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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRL.M.P.NO.5643-5647 OF 2007 (@CRIMINAL APPEAL NO.1651-1652 OF 2008 )

ANUSUYABEN SADASHIV JADAV AND ANR.              Petitioner(s)

                     VERSUS

UNION OF INDIA AND ORS.                         Respondent(s)

WITH CRL.M.P.NO.4506/2007 @ CRL.A.NO.1113/2005, 5639 -5642, 5648- 49/2007, 5981-5986/2007, 8315/2007, AND  15724-15725/2008 IN CRL.A.NOS.1651-1652/2008

O R D E R

CRL.M.P.NOS.4506/2007  @  CRL.A.No.1113/2005,  CRL.  M.P.

NOS.5639, 5640, 5641 AND 5642 OF 2007 @ CRL.A.NOS.1651-1652/2008,

which  are  connected  cases,  are  also  taken  on  board,  at  the  request  of

learned counsel.

2. These are bail applications/applications for impleadment by the

accused petitioners filed in  POTA/criminal  cases pending on the files of

Special POTA Judge, Sabarmati, Ahmedabad and other courts in regard to

POTA  cases  registered  with  Godhra  police  station,  ,  Crime  Branch,

Ahmedabad City and Ellisbridge Police Station, Ahmedabad.    In some of

these cases, bail applications were rejected by the Special Judge and in some

cases the same were rejected by the High Court and in some other cases by

this Court.

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3. Subsequently the Prevention of Terrorism (Repeal) Act, 2004 (for

short 'the Repealing Act') was enacted. Certain provisions  of  the  said Act

were challenged.  This Court, by

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judgment dated 21.10.2008, upheld the validity of Section 2(3) and (5) of

the Repealing Act and also passed the following directions :

1. “the judgments under challenge to the extent they declare Section 2(3)

and (5) of the Repealing Act are not unconstitutional, are upheld;

2. the judgments under appeal are set aside to the extent they hold that

in  spite  of  deemed  withdrawal  of  the  cases,  the  procedure  under

Section 321 of the Code has to be followed for withdrawal;

3. the appeals filed by POTA accused are allowed in part  accordingly.

The  appeals  by  the  relatives  of  victims  are  disposed  of  reserving

liberty to challenge the opinions of the Review Committee, wherever

they are aggrieved;

4. We do not express any opinion on the merits of the cases of the POTA

accused  or  in  regard  to  the  opinions  expressed  by  the  Review

Committee.”

In the light of the said judgment, upholding the deemed withdrawal of cases

under POTA, the bail applications filed by the accused have to be considered

afresh.   In all these cases wherever the Review Committee has recorded its

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

the accused  are not to be tried under the provisions of the POTA.  However,

these  accused  have  also  been  charged  in  regard  to  several  non-POTA

offences and these offences will have  to be tried by regular Sessions Judges

(or CBI Court). By

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virtue of Section 33 of the POTA, the Sessions Judge has to proceed with

these cases as if he had taken cognisance of these offences.   

4. We,  therefore,  direct  the  POTA  Special  Judge,  Sabarmati,

Ahmedabad or other courts where the cases of applicants are pending  to

send all those cases to the respective Sessions Judge within a period of one

month of receipt of a copy of this order.   This is subject to the order, if any,

that may be passed by any competent court against the opinion of Central

POTA Review Committee.   

5. All  these  petitions/applications  for  bail/impleadment  are

permitted to be withdrawn with liberty to move for bail before the concerned

Sessions Court after the records are received on transfer.  In the event of

filing  such  applications,  the  Sessions  Judge  shall  consider  the  same  on

merits  untrammelled  by  the  observations,  if  any,  made  by  the  superior

courts in any bail application filed by these respective petitioners.

6. POTA Case  No.12  against  Crime  NO.6  of  2003 in  the  Crime

Branch, Ahmedabad city and POTA Case No.10 against Crime No.272/03 in

Ellisbridge  Police  Station,  C.B.I.COurt,  on  transfer  are  to  be  tried  by  the

Sessions Judge having jurisdiction.

7. Learned counsel for the petitioners submit that these petitioners

are under-trial prisoners since April, 2003.  The

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respective Sessions Judge will consider this fact and  dispose of the matters

as expeditiously as possible.   

...............CJI. (K.G. BALAKRISHNAN)

.................J.     (R.V. RAVEENDRAN)

.................J.     (DALVEER BHANDARI)

NEW DELHI; 1ST DECEMBER, 2008.