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CASE NO.: Appeal (crl.)  943 of 2007

PETITIONER: Idrishan Yakubkhan Pathan

RESPONDENT: State of Gujarat thr. Public Prosecutor

DATE OF JUDGMENT: 27/07/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.   943           OF 2007                                            (Arising out of SLP (Crl.) No.1377 of 2007)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.   

2.      Challenge in this appeal is to the order passed by the  Division Bench of the Gujarat High Court dismissing the  appeal filed under Section 34(1) (4) of the Prevention of  Terrorism Act, 2000 (in short the ’POTA’).  There seems to be  some confusion about the factual position and therefore the  details are not necessary to be noted.

3.      Undisputedly, the challenge before the High Court was to  the order dated 7.7.2004 passed by the Designated Judge,  Special Court (POTA) Ahmedabad. There were two proceedings  initiated against the appellant.  The first was Pota Case No. 08  of 2003 arising out of complaints, namely, I.C.R. No. 184 of  2002 registered at Kagdapith Police Station, I.C.R. No. 116 of  2002 registered at Vejalpur Police Station and I.C.R. No. 244  of 2002 registered at Satellite Police Station for offences  punishable under Sections 120(B), 307, 337, 286 of the Indian  Penal Code, 1860 (in short the ’IPC’) read with Sections 3, 4 &  6 of Explosive Substances Act, 1908 (in short the ’Explosive  Act’) and under Sections 3(3), 4,20, 21(2)(b) and 22(3) of the  POTA.  It is to be noted that two appeals were filed by the  appellant i.e. Criminal Appeal Nos.1287 of 2004 and 1288 of  2004.  The appellant has been acquitted from the charges  leveled against him in POTA Case No.8 of 2003.  So far as the  prayer for bail in POTA Case No.12 of 2003 is concerned,  certain observations were made by the Court while dismissing  Criminal appeal No. 1287 of 2004 on 21.9.2004.  The High  Court noted that because of acquittal in POTA Case No.8 of  2003 wherein further revival in that case the appeal was  infructuous. Obviously, the same relates to Criminal Appeal  No. 1287 of 2004. So far as the Criminal appeal No.1288 of  2004 is concerned, the same relates to the POTA Case No.12  of 2003.  The High Court was therefore not justified in holding  that the matter was concluded for various reasons in view of  the observations made in the appeal relating to POTA Case  No.8 of 2003.  

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4.      A perusal of the documents on record shows that  Criminal Appeal No.1288 of 2004 related to POTA Case No.12  of 2003. Whether any relief can be granted by the concerned  Court in that POTA case was not considered. The confusion  arose before the High Court relating to the case numbers.   There is no dispute that Criminal Appeal No.1288 of 2004  before the High Court related to POTA Case No.12 of 2003. It  appears that the High Court permitted the appellant to take a  proper proceeding seeking his release on bail so far as POTA  Case No.12 of 2003 is concerned. The High Court apparently  failed to notice that Criminal Appeal No.1288 of 2004 related  to POTA Case No.12 of 2003. In the circumstances we set  aside the impugned order and remit the matter relating to  Criminal Appeal No.1288 of 2004 to the High Court to  consider the matter afresh in accordance with law.

5.      We make it clear that we have not expressed any opinion  on the merits of the case. The appeal is allowed to the  aforesaid extent.