REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  1113 OF 2005

MAHMADHUSEN ABDULRAHIM KALOTA SHAIKH …APPELLANT

VERSUS

UNION OF INDIA & ORS.               …RESPONDENTS

WITH

CRIMINAL APPEAL NOS. 1498-1500 OF 2005

CRIMINAL APPEAL NO. 359 OF 2006  

CRIMINAL APPEAL NO.  734 OF 2007    

CRIMINAL APPEAL NOS.  735 OF 2007

CRIMINAL APPEAL NOS.  736 OF 2007

CRIMINAL APPEAL NO. 1651-1652 OF 2008 (ARISING OUT OF S.L.P. (CRL) NOS. 3015-3016 OF 2005)

J  U  D  G  M  E  N  T

K.G. BALAKRISHNAN,  CJI.   :

Leave  granted  in  SLP  (Crl.)  No.3015-3016/2005.  The

appellants  in these  two appeals  are  the kith and kin of  some

persons killed in the Godhra Train Burning incident and in the

Akshardham  Temple  attack.  They2  have  challenged  the

judgment  dated  13.4.2005  of  the  Gujarat  High  Court  in  SCA

Nos.1103  &  1105/2005  filed  by  them.  For  convenience,  the

appellants  in  these  two  appeals  will  be  referred  to  as  the

‘relatives of victims’.  

2. The appellants in Criminal Appeal  Nos.1113/2005, 1498-

1500/2005, 359/2006, 734/2007, 735/2007 and 736/2007 are

persons who have been charged in respect of offences under the

provisions of the Prevention of Terrorism Act, 2002, in terrorism

related cases.  In  these appeals,  they have also challenged the

said judgment dated 13.4.2005 of the Gujarat High Court in SCA

Nos.1103 & 1105  of 2005, and other judgments of the said High

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Court and the judgment of the Bombay High Court which follow

the said decision. The appellants in these appeals will be referred

to as ‘POTA accused’.

3. These  appeals  involve  questions  relating  to  the

constitutional validity as also the interpretation of section 2(3)

and (5) of Prevention of Terrorism (Repeal) Act 2004. While the

relatives  of  victims  are  aggrieved  by  the  rejection  of  their

challenge  to  section  2(3)  and  (5)  of  the  said  Act,  the  POTA

accused  are  aggrieved  by  the  direction  to  read  section  2(3)

subject to section 321 of Code of Criminal Procedure, 1973. To

appreciate  the  rival  contentions,  the  reasons  that  led  to

enactment  of  the  Prevention  of  Terrorism  Act,  2002  and  its

repeal, require to be noted.  

4. To  meet  the  challenge  of  terrorists  indulging  in  wanton

killings,  arson,   looting,  and  other  heinous  crimes  in  various

parts of India, the Terrorist and Disruptive Activities (Prevention)

Act  (hereinafter  referred  to  as  ‘TADA’)  was  enacted  by  the

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Parliament  in the year 1985.   There  was widespread criticism

that TADA contained some draconian provisions.   

5. The constitutional validity of TADA was challenged before

this Court in KARTAR SINGH    Vs. STATE OF PUNJAB -  (1994)

3 SCC 569.  It was contended before this Court that many of the

stringent  provisions  of  TADA were  likely  to  be  abused  by  the

police. In particular, it was submitted that the provisions relating

to confession made to the police may lead to illegal extraction of

confessions by the police; and that the provision relating to grant

of bail were violative of human rights and the fundamental rights

guaranteed by the Constitution of India.   While upholding the

constitutional validity of TADA, this Court observed that it was

necessary  to  ensure  that  the  provisions  of  the  Act  were  not

misused by the security agencies/Police. Certain guidelines were

set  out  to  ensure  that  confessions  obtained  in  pre-indictment

interrogation by the police will be in conformity with principles of

fundamental fairness. This Court also indicated that the Central

Government  should  take  note  of  those  guidelines  by

incorporating them in TADA and the rules framed thereunder by

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appropriate amendments.  This Court also held that in order to

prevent  the  misuse  of  the  provisions  of  TADA,  there  must  be

some Screening or Review Committees.   In the lead judgment,

Pandian, J. held (para 265) :

“In order to ensure higher level of scrutiny and applicability of  TADA Act,  there  must  be  a  screening  Committee  or  a Review Committee  constituted  by the  Central  Government consisting of the Home Secretary, Law Secretary and other secretaries concerned of the various Departments to review all the TADA cases instituted by the Central Government as well as to have  a quarterly administrative review, reviewing the States’ action in the application of the TADA provisions in the respective States, and the incidental questions arising in relation thereto.  Similarly, there must be a Screening or Review  Committee  at  the  State  level  constituted  by  the respective  States  consisting  of  the  Chief  Secretary,  Home Secretary, Law Secretary, Director General of Police (Law and Order) and other officials as the respective Government may think it fit, to review the action of the enforcing authorities under  the  Act  and  screen  the  cases  registered  under  the provisions of the Act and decide the further course of action in every matter and so on.”  

6. In 1995, TADA was allowed to lapse. A few years later, the

Prevention of Terrorism  Ordinance, 2001, was promulgated on

24.10.2001,  followed  by  Prevention  of  Terrorism  (Second)

Ordinance promulgated  on 30-12-2001. In 2002, the Prevention

of Terrorism  Act, 2002, (‘POTA’ for short) was enacted replacing

the Prevention of Terrorism (Second) Ordinance,  2001. Section

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60 of POTA provided for constitution of Review Committees  to

discharge the functions specified in sections 19(4), 40 and 46 of

POTA. The said section is extracted below :  

“60.  Review Committee :  (1) The Central Government and each  State  Government  shall,  whenever  necessary, constitute one or more Review Committee for the purposes of this Act.  

(2) Every such Committee shall consist of a Chairperson and such other members not exceeding three and possessing such qualifications as may be prescribed.  

(3) A Chairperson of the Committee shall be a person who is,  or  has  been,  a  Judge  of  a  High  Court,  who  shall  be appointed by the Central Government, or as the case may be, the State Government, so however, that the concurrence of the Chief Justice of the High Court shall be obtained in the case of a sitting Judge:

Provided  that  in  the  case  of  a  Union  Territory,  the appointment of a person who is a Judge of the High Court of a State shall be made as a Chairperson with the concurrence of the Chief Justice of the concerned High Court.  

7. POTA  was  amended  by  the  Prevention  of  Terrorism

(Amendment) Ordinance, 2003, promulgated on 27.10.2003. By

the said ordinance sub-sections (4) to (6) were added in section

60  of  POTA  entrusting  an  additional  function  to  the  Review

Committees. The said Ordinance was replaced by the Prevention

of  Terrorism  (Amendment)  Act  2003  (Act  4  of  2004)  which

inserted sub-sections (4) to (6) as also further sub-section (7) in

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Section 60 with retrospective effect from 27-10-2003.  The sub-

sections (4) to (7) of section 60 read as under :  

“(4) Without prejudice to the other provisions of this Act, any Review Committee constituted under sub-Section (1) shall, on an application by any aggrieved person, review whether there  is  a  prima  facie case  for   proceeding  against  the accused under this Act and issue directions accordingly.

(5) Any direction issued under sub-section (4) :-

(i) by the Review Committee constituted  by the Central Government,  shall  be  binding  on  the  Central Government,  the  State  Government  and the  police officer investigating the offence; and

(ii) by the Review Committee constituted  by the State Government,  shall  be  binding   on  the  State Government and the police  officer  investigating the offence.

(6) Where the reviews under sub-section (4) relating to the same offence under this Act, have been made by a  Review  Committee  constituted  by  the  Central Government  and a Review Committee constituted by the  State  Government,  under  sub-section  (1),  any direction  issued  by  the  Review  Committee constituted by the Central government shall prevail.

(7) Where any Review Committee constituted under sub- section (1) is of opinion that there is no prima facie case for proceeding against the accused and issues directions  under  sub-section  (4),  then,  the proceedings  pending  against  the  accused  shall  be deemed  to  have  been  withdrawn  from the  date  of such direction. ”

The effect of the amendment was to make any direction issued

by the Review Committee on review, about the existence of prima

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facie  case  for  proceeding  against  the  accused  under  POTA,

binding on the Central Government as well as State Government

and the police officer investigating the offence.   

8. The  constitutional  validity  of  sub-sections  (4)  to  (7)  of

Section 60 inserted by the Prevention of Terrorism (Amendment)

Act,  2003 was challenged by the Government of Tamil Nadu   in

the  Madras  High  Court.  It  was  contended,  inter  alia,  that

enacting  a  provision  that  made  the  decisions  of  the  Review

Committee  binding  on  the  State  Government  was  an

encroachment  upon  the  power  and  authority  of  the  State  to

prosecute an offender.  It  was also contended that a provision

that a proceeding pending in a court shall  be deemed to have

been withdrawn when the Review Committee opined that there is

no prima facie case for proceeding against the accused, would

amount to interference with judicial functions and encroachment

of  ‘judicial  power’  by  the  executive,  in  violation  of  the

constitutional scheme.  

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9. The  High  Court  of  Madras  upheld  the  validity  of  sub-

sections (4) to (7) of Section 60 of POTA. But it further held that

the opinion rendered by the Review Committee would not result

in automatic withdrawal of cases pending in court; that as the

opinion  was  binding  on  the  State  government,  the  State

government  was  bound  to  instruct  the  Public  Prosecutor  to

withdraw the prosecution under Section 321 of the Code; that

the public  prosecutor  should apply his mind and then file  an

application seeking the consent of the court; and that only on

such  consent  being  given,  the  proceedings  shall  stand

withdrawn. The High Court held:

“The exercise of power by the Review committee cannot be termed as scuttling the judicial process… Criminal cases are deemed to be pending and can be concluded only  on the delivery of judgment. Upto that stage, the prosecution can always  be  withdrawn  subject  to  such  limitations  as  are prescribed  in  section  321  Cr.PC.  …  A  plea  made  to  the Public  Prosecutor  to  withdraw the  proceedings  cannot  be construed as an encroachment on the judicial power. At any stage  before  the  pronouncement  of  the  judgment  in  a criminal case, the State Government can instruct the Public Prosecutor to withdraw the prosecution. In POTA also, the State Government can exercise such power. But if it is not willing  to  do  so,  it  does  not  bar  the  Review  Committee exercising  the  powers  under  Section  60  thereof  and  the Review Committee can always decide as to whether, in its opinion, the case is a fit one to proceed further even if it is in part-heard  stage.  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

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Prosecutor  to  invoke  section  321  of  Code  of  Criminal Procedure. The role of Review Committee is limited only that far and no further. 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 interpreting 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….. It is only section 321 of  Cr.PC,  which is  applicable  for  withdrawing prosecution under POTA. Hence, we hold that upto the stage of formulating an opinion regarding prima facie case under POTA,  the  Review  Committee’s  decision,  one  way  or  the other, cannot amount to interference in the judicial process.”

10. The  State  of  Tamil  Nadu challenged  the  judgment  of  the

Division  Bench  of  Madras  High  Court  by  filing  Special  Leave

Petition before  this  Court.  While  dismissing  the  Special  Leave

Petition on 8-3-2004 this Court observed as follows :-

“By the amendment, the decision of the Review Committee is made  binding  on  the  Central  Government,  State Governments  and  the  Police  Officers  investigating  the offence.  The High Court has held, in our-view correctly, that these amendments are based on the recommendations made by the Constitution Bench of the Court in Kartar Singh Vs. State  of  Punjab  reported  in  (1994)  3  SCC  569  and  the judgment of this Court in R.M. Tiwari Vs. State (1996) 2 SCC 610.   These  are  the  provisions  which  provide  safeguards against misuse of’ the stringent provisions of such an Act. In  our  view,  the  High  Court  has  correctly  held  that  the challenge  cannot  be  sustained.   The High Court  has  also correctly  held  that  the  directions  given  by  the  Review Committee  could  only  be  subject  to  Section  321  of  the Criminal Procedure Code”.

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11. In  view  of  adverse  reports  about  the  misuse  of  the

provisions  of  POTA  in  some  States,  the  Parliament  repealed

POTA, by the Prevention of Terrorism (Repeal) Ordinance, 2004

promulgated  on  21.9.2004,  later  replaced  by  Prevention  of

Terrorism (Repeal) Act, 2004 (‘Repealing Act’ for short). Section

2 of the Repealing Act reads as follows :-

“2. Repeal  of  Act  15  of  2002  and  Saving :  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

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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  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).”

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12. The provisions of sub-sections (3) and (5) of section 2 of

the  Repealing  Act  were  challenged  before  the  High  Court  of

Gujarat,  by  the  relatives  of  victims.  By  judgment  dated

13.4.2005, the High Court upheld the constitutional validity of

the said provisions of the Repealing Act.  The High Court was of

the view that the provisions of section 2(3) of the Repealing Act

were similar to the provisions of section 60(4) to (7) of POTA.

Therefore following the decision of Madras High Court relating

to the validity of section 60(4) to (7) of POTA, it held that section

2(3)  of  the  Repealing  Act  did  not  dispense  with  the

requirements  of  Section   321  of  the  Code;  and  where   the

Review Committee, in regard to any case where cognizance had

been taken by the court, held that there was no prima facie case

for  proceeding  against  the  accused  under  the  provisions  of

POTA, such opinion of the Review Committee will not have the

effect of deemed withdrawal of the case from the court, until the

procedure prescribed in section 321 of the Code was complied

with.  The  said  conclusion  was  based  on  the  following

reasoning :

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“When the Parliament enacted the Repeal Act, it was aware of the fact that the Division Bench of the Madras High Court had  made  sub-section  (7)  of  section  60  of  the  2002  Act subject  to  section  321  of  the  Code  and  the  view  of  the Madras  High  Court  had  been  expressly  approved  by  the Supreme  Court  and  yet  it  did  not  choose  to  exclude  the applicability of section 321 of the Code from the scheme of section 2(3) of the Repeal Act. Rather, the language of sub- section  (7)  read  with  section  4  of  the  2002  Act  was substantially  retained  in  the  Repeal  Act.  Thus,  the Parliament  will  be  deemed  to  have  accepted  the interpretation  placed  by  the  Madras  High  Court  on  the provisions of sub-sections (4) to (7) of section 60 from the scheme of  section  2  of  the  Repeal  Act  is  in  our  opinion, inconsequential because the language of sub-section (3) of section 2 thereof is substantially similar to sub-section (7) of section 60  of  the  2002 Act,  in  so  far  as  they provide  for deemed withdrawal of the pending cases under the 2002 Act.

13. Consequently,  the  High  Court  prescribed  the  following

procedure : that the Review Committee shall forward its opinion

to the Public Prosecutor appointed under Section 28 of POTA

for  being  placed  before  the  Special  Court;  that  the  Public

Prosecutor shall then file appropriate application under Section

321 of the Code alongwith the opinion of the Review Committee

and  other  relevant  records  without  any  delay;  and  that  the

Special Court will then pass appropriate orders by giving due

weightage to the opinion of the Review Committee, keeping in

view the observations of this Court in R.M. TIWARI ADVOCATE

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Vs. State (NCT) OF DELHI - (1996) 2 SCC 610 and SHAHEEN

WELFARE ASSOCIATION  Vs.  UNION OF INDIA AND ORS. -

(1996) 2 SCC 616.   

14. We  may  refer  to  section  321  of  the  Code  and  the

observations of this Court in  R.M.Tiwari and Shaheen Welfare

Association referred to by the High Court at this stage. Section

321 of the Code relates to withdrawal from prosecutioin. The

relevant portion thereof reads thus :

“The  public  prosecutor  or  Assistant  Public  Prosecutor  in charge of a case may, with the consent of the court at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; …”

In R.M.Tiwari (supra), a case under TADA, this court observed :

“7. It is, therefore, clear that the Designated Court was right in taking the view that withdrawal from prosecution is not to be permitted mechanically by the court on an application for that  purpose made by the public  prosecutor.  It  is  equally clear  that  the  public  prosecutor  also  has  not  to  act mechanically  in  the  discharge  of  his  statutory  function under Section 321 CrPC on such a recommendation being made by the Review Committee; and that it is the duty of the public prosecutor to satisfy himself that it is a fit case for withdrawal from prosecution before he seeks the consent of the court for that purpose.

8. It appears that in these matters, the public prosecutor did not fully appreciate the requirements of Section 321 CrPC and made the applications for withdrawal from prosecution

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only  on  the  basis  of  the  recommendations  of  the  Review Committee.  It  was  necessary  for  the  public  prosecutor  to satisfy himself in each case that the case is fit for withdrawal from prosecution in accordance with the settled principles indicated in the decisions of this Court and then to satisfy the Designated  Court  of  the  existence  of  a  ground which permits  withdrawal  from  prosecution  under  Section  321 CrPC.  

11. It has also to be borne in mind that the initial invocation of the stringent provisions of the TADA Act is itself subject to sanction  of  the  Government  and,  therefore,  the  revised opinion  of  the  Government  formed  on  the  basis  of  the recommendation of the High Power Committee after scrutiny of each case should not be lightly disregarded by the court except for weighty reasons such as mala fides or manifest arbitrariness.  The  worth  of  the  material  to  support  the charge under the TADA Act and the evidence which can be produced, is likely to be known to the prosecuting agency and,  therefore,  mere  existence  of  prima  facie  material  to support  the framing of  the charge should not by itself  be treated  as  sufficient  to  refuse  the  consent  for  withdrawal from prosecution. It is in this manner an application made to withdraw  the  charges  of  offences  under  the  TADA  Act pursuant to review of a case by the Review Committee has to be considered and decided by the Designated Courts.”   

Shaheen  Welfare  Association (supra)  also  related  to  a  case

under TADA where this court observed :

“The purpose of constituting such committees was to ensure a higher level  of  scrutiny regarding applicability  of the provisions of TADA to the case in point.  The need for such committees is amply borne out by the results which have been annexed in the affidavits  filed on behalf  of  the Union of India before us relating to the number of cases so reviewed by the Review Committees where it has been found that the provisions of TADA ought not to have been applied.”

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15. The  said  decision  of  the  Division  Bench  of  the  Gujarat

High Court and the decisions following the said judgment are

challenged  in  these  appeals.  When  these  matters  came  up

before B.P. Singh and H.S. Bedi JJ, on 22.2.2007, being of the

view that the provisions of section 60 of POTA were different

from the provisions of section 2 of Repealing Act, they directed

that  the  matter  should  be  heard  by  a  larger  bench.   The

reference  order  (after  correcting  certain  typographical  errors)

reads thus :

“It appears that similar provisions, though not exactly in the same  terms,  under  the  earlier  Ordinance   and  the Amendment Act came up for consideration  before the High Courts  in  India  and  one  of  the  judgments  was  appealed against  and was disposed  of by this Court by its order of 8th March, 2004.   This Court noticed that by the  amendment of  2002  the  decision  of  the  Review  Committee  is  made binding on the Central Government, the State Governments and the Police Officers  investigating the  offence. This Court went on to observe that the High Court had correctly held that  the challenge cannot be sustained.  The High Court had correctly  held  that  the  direction  given by  the  Review Committee could only be subject to Section 321 of the Code of Criminal Procedure.

We notice that by reason of the amendment of the Prevention of   Terrorism Act,  the provisions  introduced namely,  sub- sections (4) to (7) in Section 60 did provide that if the Review Committee was of the opinion that there was no prima facie case  for  proceeding  against  the  accused  and  issued directions  under  sub-Section  (4),  then  the  proceeding pending against the accused shall be deemed to have been withdrawn from the date of such direction.  Whereas sub- section (7) of section 60 inserted by the Amendment Act used

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the  words  “the  proceedings  pending  against  the  accused shall be deemed to have been withdrawn”, sub-Section (3)  of Section  2  (of  the  Repealing  Act)  refers  to  two  types   of proceedings pending against the accused namely, cases in which cognizance has been taken by the court and the case which  are  at  the  stage  of  investigation.   It  is  therefore, submitted  before  us  that  whatever  may  have  been  the ambiguity in sub section (7) of Section 60 of the Prevention of  Terrorism  Act,   that  ambiguity   has  been  removed  by explicitly providing that even in cases where cognizance has been taken by the Court they shall be deemed to have been withdrawn.

To accept the submission urged on behalf of the appellants, we must hold that the provisions of the Repealing Act relied upon by the appellants overrides the provisions of Section 321 of the Code of  Criminal Procedure which provides for withdrawal  of  prosecutions  at  the  instance  of  the  Public Prosecutor in-charge of the case and with the consent of the Judge trying the accused.    

 However,  we  feel  that  in  view  of  the  reasons  and  the observations  contained  in  the  earlier  order  of  this  Court disposing  of the Special Leave Petitions from the judgment and order of the High Court of Gujarat, and later from the High Court of Madras, it would be appropriate if the matters be placed before a larger bench for consideration.”

It  is in this background these matters are placed before  this

three  Judge  Bench.  We  have  heard  the  submissions  of  the

learned counsel.

16. According to the POTA accused, the provisions of section 2

(3)  of  the  Repealing  Act  are  materially  different  from  the

wording of section 60(4) to (7) of POTA. Under section 2(3) of the

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Repealing Act, the opinion of the Review Committee is final and

conclusive and if  the opinion is to the effect that there is no

prima  facie case  for  proceeding  against  the  accused  under

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

court, shall be deemed to have been withdrawn, and in cases

where  investigations  are  pending,  the  investigations  shall  be

closed forthwith.  They contend that the clear legislative intent

is that after the repeal of POTA, continuance of any proceedings

initiated under POTA in which cognizance has been taken by

the  court,  shall  be  subject  to  the  opinion  of  the  Review

Committee under section 2(3) of the Repealing Act and once the

Review Committee holds that there was no prima facie case to

continue the proceedings against the accused, the case shall be

deemed to have been withdrawn with effect  from the date  of

issuance   of  the  direction  by  such  Review  Committee.  It  is

submitted that in such cases, Section 321 of the Code would

have no application and there is neither any need for the Public

Prosecutor  to  file  any  application  for  withdrawal  from

prosecution, nor any need or occasion for the court to consider

whether  consent  should  be  given  for  such  withdrawal  from

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prosecution,  as  the  proceedings  are  deemed  to  have  been

withdrawn  with  effect  from  the  date  of  the  issuance  of  the

direction by the Review Committee.  

17. The counsel for the State of Gujarat, on the other hand,

contended that the High Court had rightly held that sub-section

(3) of section 2 of the Repealing Act does not dispense with the

requirements of Section 321 of  the Code for withdrawal and

that after the Review Committee formed an opinion,  the same

will have to be placed before the court by the Public Prosecutor,

with an application and the Court will  have to independently

consider such application  and come to a conclusion whether it

should consent to the prosecution being withdrawn or not.  

18. The relatives of victims contend that section 2(3) & (5) of

Repealing Act ought to be declared as unconstitutional on the

ground  that  they  amount  to  encroachment  on  the  judicial

power of the State. Alternatively they supported the decision of

the High Court and contended that once the Special Judge took

cognizance of the offence,  the proceedings could be withdrawn

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only under Section 321 of the Code.  It was contended that the

Review Committee being purely a committee appointed by the

executive, has no right to determine the innocence or otherwise

of  an  accused.   It  was  submitted  that  merely  because  the

Chairman  of  the  Review  Committee  is  a  retired  Judge,  the

Committee does not become a judicial authority. It was further

submitted that the Committee could only  be characterized as

an external body and such a Committee cannot be a clothed

with a judicial power to withdraw the pending cases from the

Court.   Reference to various decisions of this Court was made

wherein this Court delineated the scope and ambit of Section

321 of  the  Code.   Our attention  was drawn to the  following

observations of Justice V.R. Krishna Iyer in BALWANT SINGH

AND ORS. Vs.  STATE OF BIHAR  - (1977) 4 SCC 448 :-  

“The  Court  has  to  be  vigilant  when  the  case  has  been pending before it and not succumb to executive  suggestion made in the form of application for withdrawal  with a bunch of papers tacked on.  Moreover, the State should not stultify the Court by first stating that  there is a true case to be tried and then make a volte face to the effect that on a second investigation the case has been discovered to be false.”

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Reliance  was  also  placed  to  the  following  observations  of

Justice V.R. Krishna Iyer in SUBHASH CHANDER Vs.  STATE

(CHANDIGARH ADMINISTRATION) & ORS - (1980) 2 SCC 155:

“When a case is pending in a criminal court, its procedure and progress are governed by the Criminal Procedure Code or other relevant statute.  To intercept and recall an enquiry or trial in a court, save in the manner  and to the extent provided  for  in  the  law,  is  itself  a  violation  of  the  law. Whatever needs to be done must be done in accordance with the law.  The function of  administering justice, under our constitutional order, belongs to those entrusted with judicial power.  One of the few exceptions to the uninterrupted flow of the court’s  process is Section 321 Cr.P.C.,  1973.  But even here it is the Public Prosecutor,  and not any executive authority, who is entrusted by the Code with the power to withdraw from a prosecution, and that also with the consent of the court.  We repeat for emphasis.  To interdict, intercept or jettison an enquiry or trial in a court, save in the manner and  to  the  extent  provided   for  in  the  Code  itself,  is lawlessness.  The even course of criminal justice cannot be thwarted  by  the  executive,  however,  high  the  accused, however  sure  government  feels  a  case  is  false,  however unpalatable  the  continuance  of  the  prosecution  to  the powers-that-be who wish to scuttle court justice because of hubris,  affection  or  other  noble  or  ignoble  consideration. Justicing,  under  our  constitutional  order,  belongs  to  the judges. Among the very few exceptions to this uninterrupted flow of the court process is Section 494, Cr.P.C. 1898.  Even here, the Public Prosecutor –not any executive authority- is entrusted by the Code with a limited power to withdraw from a prosecution, with the Court’s consent whereupon the case comes to a close.  What the law has ignited, the law alone shall extinguish

Reference  was  next  made  to  SHEONANDAN  PASWAN  Vs.

STATE OF BIHAR AND ORS. - (1987) 1 SCC 288 and other

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decisions of this Court taking a similar view, to contend that

proceedings pending in a court, where cognizance has already

been taken against the accused, could be withdrawn only in the

manner contemplated in section 321 of the Code and therefore,

there can be no automatic withdrawal from prosecution on the

basis of sub-section (3) of Section 2 of the Repealing Act. It was

submitted that the appointment of the Review Committee and

the opinion expressed by such Committee  would only enable

the  Public  Prosecutor  to  take  steps  for  withdrawal  from

prosecution;  and  that  once  the  Court  takes  cognizance,  the

proceedings  against  the  accused  shall  have  to  be  continued

until the Court give consent to a withdrawal under section 321

of the Code, on being satisfied that there are valid grounds for

withdrawal from prosecution.

19. In so far as Union of India is concerned, we find that there

is a slight shift from the stand taken before the High Court. In

the High Court, Union of India contended that the power of the

Review Committee under section 2(3) of the Repealing Act was

subject to section 321 of the Code. In fact, Union’s stand  was

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accepted and upheld by the High Court, as is evident from the

following observations of the High 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.”  

But before us the Union has taken a stand, which in principle

supports  the  contention  of  the  POTA  accused,  though  the

Union has not challenged the decision of the High Court. The

stand of the Union, as set out in its counter is extracted below :

“However,  in  view  of  the  difference  in  language  between Section  60(5),  60(6)  and  60(7)  as  added  by  POTA (Amendment)  2003  and  Sec.  2(3)  of  the  Repeal  Act,  the issues raised by the petitioners necessitate examination. It is respectfully submitted that the language used in sub section 2(3) of the Repeal Act ex-facie reveals that Section 60(5) of the  amended  POTA  (2003)  has  been  omitted  by  the legislature in the provisions of Section 2(3) of the Repeal Act. Section  60(5)  of  the  former  Act  made  the  opinion  of  the Review Committee binding on the Central Government, State Government  and  the  Police  Officer  investigating  the  case. Section 2(3) of the Repeal Act is a new provision, enacted by the legislature, which provides for deemed withdrawal of a case (even if cognizance has been taken by the court), if the Review Committee forms an opinion that there is no prima facie case made out.”

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20. The learned Additional Solicitor General elaborating upon

the  said  stand  submitted  that  the  power  exercised  by  the

Review  Committee  under  section  2(3)  of  the  Repealing  Act,

though not subject to the supervising power of the Special court

under  section 321 of  the Code,  is  amenable  to the power  of

judicial review of the High Court under Article 226. He therefore

submitted  that  there  are  adequate  safeguards  against  any

misuse  or  abuse  of  power  by  the  Review  Committee  under

section 2(3).  

21. On the contentions urged the questions that arise for our

consideration are : (i) Whether sub-section (3) & (5) of section 2

of the Repealing Act are unconstitutional and therefore invalid;

and (ii) Having regard to section 2(3) of the Repealing Act, when

the Review Committee records an opinion that there is no prima

facie case  for  proceeding  against  the  accused  under  POTA,

whether  the  proceedings  shall  be  deemed  to  have  been

withdrawn against such accused or whether it is necessary for

the Public Prosecutor to file an application seeking consent of

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the court for withdrawal from prosecution under Section 321 of

the Code.   

22. The following well settled principles have to be kept in view

while examining the constitutional validity of section 2(3) and (5)

of the Repealing Act :

(a) Parliament has the exclusive competence to legislate

on terrorism and terrorist and disruptive activities which

threaten  the  security,  integrity  and  sovereignty  of  the

country,  as  they  fall  under  Entry  1  of  List  I  of  the

Seventh Schedule to the Constitution. Alternatively, they

would  fall  under  the  residuary  power  conferred  on

Parliament under Article 248 read with Entry 97 of List I

of Seventh Schedule (vide Kartar Singh v. State of Punjab

– 1994 (3) SCC 569).  

(b) There  is  always  a  presumption  in  favour  of  the

constitutionality of an enactment and the burden is upon

him  who attacks it, to show that there has been a clear

transgression of the constitutional principles. (Vide State

of  Jammu & Kashmir  vs. Triloki Nath Kosha – 1974 (1)

SCC 19)  

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(c) A law made by the Parliament can be struck down

by courts on two grounds and two grounds alone : (1)

lack  of  legislative  competence;  and  (2)  violation  of

fundamental  rights  guaranteed  under  Part-III  of  the

Constitution or any other constitutional provision. There

is  no  third  ground.  (Vide  State  of  Andhra Pradesh  vs.

Mcdowell & Co. – 1996 (3) SCC 709).  

(d) The power and competence of Parliament to make

laws in regard to the subjects covered by the legislative

fields committed to it, carries with it the power to repeal

laws on those subjects. The power of the Parliament to

repeal a law is co-extensive with the power to enact such

a law. (See Justice  G.P. Singh’s Principles of Statutory

Interpretation – 11th Edition, Page 633).  

(e) The Legislature may prescribe special procedure to

meet special situations and to meet special objectives so

long as they are not arbitrary or discriminatory. [Kathi

Raning Rawat v. The State of Saurashtra – 1952 SCR 435

and In Re : The Special Courts Bill, 1978 – 1979 (1) SCC

380].  

(f) If  any Central Act is repealed, without making any

provision for savings, the provisions contained in section

6 of General Clauses Act, 1897 will apply. But where the

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repealing Act itself contains specific provisions in regard

to  savings,  the  express  or  special  provision  in  the

Repealing Act  will  apply.  Section 6 of  General  Clauses

Act makes it clear that it will not apply, when a different

intention appears  in  the  Repealing  Statute.  Where  the

provision relating to savings is excluded, the repeal will

have  the  effect  of  complete  obliteration  of  the  statute.

(vide State of Orissa v. M.A.Tullock & Co. – 1964 (4) SCR

461, Nar Bahadur Bhandari v. State of Sikkim – 1998 (5)

SCC 39 and Southern Petrochemicals Industries Co. Ltd. v.

Electricity Inspector – 2007 (5) SCC 447).  

23. The Repealing Act contains an exhaustive provision relating

to savings in sub-sections (2)  to (5)  of  section 2. Therefore  the

savings from repeal will be governed by section 2(2) to 2(5) of the

Repealing Act and not by section 6 of the General Clauses Act,

1897.

24. The Parliament in its plenary power, can make an outright

repeal which will not only destroy the effectiveness of the repealed

act  in future,  but  also  operate  to  destroy  all  existing  inchoate

rights  and  pending  proceedings.  This  is  because  the  effect  of

2 8

repealing a statute is to obliterate it completely from the record,

except  to  the  extent  of  savings.  If  the  Parliament  specifically

excludes  any  saving  clause  in  a  Repealing  Act,  or  severely

abridges the provision for savings, which it has the power to do,

the  effect  would  be  that  after  the  repeal  of  the  statute,  no

proceeding can continue, nor can any punishment be inflicted for

violation of the statute during its currency. When Parliament has

the  power  to  repeal  a  law  outright  without  any  savings  and

thereby put an end to all pending prosecutions and proceedings

forthwith (without any need to comply with section 321 of  the

Code), can it be said that it does not have the power to make a

provision  in  the  Repealing  Act  for  the  pending  proceeding  to

continue, but those proceedings to come to an end, when a duly

constituted Review Committee with a sitting or retired Judge of

the High Court as Chairman, reviews the cases registered under

the repealed Act and reaches the opinion that there is no prima

facie case for proceeding against the accused ? Surely, the wider

and  larger  power  includes  the  narrower  and smaller  power.  It

should  be  remembered  that  continuation  of  a  proceedings  in

respect of any offence under an Act, after the repeal of such Act,

2 9

is itself as a result of a deeming fiction. Natural consequence of

repeal,  as  noticed  above,  is  complete  obliteration  including

pending  proceedings.  Continuation  of  a  pending  proceeding  is

possible  only on account of the deeming fiction created by the

savings  clause  in  the  Repealing  Act  which  provides  for

continuation of the proceedings as if  the Principal  Act had not

been repealed. Therefore any provision in the Repealing Act for

saving  a  pending  proceeding,  with  any  further  provision  for

termination of such pending proceedings, is a provision relating

to ‘winding up’ matters connected with the Repealed Act. By no

stretch  of  imagination  such  a  provision  can  be  termed  as

interference  with  judicial  power,  even  assuming  that  such  a

provision  in  a  live  unrepealed  statute  may  be  considered  as

interference  with  judicial  power.  It  is  therefore  unnecessary  to

examine  whether  section  2(3)  of  the  Repealing  Act  is  an

encroachment of judicial power, though such an examination was

done  with  reference  to  the  challenge  to  section  60(4)  to  (7)  of

POTA. Many tests applied for deciding the constitutional validity

of  live  and  current  statutes,  may  not  apply  to  ‘winding  up’

provisions in a savings clause of a Repealing Act,  dealing with

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repeal.  The  Parliament has the legislative  competence  to make

the Repealing Act. The Repealing Act repeals POTA and provides

for certain savings from repeal, to meet the special features of the

repealed statute. It does not violate any constitutional provisions.

Hence  the Repealing Act and in particular section 2(3)  and (5)

thereof are valid and constitutional.

25. This takes us to the second question as to the true import

of section 2(3) of the Repealing Act. Sub-section (2) of section 2

of the Repealing Act  makes it clear that the repeal of POTA will

not affect any investigation or legal proceeding in respect of any

penalty or punishment under the principal Act, and any such

investigation  or  legal  proceedings  may  be  instituted  or

continued, as if the principal Act had not been repealed.  The

proviso to sub-section (2) of section 2 makes it clear that 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 the Repealing Act.  The Repealing Act came

into force on 21.9.2004 and the period  of one year from the

date of repeal having also elapsed, no fresh offence punishable

3 1

under the POTA can be taken cognizance of by the court from

21.9.2005.  Certain  further  provisions  are  made  in  regard  to

pending  proceedings  in  sub-section  (3)  of  section  2  [sub-

sections (4) and (5) of section 2 of the Repealing Act are merely

supplemental  to  sub-section  93)  of  section  2  and  have  no

existence independent of section 2(3)]. Sub-section (3) provides

that notwithstanding  the repeal of Section 60 of the principal

Act,  the  Review  Committee  constituted  by  the  Central

Government under sub-section (1) of  Section 60, shall review

within one year from the commencement of the repealing Act,

all cases registered under the principal Act as to whether there

is  a  prima  facie  case  for  proceeding  against  the  accused

thereunder; and where the Review Committee is of the opinion

that  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,

and  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.

Section  2(3)  of  the  Repealing  Act  does  not  contemplate  or

3 2

provide for compliance with section 321 of the Code, before the

withdrawal comes into effect. The clear intention of section 2(3)

of the Repealing Act is that when the Review Committee opines

that  there  is  no  prima  facie  case  for  proceeding  against  the

accused,  on  review  of  the  pending  POTA  cases,  such  cases,

even though cognizance has been taken by the court, shall be

deemed to have been withdrawn without anything further to be

done.  In view of expression of such clear legislative intent in

section  2(3)  of  the  Repealing  Act,  there  is  no  question  of

bringing section 321 of the Code into play. If section 321 is held

to  be  applicable,  then the  provision  in  section  2(3)  that  the

cases shall be deemed to be withdrawn, is rendered nugatory

and  the  cases  are  not  actually  withdrawn  until  the

requirements  of  section  321  are  complied  with.  That  would

amount to rewriting section 2(3) which is clearly impermissible.

26. The High Court proceeded on the basis that section 2(3) of

the repealing Act is similar to section 60(4) to (7) of POTA, and

therefore it should be interpreted and dealt with in the same

3 3

manner  as  section  60(4)  to  (7)  of  POTA.  It  noted  that  the

Madras High Court had upheld the validity of section 60(4) to

(7)  of  POTA  by  holding  that  the  decision  of  the  Review

Committee was binding only on the State Government and the

Investigating Officer  and not on the Public  prosecutor or the

court, and that the procedure prescribed by section 321 of the

Code will have to be complied with, even after the decision by

the Review Committee  that there  was no prima facie case to

proceed against the accused. It held that the said declaration of

law would  also  apply  to section 2(3)  of  the  Repealing Act.  It

therefore upheld the validity of section 2(3) of the Repealing Act

subject  to  a  rider  that  even  where  Review  Committee  has

opined under section 2(3) that there was no prima facie case,

the  deemed  withdrawal  will  be  subject  to  fulfilment  of  the

requirements of section 321 of the Code. But the question is

whether  the  High  Courts  were  justified  in  assuming  in  the

impugned judgments that the provisions of section 2(3) of the

repealing Act are  similar to sections 60(4) to (7) of POTA, and

the decision of the Madras High Court as upheld by this Court,

3 4

will  not apply while interpreting section 2(3) of the Repealing

Act.

27. The Madras High Court proceeded on the basis that the

exercise of power by the Review Committee in regard to review

of  POTA  cases,  was  governed  by  sub-sections  (4)  to  (6)  of

section 60 of POTA. It found that these sub-sections provided

that  the  decision  of  the  Review  Committee  on  review,  was

binding only on the State Government and police officers and

not  on the public  prosecutor  or  the court.  The  Madras High

court  got  over  sub-section  (7)  of  section  60  of  POTA  (which

provided that when the Review Committee opines that there is

no prima facie case, then the proceedings pending against the

accused shall be deemed to have been withdrawn from the date

of such direction), by holding that the said sub-section did not

create  any  new  right  other  than  those  mentioned  in  sub-

sections (4) to (6) of section 60, and was only in the nature of

an  explanation  spelling  out  the  effect  of  the  exercise  of  the

power in sub-sections (4) to (6) of section 60 of POTA. It held

that sub-section (7) of section 60 cannot be read independently

3 5

by itself.  It  further held  that sub-section (7)  of  section 60 of

POTA had to be understood only in the context of section 321 of

the  Code,  to  mean  that  if  the  Review  Committee  forms  an

opinion that the prosecution of the accused did not attract the

provisions of POTA, the State Government which was bound by

the  direction,  will  have  to  address  the  Public  Prosecutor  to

withdraw the prosecution; and as the public prosecutor was not

bound  by  the  direction  of  the  Review  Committee,  he  could

formulate  his  independent  opinion  under  section  321  of  the

Code.  

28. But  the  scheme  of  section  2(3)  of  the  Repealing  Act  is

different from the scheme of sub-sections (4) to (7) of section 60

of POTA. The scheme under sub-sections (4) to (7) of section 60

under  POTA  (which  applied  to  proceedings  initiated  under

POTA when the Act was in force) was as follows : (a) the Review

Committee was required to review a POTA case under section

60(4),  only  when  an  application  was  made  by  an  aggrieved

person; (b) any direction issued by the Review Committee  on

such review,  was binding on the concerned Government and

3 6

investigating officer, but not the public prosecutor or the court

under section 321 of the Code. The scheme under section 2(3)

of the Repealing Act is categorical.  The review by the Review

Committee  is  not  dependent  upon  an  application  by  any

aggrieved person. The Review Committee had to make a general

review of all cases registered under POTA which were pending

at the time of repeal, irrespective of whether an application for

review was made by the accused or not. The purpose of such

general  review was to identify  the cases  where  there was no

prima facie  case  for  proceeding  against  the  accused,  so  that

they could be withdrawn. If  the Review Committee  expressed

the  opinion  that  there  is  no  prima  facie  case  for  proceeding

against  the  accused,  then  the  cases  pending  in  court,  even

where cognizance has been taken by the court, shall be deemed

to have been withdrawn with effect from the date of issuance of

direction by such Review Committee. The express provision in

section 2(3)  of  the Repealing Act that even where cognizance

has been taken by the court, the cases shall be deemed to have

been withdrawn, is not found in section 60(4) to (7) of POTA.

Once the law made by the Parliament specifically  states that

3 7

wherever the Review Committee is of the opinion that there is

no  prima facie case  for  proceeding  against  the  accused,  the

cases  shall  be  deemed  to  have  been  withdrawn.  If  the

Parliament wanted to make the provisions of section 2(3) of the

Repealing Act subject to Section 321 of the  Code, it would have

been done by making appropriate provisions therefor.  As that

is not done, plain meaning of the words of the legislation has to

be given effect to.   

29. Section  2(3)  of  the  Repealing  Act  also  contains  clear

indications which exclude section 321 of the Code. They are : (i)

The  review  is  by  Review  Committee  with  a  sitting  or  retired

Judge of the High Court as the Chairman, having the power of

a  civil  court  in  respect  of  discovery  and  production  of

documents and requisitioning records. (ii) All  cases registered

under POTA are required to be reviewed irrespective of whether

any application was made by an aggrieved person or not, so as

to find out whether there is a prima facie case for proceeding

against the accused under POTA; (iii)  The sub-section clearly

provides that where a Review Committee opines that there is no

3 8

prima  facie  case  for  proceeding  against  the  accused,  cases

pending in court also shall be deemed to have been withdrawn

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

Review Committee. The wording is clear and unambiguous and

does  not  contemplate  or  provide  for  a  further  application  of

mind by the Public Prosecutor or grant of consent by the court

under section 321 Cr.P.C. We are therefore of the view that the

High Court was not right in assuming that the decision of the

Madras High Court  approved by this Court  with reference to

section 60(4) to (7) of POTA will apply in regard to section 2(3)

of the Repealing Act.                 

30. An  apprehension  was  expressed  that  if  the  review

committee reaches a wrong opinion there will be no remedy. It

was  pointed  out  that  if  section  321  Cr.P.C.  was  applicable,

there  will  at  least  be  a  judicial  scrutiny  before  the  opinion

resulted in withdrawal. The scope of the role played by a court

under Section 321 of the Code was explained in SHEONANDAN

PASWAN  (supra),  thus:

3 9

“Since Section 321 finds a place in this chapter immediately after  Section  320,  one  will  be  justified  in  saying  that  it should  take  its  colour  from  the  immediately  preceding Section and in holding that this Section, which is a kindred to Section 320, contemplates consent by the court only in a supervisory manner and not essentially in an adjudicatory manner, the grant of consent  not depending upon a detailed assessment  of the weight or volume  of evidence to see the degree  of  success  at  the  end  of  the  trial.   All  that  is necessary  for  the  court  to  see  is  to  ensure  that  the application  for  withdrawal  has  been  properly  made,  after independent consideration, by the Public Prosecutor and in furtherance of public interest.   …..… The section does not insist upon a reasoned order by the Magistrate while giving consent.  All that is necessary to satisfy the section is to see that the Public Prosecutor acts in good faith and that the Magistrate is satisfied  that the exercise of discretion by the Public Prosecutor is proper.”

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  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

4 0

statute. The availability of judicial review under Article 226 in

the  event  of  errors  and abuse,  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

4 1

Court where the proceedings were pending, will continue with

the case as if there had been no such opinion.

33. In view of the above the appeals are disposed of as follows:

(i) The  judgments  under  challenge  to  the  extent  they

declare section 2(3) and (5) of the Repealing Act are not

unconstitutional, are upheld.  

(ii) 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.

(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.

4 2

(iv) 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.   

.….…………………….CJI  (K.G. BALAKRISHNAN)

…..……………………….J.         (R.V. RAVEENDRAN] NEW DELHI; OCTOBER 21, 2008.

4 3

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1113 OF 2005

Mahmadhusen Abdulrahim Kalota Shaikh ..Appellant

Versus

Union of India & Others .. Respondents

WITH

CRIMINAL APPEAL NOS.1498-1500 OF 2005, CRIMINAL  APPEAL  NO.359  OF  2006, CRIMINAL  APPEAL  NO.734  OF  2007, CRIMINAL APPEAL NOS.735 & 736 OF 2007 AND CRIMINAL  APPEAL  NO.  1651-1652  OF 2008 ARISING OUT OF SLP (CRL.) NO.3015- 3016 OF 2005.

J U D G M E N T

Dalveer Bhandari, J.

1. I have had the benefit of going through the judgment

prepared by Hon’ble the Chief Justice.  I am in agreement

with the conclusions arrived at by him, however, looking

to the importance of the matter, I deem it appropriate to

add my reasons for arriving at the same conclusions.

2. The  relations  of  those  who  died  in  the  Godhra

incident filed special civil applications in the High Court of

Gujarat, seeking to strike down sections 2(3) and 2(5) of

the Prevention of Terrorism (Repeal) Act, 2004 (for short

“POTA (Repeal) 2004”.  These sections allow the Central

Review Committee to withdraw pending cases against the

alleged accused.  The relations of the victims argued that

these  sections  violated  Articles  14  and  21  of  the

Constitution,  were the antithesis of  the rule of  law and

encroached  on  the  judicial  power  of  the  State.   In  its

judgment,  the  High  Court  of  Gujarat  relied  to  a  great

extent on the judgment of the Madras High Court.   On

04.02.2004,  in  The  Government  of  Tamil  Nadu  &

Others v. Union of India & Another 2004 (1) CTC 641,

the Madras High Court read the thrust of section 321 of

the Code of  Criminal  Procedure  (for  short  the “Cr.P.C.”)

into POTA 2002.

3. The Madras High Court ordered the Special Court to

give  “due  consideration”  to  the  Review  Committee’s

4

decision.  A two-Judge Bench of this Court on 8.3.2004,

in a short order while dismissing the special leave petition

arising out of the Madras High Court judgment,  upheld

the  application  under  section  321  of  Cr.P.C.  The  said

order is reproduced as under:-

“the Special Leave Petitions are filed against the judgment  of  the  High  Court  challenging  the amendments to the Prevention of Terrorism Act, 2002  which  gives  to  the  Review  Committee powers  which  earlier  it  did  not  have.   By the amendment,  the  decision  of  the  Review Committee  is  made  binding  on  the  Central Government, State Governments and the Police Officers  investigation  the  offence.   The  High Court has held, in our view correctly, that these amendments are based on the recommendations made by the Constitution Bench of this Court in Kartar Singh  v. State of Punjab reported in (1994) 3 SCC and the judgment of this Court in R.M. Tiwari v. State (1998) 2 SCC 610.  There are  the  provisions  which  provide  safeguards against  misuse  of  the  stringent  provisions  of such an Act.  In our view, the High Court has also correctly held that the directions given by the Review Committee could only be subject to Section 321 of the Criminal Procedure Code. We, therefore, see no reason to interfere.  The Special Leave Petitions are accordingly dismissed.”

4. The High Court of Gujarat was dealing with a POTA

(Repeal) 2004 question, not POTA 2002, it sought to find

language that was  pari  materia to both statutes.  If  the

statutes were effectively the same, then the Madras High

Court  judgment  would  be  relevant  to  the  Gujarat  case.

Moreover,  the  Gujarat  High  Court  could argue  that  the

Supreme Court gave its imprimatur of approval.

5. The High Court reasoned that section 2(3) of POTA

(Repeal) 2004 is pari materia with section 60(7) read with

section 60(4) of POTA 2002.  Section 2(3) of POTA (Repeal)

2004 provides that where the Review Committee is of the

opinion that 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.

6. Section 60(7)  of  POTA 2002  states  that  where  any

Review Committee constituted under sub-section (1) is of

opinion that there is no prima facie case for proceeding

against  the  accused  and  issues  directions  under  sub-

section  (4),  then  the  proceedings  pending  against  the

accused shall be deemed to have been withdrawn from the

date of such direction. In the High Court’s words:

4

“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 were  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 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.”

(emphasis added]

7. It  appears  as  though  the  Gujarat  High  Court

considered “proceedings pending against the accused” to

include those proceedings in which the Special Court had

taken  cognizance  of  the  matter.   From  this  limited

interpretation, one can call the statutes  pari materia.  It

seems  that  the  High  Court  correctly  downplayed  the

difference  between  the  Review  Committee’s  having  to

receive an application before taking action and the Review

Committee’s having to take action immediately and review

all pending cases.

8. Ultimately, the debate over whether the statutes are

pari materia misses the point.  If  section 321 of Cr.P.C.

itself cannot apply,  the issue comes for consideration is

whether  or  not  POTA (Repeal)  2004  encroaches  on  the

jurisdiction and powers is clearly violative of the concept

of the separation of powers.  Here, the High Court neither

provides  analysis  nor  support  for  its  conclusion  that

4

judicial review is not affected. Then again, judicial review

is only slightly modified when section 321 of Cr.P.C. has

been read into POTA Repeal 2004, as the High Court did.

That is likely why the High Court chose not to analyze the

question from a judicial review standpoint.   The Special

Court still gets the last word, but it now has to give the

Review Committee’s decision “due weightage”  or it  must

accept the Review Committee’s opinion “unless there are

exceptional reasons for not doing so.”  Of course, it is the

public  prosecutor  who  is  most  affected  by  the  Gujarat

High Court’s Scheme. He no longer chooses whether to file

an  application  for  withdrawal  or  not.   The  Review

Committee can compel him to do so.  This is at odds with

section 321 of Cr.P.C.  That said, it may have been the

High  Court’s  attempt  at  harmoniously  interpreting  two

competing  statutes.  The  High  Court  while  concluding

observed thus:

“….once the Review Committee, after hearing the concerned  parties  and  perusing  the  relevant records/material forms an opinion that no prima facie case is made out for proceeding against the accused  under  the  2002  Act,  the  Public Prosecutor  appointed  under  Section  28  of  the Act  will  have  to  file  appropriate  application

under Section 321 of the Code without any delay and the Special Court will  be required to pass appropriate  order  giving  due  weightage  to  the opinion of the Review Committee and keeping in view the observations made by the (1996) 2 SCC 610 and Shaheen Welfare Association Supreme Court in R.M. Tiwari’ v. State of Delhi v. Union of India (1996) 2 SCC 616”  

9. Before proceeding, I note that R.M. Tiwari’s case was

dealt  with  by  a  two-Judge  Bench.  Several  States  had

constituted Review Committees, to review cases brought

under TADA, 1987.   The Committees were appointed in

compliance with Kartar Singh v. State of Punjab (1994)

3 SCC 569.  Relying on Sheonandan Paswan v. State of

Bihar & Others (1983) 1 SCC 438 (and other cases that

analyzed section 321 of Cr.P.C. in the absence of a statute

to  the  contrary,  the  Court  found  that  the  Committee’s

recommendation  to  withdraw was  not  binding  and  was

subject to section 321 of Cr.P.C.  This case does not apply

to the present dispute because the Court was not dealing

with POTA (Repeal) 2004, whose text expressly states that

the Committee can deem a case withdrawn.  Instead, the

case  was  interpreting  the  State  Review  Committee’s

5

interpretation of  Kartar  Singh’s  directions,  which  are

ambiguous as to whether section 321 of Cr.P.C.  should

apply to the Committee(s) it spawned.

10. The  Madras  High  Court  took  a  similar  stand  but

more closely adhered to the case law that has interpreted

section 321 of Cr.P.C. by retaining the public prosecutor’s

ability to make an independent decision.  The High Court

observed thus:

“The words in sub-section (7)  of  Section 60 of POTA,  ‘the  proceedings  pending  against  the accused  shall  be  deemed  to  have  been withdrawn from the date of such direction’ shall have  to  be  understood  only  in  the  context  of Section  321  of  Code  of  Criminal  Procedure  to mean  that  if  the  Review  Committee  forms  an opinion  that  the  prosecution  under  POTA against  the  accused  respondents  does  not attract  the  provisions  of  POTA,  appropriate directions  can  be  issued  to  the  State Government  and  if  the  directions  are  in  the nature  of  addressing  the  Public  Prosecutor  to withdraw the prosecution, then such a direction is binding  on the State  Government.   But the said  direction  is  not  binding  on  the  Public Prosecutor,  as  under  Section  321  Code  of Criminal  Procedure,  he  has  to  formulate  his opinion on his independent application of mind and  even  if  an  application  under  Section  321 Code of Criminal Procedure is filed, the ultimate arbiter  is  the  Special  Court,  which  has  to consider the matter taking the over all situation

but by giving due consideration to the opinion of the Review committee…”

11. Before turning to the Supreme Court’s brief order in

which it  upheld  this  case,  I  must  examine  the  Madras

High  Court’s  reasoning  with  regard  to  the  issue  of

encroachment on judicial power in violation of separation

of powers.  The Madras High Court assumes that section

321 of Cr.P.C. applies to POTA.  No detailed analysis is

provided – sections 4 and 5 of Cr.P.C. are not raised; nor

is the question as to why Parliament would require two

reviews.  If I were to assume that section 321 of Cr.P.C.

applies,  the  question  of  interference  with  the  judiciary

becomes moot.

12. It  has  become  imperative  to  deal  the  aspect  of

removal  of  judicial  review  on  basic  structure  of  the

Constitution.

DOES REMOVAL OF JUDICIAL REVIEW, WHICH IS THE CONCEPT  BEHIND  SECTION  321  Cr.P.C.,  VIOLATE THE BASIC STRUCTURE?

5

13. While section 321 of Cr.P.C. itself does not apply, the

principle  of  judicial  review  embodied  therein  does.   In

other words, section 321 of Cr.P.C. is a codified version of

judicial  review.   At  the  trial  court  level,  section  321  of

Cr.P.C. ensures that the judiciary makes the final decision

by approving the public prosecutor’s decision to withdraw

a case. Even if section 321 of Cr.P.C. is made inapplicable

by a special law like POTA (Repeal) 2004 or POTA 2002,

judicial review still applies.   Section 321 of Cr.P.C. is a

general provision that can be subjected to special laws.

14. On the other hand, judicial review should not suffer

the same fate. A violation of judicial review is another way

of  saying  that  the  separation  of  powers  between  the

principal  three  organs  of  the  State  have  been  violated.

Judicial  review forms part  of  the basic  structure of  the

Constitution.  And when judicial review is removed – even

at  the  trial  court  level  –  the  question  becomes  one  of

degree  :  has  the  basic  structure  been  destroyed?   Our

short answer is that because POTA (Repeal) 2004 has not

removed judicial review under Article 226 or Article 136,

the basic  structure has not been destroyed.   Given the

gravity of this question, I deem it necessary to explain my

reasoning.

15. The Courts’ powers to grant consent to a prosecutor’s

request to withdraw exits in the absence of section 321 of

Cr.P.C.   This  is  because  in  the  matter  concerning

judiciary, it should have the final say over cases that have

been  placed  before  it.   It  goes  without  saying  that  the

Court’s  decision  to  grant  consent  to  an  application  for

withdrawal is a judicial function.   If it is granted, the case

is over.  Resolving legal disputes is the core function of the

judiciary.  The power to take a final decision once a case is

before  a  Court,  irrespective  of  the  stage  at  which  the

determination is made, should rest with the judge.  To the

extent POTA (Repeal) 2004 takes this decision away from

the judge, it implicates the basic structure doctrine.

16. This Court has not had the opportunity to analyze

what is behind section 321 of Cr.P.C.  Before POTA, there

was no need to ask whether judicial review exists in the

5

absence of section 321 of Cr.P.C.  That is why the cases

analyzing  section  321  of  Cr.P.C.  are  illustrative  of  the

importance of judicial review, but they are not on point.

For  example,  in  the  State  of  Bihar v. Ram  Naresh

Pandy & Another AIR 1957 SC 389, this Court observed

as under:-

“3……The section is an enabling one and vests in the Public Prosecutor the discretion to apply to the Court for its consent to withdraw from the prosecution  of  any  person.  The  consent,  if granted, has to be followed up by his discharge or  acquittal,  as  the  case  may  be.  The  section gives no indication as to the grounds on which the Public Prosecutor may make the application, or the considerations on which the Court is to grant  its  consent.  There  can  be  no  doubt, however,  that  the  resultant  order,  on  the granting  of  the  consent,  being  an  order  of 'discharge'  or  'acquittal',  would  attract  the applicability  of  correction  by  the  High  Court under ss. 435, 436 and 439 or 417 of the Code of  Criminal  Procedure.  The  function  of  the Court,  therefore,  in  granting  its  consent  may well be taken to be a judicial function. It follows that  in  granting  the  consent  the  Court  must exercise a judicial discretion….”  

As far back as 1957, this Court recognized that the High

Court  could  still  correct  the  trial  court’s  decision  to

withdraw.

17. In  Sheonandan  Paswan’s case  (supra),  a  three-

Judge Bench of this Court stated:

“89……..The exercise of the power to accord or withdraw consent by the Court is discretionary. Of  course,  it  has  to  exercise  the  discretion judicially. The exercise of the power of the Court is  judicial  to  the  extent  that  the  Court,  in according  or  refusing  consent,  has  to  see  (i) whether  the  grounds  of  withdrawal  are  valid; and (ii) whether the application is bona fide or is collusive…..”

A  Constitution  Bench  in Sheonandan  Paswan v.

State  of  Bihar (1987)  1  SCC  288  referred  to  and

approved the above judgment.

SEPARATION  OF  POWERS  IS  PART  OF  THE  BASIC STRUCTURE:

18. In  His  Holiness Kesavananda  Bharati

Sripadagalvaru v. State of Kerala & Another (1973) 4

SCC 225, the Court opined that separation of powers is a

part  of  the basic  structure of the Constitution of  India.

(1973) 4 SCC 225, per Sikri, C.J., as paras 292 and 293,

per Shelat and Grover JJ at para 582 – “Demarcation of

5

power  between  the  legislature,  the  Executive  and  the

Judiciary”.

19. I  need not dwell  on the fact  that the separation of

powers is part of the basic structure.  This has been well

established in a plethora of cases. [See:  S.R. Bommai &

Others  v.  Union  of  India & Others (1994)  3  SCC 1,  Per

Chandrachud, J. at 2742, per Beg. J. at 2426-30, 2472,

per  Ray,  C.J.,  at  2320;  State  of  Bihar  & Another v.  Bal

Mukund Sah & Others (2000) 4 SCC 640 (para 32);  I.R.

Coelho (Dead) by LRs v. State of Tamil Nadu (2007) 2 SCC

1; Indira Nehru Gandhi v. Raj Narain, 1975 (Suppl) SCC 1;

Minerva  Mills  Ltd.  &  Others v.  Union  of  India  &  Others

(1980)  3  SCC  625;  Sub-Committee  on  Judicial

Accountability v. Union of India & Others (1991) 4 SCC 699;

I. Manilal Singh v.  Dr. H. Borobabu Singh & Another 1994

Supp.  (1)  SCC  718;  Union  of  India v.  Association  for

Democratic Reforms & Another (2002) 5 SCC 294;  Special

Reference No.1 of 2002,  In re (Gujarat Assembly Election

matter),  (2002)  8  SCC  237;  Pratap  Singh v.  State  of

Jharkhand  &  Another (2005)  3  SCC  551;  Rameshwar

Prasad & Others (VI) v.  Union of India & Another (2006) 2

SCC 1; Kuldeep Nayar & Others v. Union of India & Others

(2006)  7  SCC 1;  Raja  Ram Pal v.  Hon’ble  Speaker,  Lok

Sabha & Others (2007) 3 SCC 184.

20. However, our Constitution does not envisage a strict

separation  of  powers.  There  is  separation  by  necessary

implication.   In  fact,  the  Constituent  Assembly  negated

strict separation of powers. Amendment 40 was proposed.

It  read,  “40-A.   There  shall  be  complete  separation  of

powers as between the principal organs of the State viz.

the Legislative, the Executive, and the Judicial.”  This was

resisted by Dr. Ambedkar and others on the ground that

what  was  required  was  a  harmonious  governmental

structure  and  not  a  strict  or  complete  separation  of

powers  [See  Constitution  Assembly  Debates,  Vol.VII,

p.959].

21. From  the  very  beginning,  the  Supreme  Court  has

recognised  the  existence  of  an  implied  separation  of

5

powers.   See:  In  Re  Delhi  Laws  Act,  1912,  Ajmer-

Merwara  (Extension  of  Laws)  Act,  1947 v.  Part  ‘C’

States (Laws) Act, 1950 (Reference under Article 143

of  the  Constitution  of  India) AIR  1951  SC  332;  Rai

Sahib  Ram  Jawaya  Kapur  &  Others v.  State  of

Punjab,  AIR 1955 SC 549 : (1955) 2 SCR 225 and  Ram

Krishna Dalmia & Others v. Justice S.R. Tendolkar &

Others AIR 1958 SC 538.

22. With each organ of the State overseeing its sphere of

control,  the  Court  has  had  occasion  to  protect  the

judiciary from executive and/or legislative encroachment.

Where judicial review is curbed or outrightly removed, the

Court may review the constitutional  validity  of  such an

action.   

23. Indira Nehru Gandhi  case (supra) provided one of

the occasions in which separation of powers was invoked.

In response to this judgment, the Parliament passed the

Election Laws (Amendment)  Act,  40 of  1975.   This  Act,

inter alia, provided that services rendered by government

servants shall not be deemed to be in furtherance of the

candidate’s  election.   Shortly  thereafter,  Parliament

passed the 39th Amendment by which,  inter  alia, Article

329A was inserted into the Constitution. [Para 3].  Article

329A(1)  and  (2)  provided  that,  in  the  future,  a  Prime

Minister’s election to either House of Parliament could not

be questioned by the judiciary. [Paras 5-6].

24. Article 329(A)(4) stated that no election laws apply or

shall  be  deemed  to  have  applied  to  Parliamentary

elections.   [Para  8].   In  addition,  it  nullified  any  court

order that had voided an election. [Para 8].  Article 329(A)

(5)  directed  the  Court  to  dismiss  any  appeal  pending

before the Supreme Court consistent with 329(A)(4). [Para

9].   Article  329(A)(6)  stated  that  the  provisions  of  329

would go in effect notwithstanding anything contained in

the Constitution. [Para 10].

25. The Court struck 329A(4),  holding it in violation of

the  basic  structure.   Article  329(A)(4)  appropriated  the

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Court’s power to adjudicate election laws, encroaching on

the  judiciary  in  violation  of  separation  of  powers.   In

voiding  this  part  of  the  39th Amendment,  the  Court

declared that separation of powers and judicial review (by

necessary  implication)  are  part  of  the  basic  structure

because  of  the  retrospective  effect  of  the  Election  Laws

(Amendment)  Act,  40  of  1975.   I  turn  to  a  number  of

relevant passages for further guidance:-

“Para 60: (Ray, C.J.) It  is true that no express mention is made in our Constitution of vesting in the  judiciary  the judicial  power  as  is  to  be found  in  the  American  Constitution.  But  a division  of  the  three  main  functions  of Government  is  recognised  in  our  Constitution. Judicial power in the sense of the judicial power of the State is vested in the Judiciary. Similarly, the  Executive  and  the  Legislature  are  vested with powers in their spheres. Judicial power has lain in the hands of the Judiciary prior to the Constitution and also since the Constitution. It is  not  the  intention  that  the  powers  of  the Judiciary should be passed to or be shared by the  Executive  or  the  Legislature  or  that  the powers  of  the  Legislature  or  the  Executive should pass to or be shared by the Judiciary.

Para 64: (Ray, C.J.) “Clause 5 in Article  329-A states that an appeal against any order of any court referred to in Clause 4 pending, before the commencement of the Constitution (Thirty-ninth Amendment)  Act,  1975,  before  the  Supreme

Court,  shall  be disposed of  in conformity with the provisions of Clause 4. The appeal cannot be disposed of in conformity with the provisions of Clause  4  inasmuch  as  the  validation  of  the election cannot rest on Clause 4.”

26. I  note  that  the  very  fact  that  the  Court  did  not

dispose of the appeal by writing a summary order citing to

Clause  5  shows  that  the  Court  dismissed  outright  the

Parliament’s attempt to remove a pending appeal from the

Court’s  purview.    By  holding  Article  329(A)(4)

unconstitutional,  Clause  (5)  became   moot.    Justice

Chandrachud, as he then was, recognized this technical

point and held both Clauses (4) and (5) unconstitutional.

The others did not seem it necessary to deal with Clause

(5).  [see Khanna, J. at para 185]

27. At  para  688,  Justice  Chandrachud  further

expounded the doctrine of separation of powers:

“I do not suggest that such an encroaching power will be pursued relentlessly or ruthlessly by  our  Parliament.  But  no  Constitution  can survive without a conscious adherence to its fine checks and balances. Just as Court ought not to enter  into  problems  entwined  in  the  "political

6

thicket",  Parliament  must  also  respect  the preserve  of  the  courts.  The  principle  of separation of powers is a principle of  restraint which  "has  in  it  the  precept,  innate  in  the prudence of self-preservation (even if history has not repeatedly brought it home), that discretion is the better part of valour" Social Dimensions of Law and  Justice-Julius  Stone  (1966).  p.  668.] Courts have, by and large, come to check their valorous  propensities.  In  the  name  of  the Constitution, the Parliament may not also turn its  attention  from  the  important  task  of legislation to deciding  court cases for which it lacks  the  expertise  and  the  apparatus.  If  it gathers  facts,  it  gathers  facts  of  policy.  If  it records findings, it does so without a pleading and without framing any issues.  And worst  of all, if it decides a Court case, it decides without hearing  the  parties  and  in  defiance  of  the fundamental principles of natural justice.”

28. This  raises  the  issue  of  the  Review  Committee’s

competence  to  decide  the  court  case.   Even  a  ruling

wherein prima facie cases are withdrawn, the decision to

withdraw is final and terminates the case in favour of the

accused.  A case has thus been decided.   The question

regarding  the  Committee’s  competence  loses  some

relevance when I consider that the aggrieved party could

still file an appeal against such a decision.  Nevertheless,

the Review Committee is an executive body that is making

a judicial decision.

29. The  Executive  appoints  the  Review  Committee.   A

majority of its members belong to the Executive Branch.

Under  POTA  (Repeal)  2004,  the  Executive’s  Review

Committee has the power to decide cases.  Thus, judicial

review has  been  implicated.   Given  that  judicial  review

forms part of the basic structure, it is our job to determine

if POTA (Repeal) 2004 has gone too far.

30. In order to reach its decision, the Review Committee

can conduct discovery.  It has the power to compel parties

to produce any document.  In addition, it can requisition

any public record pursuant to the Code of Civil Procedure,

1908.  

31. Despite its access to the relevant  information,  it  is

not a court and could be more easily swayed by political

considerations.   Owing  allegiance  to  the  Executive,  the

Review Committee could be tempted to decide the outcome

6

of  a case based on that which is politically  expedience.

After  all,  it  is  an  Executive  body  that  is  performing  a

purely judicial decision.  At para 689 (Chandrachud, J. as

he then was) observed that:

“…The "separation of powers does not mean the equal balance of powers". says Harold Laski, but the exercise by the legislature of what is purely and indubitably a judicial function is impossible to sustain in the context even of our co-operative federalism which contains no rigid distribution of  powers  but  which  provides  a  system  of salutary checks and balances.

32. Ultimately, at para 696, Justice Chandrachud held:

“…that  clauses  (4)  and  (5)  of  Article  329A  are

unconstitutional and therefore void….”   Justice Khanna

at para 213 finds 329A(4) to violate the principle of free

and fair elections.  Embedded within this principle is the

idea that a forum must be provided for the resolution of

the dispute.

”As  a  result  of  the  above.  I  strike  down Clause (4) of Article 329A on the ground that it violates  the  principle  of  free  and fair  elections which  is  an  essential  postulate  of  democracy and  which  in  its  turn  is  a  part  of  the  basic structure of the Constitution inasmuch as (1)  it abolishes  the  forum  without  providing  for another forum for going into the dispute……”

33. Citing  the  decisions  of  foreign  countries  wherein

election  disputes  are  resolved  by  the  Legislature  itself,

Justice Khanna did not strike the amendment on the sole

ground  that  it  failed  to  provide  for  a  judicial  forum;

instead,  other forums would have also been acceptable.

[paras 198 and 207].    His concern was that no forum

whatsoever was provided.  In the instant case, a judicial

forum – the High Courts and the Supreme Court – is there

for  those  who are  aggrieved  by  the  Review Committee’s

decision.

34. Justice Mathew’s opinion shows how judicial review

is necessarily linked to the separation of powers doctrine.

By stripping the Court of judicial review of election cases,

Article  329A(4)  bestows  a  power  on  an  organ  of

government that is  incapable  of  providing  a just  result.

Justice Mathew stated at para 325 that:

“…it was an essential  feature of democracy as established  by  the  Constitution,  namely,  (that there  should  be  a)  a  resolution  of  an  election dispute  by  an  authority  by  the  exercise  of

6

judicial  power by ascertaining the adjudicative facts and applying and applying the relevant law for  determining  the  real  representative  of  the people.”

35. At  para  327,  Justice  Mathew holds  Article  329A(4)

unconstitutional, in violation of the separation of powers.

Given that our separation of powers is somewhat flexible,

he finds that the Parliament  could only  remove judicial

review by enacting a constitutional amendment.  Para 327

reads as under:-

“…The  amending  body,  though  possessed  of judicial power, had no competence to exercise it, unless it passed a Constitutional law enabling it to  do  so.  If,  however,  the  decision  of  the amending  body  to  hold  the  election  of  the appellant valid was the result of the exercise of an  'irresponsible  despotic  discretion'  governed solely by  what  it  deemed political  necessity  or expediency, then, like a bill of attainder, it was a legislative  judgment  disposing  of  a  particular election dispute and not the enactment of a law resulting in an amendment of the Constitution. And,  even if  the latter  process (the exercise of despotic  discretion)  could  be  regarded  as  an amendment of the Constitution, the amendment would damage or destroy an essential feature of democracy  as  established  by  the  Constitution, namely, the resolution of election dispute by an authority  by  the  exercise  of  judicial  power  by ascertaining  the  adjudicative  facts;  the amending  body  cannot  gather  these  facts  by

employing  legislative  process;  they  can  be gathered only by judicial process.”

36. In  Minerva  Mills (supra),  section  55  of  the  42nd

Amendment was at issue.  Section 55 inserted sub-section

(4)  and  (5)  into  Article  368  to  bar  judicial  review  of

constitutional amendments.  The Court held that Section

55  of  the  42nd Amendment  was  beyond  the  amending

power and was void “since it removes all limitations on the

power  of  Parliament  to  amend  the  Constitution  and

confers powers upon it to amend the Constitution so as to

damage  or  destroy  its  basic  or  essential  features  or  its

basic  structure.”   Justice  Bhagwati,  as  he  then  was,

struck  the  Parliament’s  attempt  to  immunize  all

amendments from judicial review:

“…So long as Clause (4) stands, an amendment of the Constitution though unconstitutional and void  as  transgressing  the  limitation  on  the amending power of Parliament as laid down in Kesavananda  Bharati's  case,  would  be unchallengeable  in  a  court  of  law.  The consequence  of  this  exclusion  of  the  power  of judicial  review  would  be  that,  in  effect  and substance,  the  limitation  on  the  amending power  of  Parliament  would,  from  a  practical point of view, become non-existent and it would not  be  incorrect  to  say  that,  covertly  and

6

indirectly, by the exclusion of judicial review, the amending  power  of  Parliament  would  stand enlarged, contrary to the decision of this Court in  Kesavananda  Bharati's  case.  This  would undoubtedly damage the basic structure of the Constitution,  because  there  are  two  essential features of the basic structure which would be violated, namely, the limited amending power of Parliament and the power of judicial review with a  view  to  examining  whether  any  authority under the Constitution has exceeded the limits of  its  powers,  I  shall  immediately  proceed  to state  the  reasons  why  I  think  that  these  two features form part of the basic structure of the Constitution.”

37. L. Chandra Kumar v. Union of India (1997) 3 SCC

261 is  another  case  wherein  the  Court  struck  down  a

constitutional amendment that sought to remove judicial

power.  This Court reviewed the 42nd Amendment through

which the Parliament sought to insert Articles 323-A and

323-B in  the  Constitution.   [para  5].   Article  323-b  (2)

empowered the Parliament or the State Legislatures to set

up  Tribunal  to  resolve  a  wide  variety  of  disputes:  tax

cases,  foreign  exchange  matters,  industrial  and  labour

cases,  ceiling  or  urban  property,  criminal  matters  etc.

[para 35].   Article 323-B(3)(d) excluded the jurisdiction of

all  courts,  save  for  the  Supreme  Court’s  Article  136

jurisdiction.  [para 35].  In effect, this provision enabled

the Government to divest the lower and High Courts of the

bulk of their workload. [para 35].

38. The  Court  held  that  judicial  review,  under  Articles

226 and 227 in the High Courts and under Article 32 in

the Supreme Court respectively is an essential feature of

the  Constitution and  forms part  of  the  basic  structure.

[para 78].  Thus, it is inviolable.  [para 99]. By ousting the

higher judiciary of its jurisdiction under Articles 226/227

and 32, the impugned Articles 323-A(2)(d) and 323B-(3)(d))

violated  court’s  power  of  judicial  review.   The  Court

allowed  Parliament  and  State  Legislatures  to  set  up

Tribunals, provided the higher judiciary retains its Article

226-227/32 jurisdiction.  [para 81].   

39. A  nine-Judge  Bench  in  I.  R.  Coehlo  (supra) was

constituted  to  clarify  the  following  question  of

fundamental importance:

“The  fundamental  question  is  whether  on and after  24th April,  1973  when  basic  structures doctrine  was propounded,  it  is  permissible  for

7

the Parliament  under  Article  31B to immunize legislations from fundamental rights by inserting them into the Ninth Schedule and, if so, what is its effect on the power of judicial review of the Court.” (para 4)

40. If  a  law abrogates or abridges  a fundamental  right

(by  amendment  or  by  insertion  in  the  9th Schedule),  the

Court may exercise its judicial review power and examine

it  on  the  touchstone  of  the  basic  structure  doctrine  as

reflected  in  Article  21  read  with  Articles  14  and  9  by

application of the “rights” and “essence of the right” tests.

[See  conclusions  (i)  and  (iii)].  The  Court  in  Coehlo

observed as under:

“The  existence  of  the  power  of  Parliament  to amend  the  Constitution  at  will,  with  requisite voting strength, so as to make any kind of laws that excludes Part III including power of judicial review under Article 32 is incompatible with the basic structure doctrine. “

41. Of 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, “… 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.

42. Those who are aggrieved by the Review Committee’s

decision  to  withdraw  still  have  judicial  recourse  under

Article 226 of the Constitution.  Under this Article, it may

take appropriate steps in the High Court (or in this Court)

against  the  Review  Committee’s  decision  to  withdraw.

One cannot say that the aggrieved parties are without a

remedy, when those parties can approach the High Court

7

(or this Court).  I make it clear that the High Court should

examine  the  aggrieved  parties’  cases,  if  those  parties

choose  to  contest  the  Review  Committee’s  decision  to

withdraw.

43. Unlike the provisions at issue in the  Election case,

Minerva Mills, L. Chandra and I. R. Coehlo (supra),  POTA

(Repeal) 2004 do not strip the higher judiciary of judicial

review.  As such, POTA (Repeal) 2004 survives.  A violation

of separation of powers need not rise to such a level before

this  Court  will  consider  it  an  abrogation  of  the  basic

structure.

44. With  the  constitutional  analysis  behind  us,  I

recognize the pragmatic effect of this ruling.  It is now up

to  those  who  feel  aggrieved  by  the  Review Committee’s

decision  to  file  a  writ  petition  under  Article  226  of  the

Constitution.   While  a  review  of  the  Review  Committee

seems  cumbersome  and  redundant,  it  is  nevertheless

essential and required.

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.

POTA  (REPEAL)  2004  IS  A  SPECIAL  ACT  THAT OVERRIDES GENERAL ACTS SUCH AS THE Cr.P.C.:

46. In addition, POTA (Repeal) 2004 is a special Act that

trumps  a  general  Act  such  as  the  Cr.P.C.   This  is

consistent  with  the  general  principle  of  statutory

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interpretation.  What is more, the CrPC itself allows the

Parliament  to  deviate  from the Cr.P.C.  when necessary.

The Cr.P.C. says that it is a general law that is subject to

special laws.  Sections 4(1) and (2) and (5) of Cr.P.C. read

as under:

“Section 4(1): All  offences under the Indian Penal  Code  (45 of  1860)  shall  be  investigated, inquired  into,  tried,  and  otherwise  dealt  with according to the provisions hereinafter contained.

Section  4(2):  All  offences  under  any  other law shall be investigated, inquired into, tried, and otherwise  dealt  with  according  to  the  same provisions,  but subject to any enactment for    the   time  being  in  force  regulating  the  manner  or place  of  investigating,  inquiring  into,    trying  or   otherwise dealing with such offences.   

Section 5: “Nothing contained in this Code shall,  in the absence of a specific provision to the contrary, affect any special or local law for the  time  being  in  force,  or  any  special jurisdiction  or  power  conferred,  or  any  special form of procedure prescribed, by another law for the time being in force.”

47. The  Special  Act  must  be  deemed to  supercede  the

provisions of  the general  Act.     In  Harbans Singh &

Others v. The State, AIR 1953 (All.) 179 at p. 18, the U.P.

Private Forests Act (Act No.6 of 1949) was a special statute

that precluded Magistrates of the First Class from trying

violations  under  the  Act.    Under  Schedule  III  of  the

general Cr.P.C. of 1898, Magistrates of the First Class had

the  power  to  try  similar  offences.  The  Allahabad  High

Court held that the special law must trump the general

and set aside the conviction entered by the Magistrate of

the First Class.   The Court relied on Section 5 of the CrPC

1898, from which S. 5 of the CrPC, 1973 borrowed:

“Para 4.  It  is,  therefore clear that the powers conferred  under  the  general  provisions  of  the Code of Criminal Procedure are subject to any special  provisions  that  might  be  made  with regard  to  the  exercise  or  regulation  of  those powers  by  any  special  Act.  The  special  Act having made such provisions with regard to the offences under the said Act must be deemed to supersede the provisions of the general Act.”

48. The provisions of the Special Law must prevail and

the CrPC must give way.  In an earlier case,  Kripa Ram

&  Others v.  Ram  Asrey  AIR  1951  (All.)  414,  the

Allahabad  High  Court  emphasized  this  principle.   The

accused had allegedly stolen mangoes valued at less than

Rs.50.   Section  52  of  the  Village  Panchayat  Raj  Act

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provided that offences where less than Rs.50 was at stake

were to be tried by the Panchayat Adalat.  The provision

as to the amount in controversy was special relative to the

general  provisions  of  the  Penal  Code,  under  which  the

Judicial Magistrate convicted the accused.  Therefore, the

High  Court  set  aside  the  lower  court’s  conviction  and

transferred the case to the Panchayat Adalat.  Even where

Special Courts had not been constituted and transfer of

the case to a non-existing court could lead to lawlessness,

the  rule  of  special  vis-à-vis  general  was to  be  followed.

Paragraph 3 reads as under:  

“… The fact that the Panchayati Adalats had not been constituted would not affect the provision taking away jurisdiction from the other Courts, although  it  may  result  in  inconveniences  and lawlessness.”

49. The  Statement  of  Objects  and  Reasons  of  POTA

(Repeal) 2004 expressly says that it is special.  The POTA,

like the  TADA before,  deviate  from the general  criminal

Codes  (the  Indian  Penal  Code,  1860  and  the  Criminal

Code of Procedure, 1973) and provide special substantive

and procedural rules for acts of terrorism.   It  was first

reasoned  by  the  Legislature  that  harsher  laws  were

necessary to combat and deter terrorism.  While reviewing

the Constitutionality of TADA, the Court in Kartar Singh

(supra) gave  the  Parliament  a  substantial  amount  of

deference and upheld all but section 22 of TADA – subject

to a few modifications – finding that the Parliament had

the legislative competence to make harsh laws for harsh

times.  [See: Justice Pandian’s summary at page 712 at

para 368].

SYNOPTIC ANALYSIS OF POTA (REPEAL) 2004:

50. It takes time to give effect to section 321 of Cr.P.C.

even when both the public prosecutor and the Court have

to decide whether withdrawal is appropriate.  Under one

reading  of  the  statute,  withdrawal  occurs  on  the  spot.

Under  the  other,  it  is  to  languish  before  the  public

prosecutor.

51. If  the public prosecutor approves of the decision to

withdraw, then it is presented to the Special Court for a

final decision.  Inserting section 321 of Cr.P.C. itself into

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POTA (Repeal) 2004 defies logic and produces an absurd

result.  “The object of the construction of a statute being

to ascertain the will of the Legislature, it may be presumed

that neither injustice nor absurdity was intended.”  (Owen

Thomas  Mangin v.  Inland  Revenue  Commissioner,

[1971) 2 WLR 39, p. 42 (PC) (Lord Donovan), as referred in

Justice  G.P.  Singh’s  celebrated  book,  Principles  of

Statutory Interpretation, 11th Edition, 2008 at page 129.   

52. The  appellant  further  argued  that  requiring  two

withdrawals  disregards  Parliamentary  intent.   The

Statute’s Statement of Objects and Reasons expresses the

Parliament’s intent.  It reads as under:

“The provisions  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 At 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 The 23rd November, 2004.

[Emphasis added].”

53. This Bill became the POTA (Repeal) Act 2004, out of

which the instant case arises.   This statement gives us

guidance in two areas.   First, the allegations of misuse of

POTA  2002  were  directed  at  some  of  the  State

Governments.  This is relevant because it shows that the

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Parliament wanted a mechanism by which it could reverse

the  State  Governments’  alleged  misuse  of  POTA  2002.

Subjecting the Central Review Committee’s decision to the

will  of  the  State  Government’s  Public  Prosecutor,  as  is

done  when  section  321  of  Cr.P.C.  applies,  clearly  goes

against the very objective of POTA (Repeal) 2004.

54. It  is  reiterated  that  those  aggrieved  by  the  Review

Committee’s  decision  are  not  without  any  remedy,  they

can have recourse under Article 226 of the Constitution.

In this view of the matter, the basic principle of separation

of power is not violated.  No provisions of the Constitution

are violated by repealing the Act by the Parliament.    

55. I agree with the conclusions arrived at by Hon’ble the

Chief Justice.  The appeals are accordingly disposed of.  

 ...............................J.                                                    (Dalveer Bhandari) New Delhi; October 21, 2008

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