by way of a writ petition ?

Ms Mukta Gupta, appearing for the State Government, contended that

the answer to this question has to be in the affirmative. She placed

reliance on the Supreme Court decision in the case of Mahmadhusen

AbdulRahim Kalota Shaikh v. Union of India & Others: 2008 (13)

Scale 398. She laid particular emphasis on paragraphs 31 and 32 of the

opinion of K.G. Balakrishnan, CJI, wherein it was observed as under:-

"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 can 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 one time measure with reference to a repealed statute. The availability of judicial review under Article 226 in the event of errors and abuses, is a sufficient safeguard and deterrent against any wrong doing by the Review Committee.

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

(underlining added)

3. Ms Mukta Gupta submitted that the above observations with

regard to judicial review of the opinion of the Review Committee were

made in the context of the apprehension that if the Review Committee

arrived at a wrong opinion, there would be no remedy. She submitted

that this is apparent from the following sentence in paragraph 30 of the

said decision:-

"30. An apprehension was expressed that if the Review Committee reaches a wrong opinion, there will be no remedy. ... "

4. Ms Mukta Gupta then referred to the decision of the Supreme

Court in the case of Jasbhai Motibhai Desai v. Roshan Kumar Haji

Bashir Ahmed: 1976 (1) SCC 671. In that decision, the Supreme

Court noted that, it had laid down in a number of decisions that in order

to have the locus standi to invoke the extraordinary jurisdiction under

Article 226, an applicant should ordinarily be one who has a personal

or individual right in the subject matter of the application, though in the

case of some of the writs like habeas corpus or quo warranto, this rule

is relaxed or modified. The court observed that as a general rule,

infringement of some legal right or prejudice to some legal interest in

hearing the petitioner is necessary to give him a locus standi in the

matter. The Supreme Court further observed that in the context of a

writ of certiorari, a petitioner may ordinarily fell in any of the following

three categories:-

      i)       Person aggrieved;

     ii)      Stranger;

     iii)     Busybody or meddlesome interloper.

5. The Supreme Court further noted that the persons in the last

category were easily distinguishable from those coming under the first

two categories inasmuch as, such persons, inter alia, indulge in the

pastime of meddling with the judicial process either by force of habit or

from improper motives and that the High Court would do well to reject

the applications of such busybodies at the threshold. The Supreme

Court, however, felt that the distinction between the first and the

second categories of applicants, though real, was not always well-

demarcated. It observed that the first category has, as it were, two

concrete zones; a solid central zone of certainty, and a grey outer circle

of lessening certainty in a „sliding centrifugal scale‟, with an outermost

nebulous fringe of uncertainty. Applicants falling within the central

zone are those whose legal rights have been infringed. Such applicants

undoubtedly stand in the category of "persons aggrieved". In the grey

outer circle, the bounds which separate the first category from the

second, intermix, interfuse and overlap increasingly in a „centrifugal‟

direction. The Supreme Court observed that all the persons in this

outer zone may not be "persons aggrieved". In this backdrop, the

Supreme Court observed as under:-

"39. To distinguish such applicants from 'strangers', among them, some broad tests may be deduced from the conspectus made above. These tests are not absolute and ultimate. Their efficacy varies according to the circumstances of the case, including the statutory context in which the matter falls to be considered. These are: Whether the applicant is a person whose legal right has been infringed? Has he suffered a legal wrong or injury, in the sense, that his interest, recognised by law, has been prejudicially and directly affected by the act or omission of the authority, complained of? Is he a person who has suffered a legal grievance, a person "against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something? Has he a special and substantial grievance of his own beyond some grievance or inconvenience suffered by him in common with the rest of the public? Was he entitled to object and be heard by the authority before it took the impugned action? If so, was he prejudicially affected in the exercise of that right by the act of usurpation of jurisdiction on the part of the authority? Is the statute, in the context of which the scope of the words "person aggrieved" is being considered, a social welfare measure designed to lay down ethical or professional standards of conduct for the community? Or is it a statute dealing with private rights of particular Individuals?"

It is, therefore, clear that ultimately the question of "person aggrieved"

has to be decided in the context of whether the person approaching the

High Court for a writ of certiorari under Article 226 of the Constitution

had a legal right under the statutory provisions or under the general law

which has been subjected to injury.

6. Ms Mukta Gupta also relied upon the decision of the Supreme

Court in the case of State of U.P. v. Ram Swarup and Another: AIR

1974 SC 1570, in particular, she laid emphasis on the observations

appearing in paragraph 37 thereof which reads as under:-

"37. The locus standi of State Governments to file appeals in this Court against judgments or orders rendered in criminal matters, particularly those commenced otherwise than on private complaints, has been recognised over the years and for a valid reason. All crimes raise problems of law and order and some raise issues of public disorder. The effect of crime on the ordered growth of society is deleterious and the State Governments are entrusted with the enforcement and execution of laws directed against prevention and punishment of crimes. They have, therefore, a vital stake in criminal matters which explains why all public prosecutions are initiated in the name of the Government. The objection of Mr. Garg that the State Government has no locus standi to file this appeal must accordingly be rejected."

7. We may say straightaway that this decision would be of no help

to Ms Mukta Gupta inasmuch as the Supreme Court was concerned

with the locus standi of the State Government in relation to its right to

file appeals and was not concerned with the locus standi in connection

with a writ petition. The right of appeal is a statutory right and if it is

available under the statute to the State Government, there can be no

dispute with regard to the State Government‟s locus standi in filing any

such appeal. The locus standi of the State Government in filing a writ

petition against an order of the Review Committee constituted under

the Prevention of Terrorism (Repeal) Act, 2004 stands on an entirely

different footing. Merely because the State Government has, "a vital

stake in criminal matters", does not enable the State Government to file

a writ petition challenging the opinion of the Review Committee under

the said Repealing Act of 2004.

8. The next decision cited by Ms Mukta Gupta is that of Maharaj

Singh v. State of Uttar Pradesh and Others: AIR 1976 SC 2602. The

said decision was rendered in the context of the U.P. Zamindari

Abolition and Land Reforms Act, 1951. One of the questions that was

considered was that of locus standi of the State to file an appeal against

the decision of a lower court in the absence of the Gaon Sabha. One of

the observations made in the context of the expression "person

aggrieved" in the said decision was that where a wrong against the

community interest is done, "no locus standi" will not always be a plea

to non-suit an interested public body chasing the wrong doer in court.

In that case, the Supreme Court felt that the Government fell within the

category of "person aggrieved" inasmuch as there is right of

resumption of an estate from the Gaon Sabha, meant to be exercised in

public interest, which would otherwise have been seriously jeopardized

if the estate was allowed to slip into the hands of a trespasser. The

Supreme Court further observed that the estate belonged to the State,

was vested in the Gaon Sabha for community benefit and was

controlled by the State through directions to the Land Management

Committee and was liable to be divested without ado any time. It was

in that context that the Supreme Court held that the State was entitled to

appeal under Section 96 of the Code of Civil Procedure. It is clear that

this decision would also be of no help to the petitioner. This is so

because in Maharaj Singh (supra), the estate clearly vested in the State

Government. The appeal filed by the State was, therefore, to protect its

vested interest and that of the community at large. In that context, the

State was considered to have locus standi being a "person aggrieved".

The State obviously had a legal right inasmuch as the estate vested in

the State. Therefore, to ensure that its legal right was not jeopardized,

the State was entitled to seek remedy for the infringement of such a

right. The position in the present case is entirely different. This shall

become clear from the discussion below.

9. Lastly, Ms Mukta Gupta referred to the decision of the Supreme

Court in the case of State of Orissa v. Union of India and Another:

1995 Supp.(2) SCC 154. She submitted that this was an instance

where the State Government filed a writ petition and the Supreme

Court held that it had locus standi to do so. She referred to paragraphs

11 and 12 of the said decision which read as under:-

"11. We have to consider whether the Orissa High Court was right in dismissing the writ petition filed by the State Government challenging the order of the Central Government dated 10.5.78 on the ground that the writ petition was not competent and maintainable.

12. In this connection, it is necessary to note that in the first place, the State Government is not merely an authority

subordinate to the Central Government which would, undoubtedly, be bound by the revisional orders of the superior authority. It is also the owner of the mines and minerals in question. If it is directed to issue a mining lease in favour of any party, it has locus stands to challenge that order under Article 226 of the Constitution of India."

10. From the above extract itself, it becomes immediately clear that

that decision stands on an entirely different footing from the present

case. The State Government was clearly the owner of the mines and

minerals in question and any direction given by the Central

Government with regard to the issuance of a mining lease in favour of

any party would undoubtedly affect the rights of the State Government

as owners of the mines and minerals. Consequently, its legal right

would be affected and, if such rights were adversely affected, it would

fall within the ambit of the expression "aggrieved person".

Consequently, the State Government, in such a situation, would clearly

have locus standi to challenge any such direction or order passed by the

Central Government under Article 226 of the Constitution of India.

However, the position in the present case is entirely different. It is not

clear as to what is the legal right that has been affected by the rendering

of the opinions by the Review Committee. We shall discuss this in

greater detail below.

11. Mr Pancholi, appearing on behalf of the respondents, submitted

that the question of the State Government‟s locus standi in challenging

the opinion of the Review Committee by way of the present writ

petition arises in the backdrop of the question of withdrawal from the

prosecution. According to him, in the matter of serious crimes, the

State is vitally interested in prosecuting the cases in relation thereto.

The State, however, also has the power to withdraw from the

prosecution. Under the normal law, it is the provisions of Section 321

of the Code of Criminal Procedure, 1973 which would apply. In that

instance, although the move for withdrawing from a case may be

initiated by the State Government, it is ultimately the public prosecutor,

who, after satisfying himself, that it is a case fit for withdrawal, has to

move an application before the court for withdrawing from the

prosecution. Thereafter, it is for the court in exercise of its supervisory

jurisdiction to consent to such withdrawal. He submitted that by virtue

of the Repealing Act of 2004, the discretion which vested with the State

and consequently with the public prosecutor with regard to withdrawal

from the prosecution has been taken away. The State as also the public

prosecutor has no say in the withdrawal from the prosecution. All the

cases registered under POTA automatically fell for review by virtue of

Section 2 (3) of the Repealing Act of 2004. The Review was to be

done by the Review Committee constituted under Section 60 of POTA.

The purpose of review was to consider as to whether there was a prima

facie case for proceeding against the accused under POTA. It is further

stipulated under Section 2(3) of the Repealing Act of 2004 that the

review is to be completed within one year from the commencement of

the Act, i.e., from 21.09.2004.

12. Mr Pancholi further submitted that even the supervisory

jurisdiction of the court under Section 321, CrPC has been taken away.

Consequently, by virtue of the Repealing Act of 2004, once the Review

Committee is of the opinion that there is no prima facie case for

proceeding against the accused under POTA, then, in cases in which

cognizance has been taken by the court, the cases are deemed to have

been withdrawn. Such withdrawal would, therefore, result in the

discharge of the accused if the withdrawal is at a stage before the

charge has been framed and, if it is at a stage after the charge has been

framed, the same shall result in an acquittal.

13. Mr Pancholi also submitted that the reference to an "aggrieved

party" in M.A.K. Shaikh (supra) is clearly to the relatives of the

victims or the accused themselves, but definitely not to the State

Government. He referred to paragraph 33 (iii) of the said decision

wherein, the Supreme Court directed as under:-

"(iii) The appeals filed by POTA accused are allowed in part accordingly. The appeals by the relatives of victims are disposed of reserving liberty to challenge the opinions of the Review Committee, wherever they are aggrieved."

14. According to Mr Pancholi, this direction in itself makes it clear

that when the Supreme Court used the expression "aggrieved party", it

nowhere contemplated the State Government to be the aggrieved party.

Consequently, Mr Pancholi submitted that the State Government is not

entitled to challenge the opinion of the Review Committee and,

therefore, the writ petitions ought to be dismissed.

15. We may note that this entire controversy with regard to locus

standi arises in the backdrop of the question of withdrawal from

prosecution. The Supreme Court in the case of State of Bihar v. Ram

Naresh Pandey and Another: AIR 1957 SC 389, with reference to

Section 494 of the Criminal Procedure Code, 1898, which is similar to

Section 321 of the Criminal Procedure Code, 1973, observed that in

understanding and applying the Section, two main features thereof have

to be kept in mind. The initiative is that of the public prosecutor and

what the court has to do is only to give its consent and not to determine

any matter judicially. According to the said decision, the judicial

function, implicit in the exercise of the judicial discretion for granting

the consent for withdrawal from a case, would normally mean that the

court has to satisfy itself that the executive function of the public

prosecutor had not been improperly exercised or that it was not an

attempt to interfere with the normal course of justice for illegitimate

reasons or purposes. The Supreme Court also observed that "it has also

to be appreciated that in this country, the scheme of administration of

criminal justice is that the primary responsibility of prosecuting serious

offences (which are classified as cognizable offences) is on the

executive authorities". In Rahul Agarwal v. Rakesh Jain and

Another: 2005 (2) SCC 377, the Supreme Court, after considering the

said decision in Ram Naresh Pandey (supra) which was rendered in

the context of Section 494 of the 1898 Code and the later decisions in

the cases of Sheonandan Paswan v. State of Bihar and Others: 1987

(1) SCC 288 and Abdul Karim and Others v. State of Karnataka and

Others: 2000 (8) SCC 710, which were in the context of Section 321 of

the present Code of Criminal Procedure, 1973, observed that:-

"10. From these decisions as well as other decisions on the same question, the law is very clear that the withdrawal of prosecution can be allowed only in the interest of justice. Even if the Government directs the Public Prosecutor to withdraw the prosecution and an application is filed to that effect, the court must consider all relevant circumstances and find out whether the withdrawal of prosecution would advance the cause of justice. If the case is likely to end in an acquittal and the continuance of the case is only causing severe harassment to the accused, the court may permit withdrawal of the prosecution. If the withdrawal of prosecution is likely to bury the dispute and bring about harmony between the parties and it would be in the best interest of justice, the court may allow the withdrawal of prosecution. The discretion under Section 321 Code of Criminal Procedure is to be carefully exercised by the Court having due regard to all the relevant facts and shall not be exercised to stifle the prosecution which is being done at the instance of the aggrieved parties or the State for redressing their grievance. Every crime is an offence against the society and if the accused committed an offence, society demands that he should be punished. Punishing the person who perpetrated the

crime is an essential requirement for the maintenance of law and order and peace in the society. Therefore, the withdrawal of the prosecution shall be permitted only when valid reasons are made out for the same."

16. We may also note the observations of the Supreme Court in the

case of Rajender Kumar Jain v. State through Special Police

Establishment and Others: 1980 (3) SCC 435, to the following effect:-

14. "Thus, from the precedents of this Court, we gather:

1. Under the scheme of the Code prosecution of an offender for a serious offence is primarily the responsibility of the Executive.

2. The withdrawal from the prosecution is an executive function of the Public Prosecutor.

3. The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to someone else.

4. The Government may suggest to the Public Prosecutor that he may withdraw from the prosecution but none can compel him to do so.

5. The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant grounds as well in order to further the broad ends of public justice, public order and peace. The broad ends of public justice will certainly include appropriate social, economic and, we add, political purposes Sans Tammany Hall enterprise.

6. The Public Prosecutor is an officer of the Court and responsible to the Court.

7. The Court performs a supervisory function in granting its consent to the withdrawal.

8. The Court's duty is not to reappreciate the grounds which led the Public Prosecutor to request withdrawal from the prosecution but to consider whether the Public Prosecutor applied his mind as a free agent, uninfluenced by irrelevant and extraneous considerations. The Court has a special duty in this regard as it is the ultimate repository of legislative confidence in granting or withholding its consent to withdrawal from the prosecution."

17. From the above decisions, it is clear that under Section 321,

CrPC, the public prosecutor performs an executive function when he

decides to withdraw from the prosecution. The court, before whom an

application for withdrawing from the prosecution is made by the public

prosecutor, performs a supervisory function in granting consent. It is

also clear that the Government may suggest to the public prosecutor

that he may withdraw from the prosecution, but cannot compel him to

do so.

18. Having set the backdrop for discussion of the scope of the

Repealing Act of 2004, we shall now examine the provisions thereof.

Section 2 of the said Act is material and is set out hereunder:-

"2. Repeal of Act 15 of 2002 and saving.--(1) The Prevention of Terrorism Act, 2002 (hereinafter referred to as the principal Act) is hereby repealed.

(2) The repeal of the principal Act shall not affect-

(a) the previous operation of, or anything duly done or suffered under the principal Act, or

(b) any right, privilege or obligation or liability acquired, accrued or incurred under the principal Act, or

(c) any penalty, forfeiture or punishment incurred in respect of any offence under the principal Act, or

(d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid,

and, any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the principal Act had not been repealed:

Provided that notwithstanding anything contained in this sub-section or in any other law for the time being in force, no court shall take cognizance of an offence under the principal Act after the expiry of the period of one year from the commencement of this Act.

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

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

(b) in cases in which investigations are pending, the investigations shall be closed forthwith,

with effect from the date of issuance of the direction by such Review Committee in this regard.

(4) The Review Committee constituted by the Central Government under sub- section (1) of section 60 of the principal Act shall, while reviewing cases, have powers of a civil court under the Code of Civil Procedure, 1908 (5 of 1908) in respect of the following matters, namely:-

(a) discovery and production of any document;

(b) requisitioning any public record or copy thereof from any court or office.

(5) The Central Government may constitute more Review Committees, as it may consider necessary, for completing the review within the period specified in sub- section (3)."

19. It is clear that Section 2 (3) of the Repealing Act stipulates that

whether or not an application under Section 60(4) of POTA had been

made for review of the case, all cases registered under POTA, would be

subjected to review by the Review Committee constituted under

Section 60 (1) of POTA and that such review shall be completed within

one year from the commencement of the Repealing Act of 2004, i.e.,

from 21.09.2004. Section 2(3) of the Repealing Act of 2004 also

makes it clear that where the Review Committee forms an opinion that

there is no prima facie case for proceeding against the accused under

POTA, then in cases in which cognizance has been taken by the court,

such cases shall be deemed to have been withdrawn and in cases in

which investigations are pending, the investigation shall be closed

forthwith with effect from the date of issuance of the direction by the

Review Committee in this regard.

20. Prior to the Repealing Act of 2004, the position of law with

regard to withdrawal from cases under POTA was settled by the

Supreme Court decision in the case of S.K. Shukla and Others v. State

of U.P. and Others: 2006 (1) SCC 314. The Supreme Court in S.K.

Shukla (supra) had come to the conclusion that the public prosecutor

could not act as a post box or act on the dictates of the State

Government. He had to act objectively inasmuch as he was also an

officer of the court. The Supreme Court also pointed out that the court

was not bound by the direction of the Review Committee and the courts

were also free to assess whether a prima facie case was made out or

not. Therefore, as the law stood after S.K. Shukla (supra), in a case

where the Review Committee constituted under Section 60 of POTA

came to the conclusion that prima facie no case was made out, it would

have still been incumbent upon the public prosecutor to apply his mind

and then move an application requesting the court to permit withdrawal

from the case. The court also had power to accept or reject such an

application of the public prosecutor for withdrawing from the case.

But, as pointed out in M.A.K. Shaikh (supra), the position in law, after

the Repealing Act of 2004, is entirely different. As already pointed out

above, in M.A.K. Shaikh (supra), the Supreme Court clearly held that

after the Repealing Act of 2004, the only role of the public sector, in

the case where the Review Committee is of the opinion that no prima

facie case for proceeding against the accused is made out is to bring to

the notice of the court, such direction of the Review Committee. The

role of the court is also limited to satisfying itself as to whether such an

opinion was rendered. If it is so satisfied, the court has no option but to

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

Repealing Act of 2004. The Supreme Court clearly indicated that the

court shall not examine the correctness or propriety of the opinion nor

exercise any supervisory jurisdiction in regard to such an opinion of the

Review Committee.

21. It is apparent that by virtue of the Repealing Act of 2004, the

executive function of deciding whether to withdraw from the

prosecution or not which vested in the public prosecutor under Section

321, CrPC, has been taken away. The public prosecutor is not left with

any such executive function. Even the supervisory function of the

court, which is available under the normal provisions of Section 321,

CrPC, has been expressly taken away by the Repealing Act of 2004.

22. Before we proceed any further, it would be instructive to notice

the statement of objects and reasons of the Repealing Act of 2004. The

same reads as under:-

"The Prevention of Terrorism Act, 2002 was enacted as a Special law to deal with terrorist acts.

2. There have been allegations of gross misuse of the provisions of the Act by some State Governments. Views have been expressed that provisions of the Act were misused in cases where they should not have been invoked. It has also been observed in various quarters that the Act has failed to serve its intended purpose and as a result, there have been persistent demands that this Act should be repealed.

3. The Government has concerned with the manner in which provisions of the Act were grossly misused in the past two years. It was, therefore, felt necessary to repeal the Act. As Parliament was not in session, the Prevention of Terrorism (Repeal) Ordinance, 2004 was promulgated on 21.9.2004. The Ordinance empowers the Central Review Committee to review all cases pending in the courts or at various stages of investigation and complete the review within the period of one year from the date of repeal of the Act and to give its directions. Whenever, in the opinion of the Central Review Committee no prima facie case is made out either in respect of cases pending in the courts, or under investigation, such cases shall be deemed to have been withdrawn and investigation closed, as the case may be.

4. The Prevention of Terrorism (Repeal) Bill, 2004 seeks to replace the Prevention of Terrorism (Repeal) Ordinance, 2004 and to achieve the above objects.

Sd/-

New Delhi Shivraj V. Patil rd The 23 November, 2004."

23. As pointed out in the opinion of Dalveer Bhandari, J, in M.A.K.

Shaikh (supra), the said statement of objects and reasons gives us

guidance in two areas. The first being that the allegations of misuse of

POTA were directed at some of the State Governments. It was

observed that this is relevant because it showed that Parliament wanted

a mechanism by which it could reverse the State Governments‟ alleged

misuse of POTA. Secondly, and, more importantly, it was observed

that "subjecting the Central Review Committee's decision to the will of

the State Government's public prosecutor, as is done when Section 321

of CrPC applies, clearly goes against the very objective of POTA

(Repeal) 2004". These observations contained in the said decision in

M.A.K. Shaikh (supra) clearly indicate that it was Parliament‟s

intention to, first of all, introduce a mechanism which could remedy /

reverse the State Governments‟ alleged misuse of the POTA

provisions. Secondly, it was also Parliament‟s intention to take away

the executive function from the public prosecutors, who would, in all

practicality, be subject to the will of the State Governments. This can

be explained further by considering a case where POTA was misused

against an accused. If the intention of the Parliament was to reverse

such misuse by a State Government, then it would have been counter-

productive to have left it to the discretion of the public prosecutor of

that very State to consider the question of withdrawal from prosecution.

Even if the Review Committee came to the opinion that no prima facie

case was made out against the said accused, such an opinion could

easily be blocked by the public prosecutor by not making an application

for withdrawal from the case. This is so because prior to the Repealing

Act of 2004, in view of the decision in S.K. Shukla (supra), the public

prosecutor was not to act as a mere post office but had the discretion to

make or not to make the application for withdrawing from the case

even where the Review Committee had come to the clear opinion that

no prima facie case was made out against the accused under POTA.

24. Similarly, the intention of the Parliament was also that the

supervisory function exercised by the court in granting consent under

the normal provisions of Section 321, CrPC should not come in the

way of withdrawing from cases by clearly making a provision for

deemed withdrawal by virtue of Section 2 (3) of the Repealing Act of

2004.

25. We now come to the question as to who could be an aggrieved

party when the Review Committee is of the opinion that there is no

prima facie case for proceeding against the accused. Neither the State

nor the public prosecutor can be regarded as an aggrieved party. This

is so because even under the provisions of Section 321, CrPC, although

the process of withdrawal may be initiated by the State Government, it

is the public prosecutor alone, who, on an application of mind and in

exercise of the executive functions vested in him, is to make the

application for withdrawing from the case. Even under Section 321,

CrPC, in case the public prosecutor, without any indication from the

State Government, moved an application for withdrawing from the case

and the court in exercise of its supervisory function granted its consent

to such withdrawal, the State Government could not be construed as an

aggrieved party. But, after the Repealing Act of 2004, whereby

Parliament expressly took away the executive function of withdrawing

from the case from the public prosecutor, in view of the backdrop of

gross misuse of the provisions of POTA by some State Governments,

the State Government can definitely not be regarded as an aggrieved

party when the Review Committee arrives at the opinion that there is

no prima facie case for proceeding against the accused.

26. However, where the Review Committee is of the opinion that

there is no prima facie case for proceeding against the accused, the

victims or the families of the victims or other affected citizens may be

aggrieved. In case where the Review Committee is of the opinion that

there is a prima facie case for proceeding against the accused, the

accused would also be an aggrieved person. When the Supreme Court

in M.A.K. Shaikh (supra) observed that any person aggrieved by the

opinion of the Review Committee could challenge it in a writ petition,

it, to our minds, did not contemplate the State Government as an

aggrieved party. This is also indicated by paragraph 33 (iii) of the

decision in M.A.K. Shaikh (supra) wherein the Supreme Court clearly

observed that the appeals by the relatives of the victims are disposed of

reserving liberty to challenge the opinions of the Review Committee,

wherever they are aggrieved.

27. Another aspect of the matter is that Section 60(5) of POTA, inter

alia, stipulated that any direction issued by the Review Committee

under sub-Section (4) would be binding on the State Government as

also the police officer investigating the offence. As observed by the

Supreme Court in M.A.K. Shaikh (supra) in paragraph 28 thereof, the

direction issued by the Review Committee under Section 60(4) of

POTA was binding on the concerned Government and investigating

officer "but not the public prosecutor or the court under Section 321 of

the Code". But by virtue of the Repealing Act of 2004, the provisions

of Section 2(3) thereof were not subject to Section 321, CrPC and

clearly excluded the provisions thereof. The wordings of the Repealing

Act were clear and unambiguous and did not contemplate or provide

for a further application of mind by the public prosecutor or grant of

consent by the court under Section 321, CrPC. It is, therefore, clear

that the decision of the Review Committee, after the Repealing Act of

2004, was not only binding on the concerned Government and the

investigating officer, but also on the public prosecutor and the court in

a case where cognizance had been taken by such court. Thus, the

binding nature of the Review Committee‟s opinion under Section 60(5)

of POTA was extended even further by the Repealing Act of 2004 so as

to also bind the public prosecutor and the concerned court. Once the

decision of the Review Committee is binding on the State Government,

it is difficult for us to understand as to how the State Government can

challenge the same by way of a writ petition under Article 226 of the

Constitution of India.

28. For all these reasons, the first question has to be answered in the

negative. Consequently, the second question set out at the beginning of

this judgment does not arise for our consideration and the writ petitions

are liable to be rejected straightaway.

The writ petitions are dismissed. There shall be no order as to

costs.

BADAR DURREZ AHMED, J

P.K. BHASIN, J MAY 27, 2009 dutt