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Mahmadhusen Abdulrahim Kalota Shaikh (1) v. Union Of India And Others
Factual and Procedural Background
The appeals and special leave petition arise out of prosecutions originally launched under the Prevention of Terrorism Act, 2002 (POTA). After POTA was first amended by an Ordinance (27-10-2003) and later by the Prevention of Terrorism (Amendment) Act, 2003, it was fully repealed through the Prevention of Terrorism (Repeal) Act, 2004. The Repeal Act created Review Committees empowered to examine pending POTA cases.
The appellants are among approximately 87 accused persons who, according to the Review Committee, have no prima facie case against them. Their trials were stayed by the Supreme Court, resulting in about 5½ years of custody. In one connected matter (Criminal Appeal No. 359 of 2006), the trial was never stayed and is nearing conclusion.
Earlier High Court judgments on similar statutory provisions were considered, and one such judgment had already been dealt with by the Supreme Court in its order dated 8-3-2004 (2009) 2 SCC 1.
Legal Issues Presented
- Whether sub-section (3) of Section 2 of the Prevention of Terrorism (Repeal) Act, 2004 empowers a Review Committee to override Section 321 of the Code of Criminal Procedure, 1973, so that:
- cases in which cognizance has already been taken are deemed withdrawn, and
- investigations still in progress must be closed forthwith, upon a finding by the Review Committee that no prima facie case exists.
- Consequent procedural question: if such an overriding effect exists, does the Public Prosecutor’s consent and the trial court’s approval under Section 321 CrPC become unnecessary?
Arguments of the Parties
Appellants' Arguments
- Sub-section (3) of Section 2 of the Repeal Act expressly distinguishes between cases where cognizance has been taken and those still under investigation, and declares that both categories “shall be deemed to have been withdrawn” when the Review Committee so directs.
- This explicit deeming fiction removes any ambiguity that may have existed under earlier amendments, thereby displacing the procedure prescribed in Section 321 CrPC.
Respondents' (Union of India & State of Gujarat) Position
- Reliance on the Supreme Court’s earlier order dated 8-3-2004, which held that Review Committee directions remain “subject to Section 321 CrPC,” indicating that prosecutorial withdrawal still requires the Public Prosecutor’s motion and the trial court’s consent.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Supreme Court Order dated 8-3-2004 (2009) 2 SCC 1 | Review Committee decisions are binding on governments and investigating agencies but remain subject to Section 321 CrPC. | The present Bench noted this precedent as the existing judicial position, prompting referral of the matter to a larger Bench. |
Court's Reasoning and Analysis
The Court acknowledged that accepting the appellants’ construction of Section 2(3) of the Repeal Act would necessarily mean that Parliament intended to supersede the withdrawal procedure in Section 321 CrPC. However, because an earlier coordinate Bench had already observed that Review Committee directions are still subject to Section 321, the current Bench considered itself bound by judicial discipline to avoid overruling that view.
Given the statutory amendments and the potential conflict with Section 321 CrPC, the Bench concluded that the matter involves substantial questions of law meriting authoritative resolution by a larger Bench. It therefore refrained from deciding the merits and directed that the papers be placed before the Hon’ble Chief Justice for appropriate orders.
The Court also took note of the prolonged incarceration of 87 accused whose trials are stayed. To mitigate hardship, it granted liberty to those appellants to move for bail, which the Court will consider on merits after notice to the Union of India and the State of Gujarat.
In Criminal Appeal No. 359 of 2006, where the trial is continuing, the Court declined to halt proceedings but allowed the appellant to seek post-conviction relief, if any.
Holding and Implications
Reference to Larger Bench Ordered: The matters are to be placed before the Hon’ble Chief Justice for constitution of an appropriate larger Bench to decide the legal questions.
Implications: The core controversy—whether Review Committee recommendations automatically terminate POTA prosecutions—remains unresolved. Meanwhile, affected accused may apply for bail, but existing trials (where not stayed) will proceed. No new precedent on the substantive issue has been set at this stage.
Order
1. We have heard counsel for the parties.
2. The question that arises for consideration of this Court in these appeals and special leave petition is as to the effect of sub-section (3) of Section 2 of the Prevention of Terrorism (Repeal) Act, 2004. The Prevention of Terrorism Act, 2002 was amended by the Prevention of Terrorism Act (Amendment Ordinance), 2003 which incorporated in the Act sub-sections (4) to (7) in Section 60 thereof. The Ordinance was followed by the Prevention of Terrorism (Amendment) Act which came into force with effect from the date of the Ordinance, namely, 27-10-2003. The Prevention of Terrorism Act, 2002 has been repealed by the Prevention of Terrorism (Repeal) Act, 2004.
3. The question which arises for our consideration is whether the recommendation made by the Review Committee under sub-section (3) of Section 2 of the Repealing Act has the effect of overriding the provisions of Section 321 of the Code of Criminal Procedure and that, if the Review Committee is of the opinion that no prima facie case for proceeding against the accused exists, the cases in which cognizance has been taken by the court shall be deemed to have been withdrawn and cases in which investigations are pending, investigation shall be closed forthwith from the date of the issuance of the direction by such Review Committee.
4. 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 8-3-2004 (2009) 2 SCC 1. 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 directions given by the Review Committee could only be subject to Section 321 of the Code of Criminal Procedure.
5. We notice that by reason of amendment of the Prevention of Terrorism Act, the provisions introduced, namely, sub-sections (3) to (7) in Section 2 thereof 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 Section 4, then the proceeding pending against the accused shall be deemed to have been withdrawn from the date of such direction. Whereas the Amendment Act uses the words “the proceedings pending against the accused shall be deemed to have been withdrawn”, under the repeal Act sub-section (3) of Section 2 refers to two types of proceedings pending against the accused, namely, cases in which cognizance has been taken by the court and the cases which are at the stage of investigation. It is, therefore, submitted before us that whatever may have been the ambiguity in sub-section (5) of Section 2 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.
6. To accept the submission urged on behalf of the appellants, we must hold that the provisions of the Repeal Act relied upon by the appellants override the provisions of Section 321 of the Code of Criminal Procedure which provide 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.
7. 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 at Chennai, it would be appropriate if the matters be placed before a larger Bench for consideration.
8. We are informed that there are as many as 87 accused including the appellants who have been exonerated by the Review Committee and in respect of whom there are favourable reports given by the Review Committee to the effect that there is no case against them under the Prevention of Terrorism Act but they have remained in custody for about 5½ years since by an order of this Court their trial has been stayed. It is not known when the trial or the proceeding will come to an end.
9. In these circumstances, we permit the appellants before us to file an application for grant of bail after serving a copy thereof on the respondents, the Union of India and the State of Gujarat. We shall thereafter consider the bail applications on merit.
Criminal Appeal No. 359 of 2006
10. In this appeal, the trial has not been stayed by this Court and therefore, it is likely to conclude shortly. A prayer was made before us that the Court may not pronounce its judgment as against the appellant herein. Having regard to the fact that there are other accused who are being tried along with the appellant in whose favour there is no report by the Review Committee, it may be impracticable to stay the trial at this stage. However, in case the appellant is convicted, he may seek appropriate relief from this Court as against the order of conviction, including a prayer for quashing the order of conviction as against him.
11. Let these matters be placed before the Hon'ble Chief Justice for appropriate orders.
12. Liberty to mention for early hearing before the Hon'ble Chief Justice.
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