# ~ v. UNION OF INDIA & ORS

- **Citation:** [2008] 14 S.C.R. 889
- **Court:** Supreme Court of India
- **Decided:** 2008-10-21
- **Case number:** Criminal Appeal No. 1113 of 2005
- **Bench:** K.G. Balakrishnan, R.V. Raveendran, Dalveer Bhandari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/v-union-of-india-ors-23837
- **Pages:** 68

## Headnote

y
Prevention of Terrorism Act, 2002; s. 60(4) to (7)/Prevention of Terrorism (Repeal) Act, 2004; s.2(3) and (5):
c
Review of cases registered under POTA after repealing
of POTA- Power of Review Committee to issue directions for.,
withdrawal of cases in terms of s. 2(3) and (5) of the Repeal Act
- S. 2(3) and (5) of the Repeal Act- Constitutionality of- Held:
Since Repealing Act contains an exhaustive provision relatD
ing to saving in terms of s. 2(2) to (5) of the Repeal Act, savings from repeal would not be governed by the provisions un-
----
der s. 6 of General Clauses Act - Provisions in the Repealing
Act are for saving a proceeding pending under POTA or for
termination of pending proceeding are for winding up - ConE
tinuation of a pending proceeding after repeal of POTA is possible on account of deeming fiction created by saving clause
in Repealing Act - Tests applicable for deciding the constitutiona/ validity of live and current statutes, not applicable to
winding up provision in a savings clause of the Repealing Act F
- Repealing Act repeals POTA but provides for certain savings from repeal to meet special features of the repealed statute - It does not violate any constitutional provisions - Hence,
s. 2(3) and (5) of the Repealing Act are valid and constitutiona/- General Clauses Act, 1897- S. 6 - Constitution of G
India, 1950- Articles 14 and 21.
,-...\
S. 2(3) of POTA (Repeal) Act- Withdrawal of cases when
Review Committee opines that there was no prima facie case
889
H
890
SUPREME COURT REPORTS
[2008] 14 S.C.R.
A
exist~- Applicability of s.321 Cr.P. C- Held: s.2(3) of theRe~
pealtng Act, special provisions, excludes applicability of s. 321
CPC, a general provision - If s. 321 Cr. PC. is held to be applicable then s. 2(3) of Repeal Act rendered nugatory and cases
cannot be withdrawn until requirements of s. 321 Cr P. C. are
8
not complied with -It would amount to re-writing of s. 2(3 ), which
is impermissible. ·
· ·
· ·
c
D
5.60(4) to (7) of POTA vis-a-vis 5.2(3) of Repealing ActReview Committee - Power of, in recommending withdrawm
of cases registered under POTA- Discussed.
Constitution of India, 1950; Articles 32 and 226:
Supreme Court/High Court- Power of Judicial ReviewScope of- Discussed, in the context of s.2(3) to (5) of POTA
(Repeal) Act, 2004.
Separation of Powers and Judicial Re\1iew- Basic structure of the Constitution- Held: Not violated by provisions under POTA (Repeal) Act.
In the year 2002, the Prevention of Terrorism Act was
E
enacted. Section GO of the Act provided for constitution
of Review Committees to discharge the functions specified in Ss. 19(4), 40 and 46 of the Act. The Act was amended
on 27.10.2003 introducing sub-sections (4) to (6) in section 60 of the Act in terms whereof certain additional funcF
tion were entrusted to the Review Committees. The Act
was further amended inserting sub-section (7) in Section
60 with retrospective effect from 27-10-2003. The effect of
the amendment was to make any direction issued by the
Review Committee on review, about the existence of
G
prima facie case for proceeding against the accused un·
der POTA, binding on the Central Government as well as
State Government and the police officer investigating the
offence. Parliament repealed POTA in the year 2004 by
Prevention of Terrorism (Repeal) Act, 2004. The provisi~ns
of sub-sections (3) and (5) of section 2 of the Repealmg
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Act were challenged before the',High,:Court of Gujarat, by· A·
the relatives: of the p~rsons killed in· G.o.dhara ·train b·urri.:.
ing incident. By judgment dated 13~4.2005, the High Court
upheld the. constitutional validity ·.of these provisions ·of
the· Repealing-.Act..-The High: Court wa·s of the

## Text

_Characters 0–39,982 of 142,936. This is a partial read: ask again with offset=39982 for what follows._

[2008] 14 S.C.R. 889
MAHMADHUSEN ABDULRAHIM KALOTA SHAIKH
A
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v.
UNION OF INDIA & ORS.
(Criminal Appeal No. 1113 of 2005)
OCTOBER 21, 2008
B
[K.G. BALAKRISHNAN, CJI., R.V. RAVEENDRAN AND
DALVEER BHANDARI, JJ.]
y
Prevention of Terrorism Act, 2002; s. 60(4) to (7)/Prevention of Terrorism (Repeal) Act, 2004; s.2(3) and (5):
c
Review of cases registered under POTA after repealing
of POTA- Power of Review Committee to issue directions for.,
withdrawal of cases in terms of s. 2(3) and (5) of the Repeal Act
- S. 2(3) and (5) of the Repeal Act- Constitutionality of- Held:
Since Repealing Act contains an exhaustive provision relatD
ing to saving in terms of s. 2(2) to (5) of the Repeal Act, savings from repeal would not be governed by the provisions un-
----
der s. 6 of General Clauses Act - Provisions in the Repealing
Act are for saving a proceeding pending under POTA or for
termination of pending proceeding are for winding up - ConE
tinuation of a pending proceeding after repeal of POTA is possible on account of deeming fiction created by saving clause
in Repealing Act - Tests applicable for deciding the constitutiona/ validity of live and current statutes, not applicable to
winding up provision in a savings clause of the Repealing Act F
- Repealing Act repeals POTA but provides for certain savings from repeal to meet special features of the repealed statute - It does not violate any constitutional provisions - Hence,
s. 2(3) and (5) of the Repealing Act are valid and constitutiona/- General Clauses Act, 1897- S. 6 - Constitution of G
India, 1950- Articles 14 and 21.
,-...\
S. 2(3) of POTA (Repeal) Act- Withdrawal of cases when
Review Committee opines that there was no prima facie case
889
H
890
SUPREME COURT REPORTS
[2008] 14 S.C.R.
A
exist~- Applicability of s.321 Cr.P. C- Held: s.2(3) of theRe~
pealtng Act, special provisions, excludes applicability of s. 321
CPC, a general provision - If s. 321 Cr. PC. is held to be applicable then s. 2(3) of Repeal Act rendered nugatory and cases
cannot be withdrawn until requirements of s. 321 Cr P. C. are
8
not complied with -It would amount to re-writing of s. 2(3 ), which
is impermissible. ·
· ·
· ·
c
D
5.60(4) to (7) of POTA vis-a-vis 5.2(3) of Repealing ActReview Committee - Power of, in recommending withdrawm
of cases registered under POTA- Discussed.
Constitution of India, 1950; Articles 32 and 226:
Supreme Court/High Court- Power of Judicial ReviewScope of- Discussed, in the context of s.2(3) to (5) of POTA
(Repeal) Act, 2004.
Separation of Powers and Judicial Re\1iew- Basic structure of the Constitution- Held: Not violated by provisions under POTA (Repeal) Act.
In the year 2002, the Prevention of Terrorism Act was
E
enacted. Section GO of the Act provided for constitution
of Review Committees to discharge the functions specified in Ss. 19(4), 40 and 46 of the Act. The Act was amended
on 27.10.2003 introducing sub-sections (4) to (6) in section 60 of the Act in terms whereof certain additional funcF
tion were entrusted to the Review Committees. The Act
was further amended inserting sub-section (7) in Section
60 with retrospective effect from 27-10-2003. The effect of
the amendment was to make any direction issued by the
Review Committee on review, about the existence of
G
prima facie case for proceeding against the accused un·
der POTA, binding on the Central Government as well as
State Government and the police officer investigating the
offence. Parliament repealed POTA in the year 2004 by
Prevention of Terrorism (Repeal) Act, 2004. The provisi~ns
of sub-sections (3) and (5) of section 2 of the Repealmg
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UNION OF INDIA & ORS .
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Act were challenged before the',High,:Court of Gujarat, by· A·
the relatives: of the p~rsons killed in· G.o.dhara ·train b·urri.:.
ing incident. By judgment dated 13~4.2005, the High Court
upheld the. constitutional validity ·.of these provisions ·of
the· Repealing-.Act..-The High: Court wa·s of the view· that
the provisions of section 2(3); of the Repealing·Act were~ B ·
similar to the provisions of.sec.tion.60(4) to (7) .oiPbTA~ if
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held that·section· 2(3) of the; Repealing,.Act did not dis~.----
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pense with. the. procedural: requirements, un~e~. ~.e.~t.iC?.n
321 of the,Code;. and where the Review _Committee, in re-
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g~rd·to~any:ca~e~where cognizance,had .~e~f1 ta~~!l"~y c;
the court~·held that there was no. prima facie case .for pro-- ----
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ceeding against the accused. unde,r) t~e
A pr.o~~s_i~~~ ·of
POTA, such i opinion of the. Review Committee will not
have the effect ·of deemed withdrawal oftt1e' c~se from
the· court,·: until ·the. procedure prescribed -in- sectio~ 321 D .
of the Code was complied with. The decisio~ of the Gujarat
;High Court was ·challenged by th·e relatiy~s. ~~ t~.e. person~
.· killed in Godhra ~Train. burning incident_ and also by ~0~~.
accused .by filing: appeals;before:this:_Court. A Division
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Bench of this _Court referred the matter to a larger Be~ch_. E
Hence the-matters are before this Bench. ,
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Appellants, relatives of victim,· inter alia, contended
)flat: section 2(3) & (5)_ of Repealing Act_ ought to ~e de-
. ,.clared as unconstitutional on the ground that they amount
,-,to encroachment on the. judicial power of the State; th-at F
- ~once: the, Special Judge too.k cognizance of the. offence, -
- Jhe· proceedings could: be wit!Jdrawn. only _after c'omplying _wit~ the procedural :requirements _under Section 321
-lof:the·.Code; that the Review Committe_~ ~eing· Pllrel~ ·a
:committee appointed by-the .executive, has no. right to
, determine the innocence or other-Wise of an accusedi a·n·d G
that merely because the Chairman of the .Review,C.om-
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mittee is a retired Judge, the Committee does not become
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a judicial authority; that the Committee'c-o·ufd only be char-
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-actenzed as an external body and such ·a· Commlttee!canH
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892
SUPREME COURT REPORTS
[2008] 14 S.C.R.
A not be a clothed with a judicial power to withdraw the
pending cases from the Court.
POTA accused, appellants in the connected appeal,
inter alia, contended that the provisions of section 2(3) :of
the Repealing Act are materially different from the proviB sions under Section 60(4) to (7) of POTA. Under Section
2(3) of the Repealing Act, the opinion of the Review Committee is final and conclusive; that the clear legislative
intent is that after the Repeal of POTA, continuance of any
proceedings initiated under POTA in which cognizance
C 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 proceed-.
ings against the accused, the case shaH be deemed to
0
have been withdrawn with effect from the date of issuance of the direction by such Review Committee; and 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 prosE ecution, nor any need or occasion for the Court to consider whether consent was giyen for such withdrawal from
the prosecution.
. On behalf of the State of Gujarat, it was contended
that the High Court had rightly held that sub-section (3)
F of section 2 of the Repealing Act does not d.ispense 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
G have to independently consider such application and
come to a conclusion whether it should consent to the
prosec.utio·n being withdrawn or n'6t.·
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1 .• ; .; • The Additional S.olicitor Gene~~i, .o.n behal·f o:f.
~~e respondents-Uni;on of India, submitted that the power exH
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MAHMADHUSEN ABDULRAHIM KALOTA SHAIKH v.
893
UNION OF INDIA & ORS.
ercised by the Review Committee under section 2(3) of A
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; and that there are adequate safeguards against any misuse or abuse of power by theReB
view Committee under section 2(3).
Partly allowing the appeals filed by POTA accused
and disposing of the appeals filed by the relatives of the
victims, the Court
HELD:
Per K.G. Balakrishna, CJI, for himself and R.V.
Raveendran, J:
c
1. The following well settled principles of law have 0
been kept in view while determining the constitutional
validity of section 2(3) and (5) of the Prevention of Terrorism (Repeal) Act :
(i) Parliament has the exclusive competence to
legislate on terrorism and terrorist and disruptive activities E .
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 F
Seventh Schedule
Kartar Singh v: State of Punjab - 1994 (3) SCC 569 -
relied on.
(ii) There is always a presumption in favour of the G
· 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.
State of Jammu & Kashmir vs. Tri/oki Nath Kosha - 197 4
(1) SCC 19- relied on.
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894
SUPREME COURT "REPORTS
[2008] 14 S,C.R.
.. · . .
(iii) A Jaw made by the Parliamenfcan be struck down
by courts on two grounds and two grounds alone, i.e. (1)
lack of legislative competence; and (2) violation of fundamental _rights guaranteed under . Part-111 of the Constitu-:-. ·
tion or any other con~titutiona·l provisi()n.
B
State of Andhra Pradesh vs. Mcdowell & Cb: ~ 1996 (3i
sec 709 - relied on.
(iv) The pow~r of the Parliament to repeal a law is co-
. ~
extensive with the power to enact such a law.
c
Principles of Statutory Interpretation- t1th Edition, P.633
D
by Justice G.P. Singh - referred to.
(v) The Legislature may prescribe special procedure
to meet special situations and to meet special objectives
so long as they are not arbitrary or discriminatory.
.
•.
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Kathi Raning Rawat v. The State of Saurashtra ~ ·1952 .
SCR 435 and In Re: The Special Courts Bill) 1978-1979 (1)
sec 380 - relied on.
.
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(vi) If any Central Act is repealed,.without making any · .
E provision for savings, the provisions contained in sec• .
tion 6 of General Clauses Act, 1897 will apply.· But where
the 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~ wf1en a different inten-
· F
tion appears in the Repealing Statute. Where the provision relating to savings is excluded; the rep.eal will have
the effect of complete obliteration of the statute.
·
[924-A-E; 924-G; 924-H;. 9~5-A; 925-8-D]
G
State of Orissa v. M.A. Tullock & Co. - 1964 (4) SCR461,
Nar Bahadur Bhandari v. State ofSikkirn - 1998 (5) SCC 39
and Southern Petrochemicals Industries Co. Ltd. v. Electricity Inspector- 2007 (5) SGC 447 .... relied on. [Para - 22]
2.1 The Prevention of Terrorism (Repeal) Act contains
H an exhaustive provision relating to savings in sub-sec- --··.
MAHMADHUSEN ABDULRAHIM KALOTA SHAIKH v.
895
UNION OF INDIA & ORS.
tions (2) to (5) of section 2. Therefore the savings from A
repeal will be governed by the provisions under section
2(2) to 2(5) of the Repealing Act and not by section 6 of
the General Clauses Act, 1897. [Para -23] [925-E]
2.2 co·ntinuation of a pending proceeding is possible .
only on account of the deeming fiction created by the 8
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
p~ovision for termination of such pending proceedings, C
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 D
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 constitur= ·
. tional validity of live and current statutes, may not apply
to 'winding up' provisions in a savings clause of a Repealing Act, dealing with repeal. [Para - 24] [926-D-G]
2.3 The Parliament in its plenary power, can make an
outright repeal which will not only destroy the effectiveF
ness of the repealed Act in future, but also operate to destroy all existing inchoate rights and pending proceedings. This is because the effect of repealing a statute is to
obliterate it completely from the record, except to the extent of savings. The Parliament has the legislative comG
petence 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) H .
896
SUPREME COURT REPORTS
A
thereof are valid and constitutional.
[Para - 24] [925-F-G; 926-G-H; 927 -A]
[2008] 14 S.C.R.
3.1 Sub-section (2) of section 2 of the Repealing Act
makes it clear that the repeal of POTA will not affect any
8
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.
[Para - 25] [927 -B]
c
3.2 Section 2(3) of the Repealing Act does not contemplate or 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
on review of the pending cases when the Review ComO mittee opines that there is no prima facie case for proceeding against the accused, such cases, even though
cognizance has been taken by the_ c9urt, shall be deemed
to have been withdrawn without anything further to be
done. In view of expression of ~uch clear legislative inE tent in section 2(3) of the Repealing Act, there is no question of bringing section 321 of the Code into play. [Para25] [927 -H; 928-A-B]
3.3 If section 321 of the Code ~.iS held to be applicable,
then the provision in section 2(3) that the cases shall be
F
deemed to be withdrawn, is rend~red ·nugatory and the
cases are not actually withdrawn ~until the requirements
of section 321 are complied with:· Jhat would amount to
rewriting section 2(3) of the Repe~l Act, which is clearly
impermissible. The High Court proceeded on the basis
G that section 2(3) of the repealing -Act is similar to section
60(4) to (7) of POTA, and it should be interpreted and dealt
with in the same manner as section 60(4) to (7) of POT A. It
upheld the validity of section 2(3) qf the Rep.ealing Act sub-
. ject, to ,a rider that even where _·Review C~01mittee · has
. opined ·under section 2(3) of the said Actthat there was
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MAHMADHUSEN ABDULRAHIM KALOTA SHAIKH v.
897
UNION OF INDIA & ORS.
no prima facie case, the deemed withdrawal will be subA
ject 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 [Paras- 25 & 26] [928-C-D; 8
928-F-H]
The Government of Tamil Nadu & Others v. Union of India & Another 2004 (1) CTC 641 -referred to.
3.4 The scheme under section 2(3) of the Repealing
Act is categorical. The review by the Review Committee C
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 whi.ch were
pending at the time of repeal, irrespective of whether an
application for review was made by the accused or not. D
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, E
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. Section 2(3) of the Repealing Act also contains clear indications which exclude
section 321 of the Code. [Paras -28 & 29] · [930-A-D; 930Fl
G]
3.5 The wording of s.2(3) of the Repealing Act is clear
and unambiguous and does not cont~mplate or provide
for a further application of mind by the Public Prosecutor
or grant of consent by the court under section 321 of the G
Code. This Court is of the view that the High Court was
not rightin assuming that the decision Qf the Madras High
Court in the matter of The Government of Tamil Nadu & Ors.
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. v~ .. Uni9n of India & Anr. as approved by this Court with ·
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. reference to section 60(4) to (7)' of POTA will apply in reH
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[2008] 14 S.C.R. ·
·A · ·g~ud to section.2(3)of the Repealing-Act. '[Para.:.. 29] [931 .. ·
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.8-C]
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· The ·Gove.inment of Tamil Nadu & Ors. vs. · Union of ln-
.·dia & Anr. (2004)1. CTC 641 -referred to.
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- ·4.1' Tt)e Opinions of the 'Review_·committee under.
section 2(3) ~of the Repealing Act a·re. limited in number.
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· and _are required:to be given as a o·ne time measure with ·
reference to a repealed statute. The availability of judicial . . X.:
·review .under ArtiCle 226 ·in the event of errors and abuse,
C is a sufficient safeguard·and deterrent against any wrong ·
· doing ·by the Review· Committee. [Para ;__ ·31] [932-C-D] ·
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. SheohahdanPaswan v State of Bihar (1987) 1 S~C 288
- relied oh~
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· 4.2 ·once the ~eview Committee on review under
D section 2(3) ()fthe ·Repealing Act, expresses the opinion
that there is no prima fa.cie case for. proceeding against ·
·the. accused; in . c~ses in which c·ognizance has -bee-n ·
taken -by the Court, such ··cases shall be deemed to have
been withdrawii·The· .only role of the Public Prosecutor
.E
in the rrlatte(·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 th_e case stands withdrawn by virtue .
of section 2(3) ofthe Repea·ling Act. The court will not ex-·
F
amine the correctness .or ·propriety of the opinion ·nor ex-
'ercise ·any supervisory ju-risdiction in regard to such a
·opinion of the Revie_w Committee. [Para - 32.] [932-D~F] ·
.
.
.
· .4.-3 .If is. clarified·that if the opinion of the Review Com:-
mittee· is ch~llenged ·by any aggrieved party in writ pro-
. G ·ceedings.and is set aside; the Court where the proceed- .
·in_gs were .pending, will continue with the case as if there .
had been no ~uch opinion. [Para - 32] [932-G]
· 5.1 Thejudgments under challenge to the extent they
:1( . .
._ declare section 2(3) and (5) of the Repealing Act are not ·
H -·unconstitutional, are u-pheld. However, the judgments . . ·. ·
- MAHMADHUSEN ABDULRAHIM KALOTA SHAIKH v..
B99 ·.
UNION OF INDIA & ORS ..
'\.-_· rr. · · holding that in spite of deemed withdrawal' of the cases, . A·
. the procedure under se.ction 321. _of the Code has to be· .
followed for withd·rawal," are set aside. AppeUants, "relatives
. of. victim, are .afliberty to- challenge the opin.ions of the '. ·
Review Committee, wherever they· are-aggrieved. [Para~ - .·. -
33] [933~A-C] .
. B ·. . -
.
.
/
5.2 This. Court has not expressed-any .opinion on the· .
. merits· of the Ca$eS ofthe POTA accused-or. in regard to
· the· opinions· expressed by. the. Review ·committee. [Para
- 33] [933-D]. .
c
Per Dalveer Bhandari, J~(Co_ncurring):, ·: ·
1.1 In the ·impugned judgme:nt; the · High Court :of
Gujarat was dealing wit.h a question under. POTA (Repeal) · . · .
2004 a_nd hot under POTA 2002, it s_ought to find language
that was pari materia to both statutes .. The High Court. rea:-
0
so ned that section· 2(3) of POTA (Repeal) -2004 is pari rna-
-/ .. feria with section· 60(7)· read with section-60(4)· of POTA. . .
2002. [Paras-~. 4 ~ 5] [934-G; 935-A}
.
The Government of Tamil NadtJ &--Others v.· Union of India & Anot~er 2004 (1.) CTC. 641 .... referred to~
E
1.21t seems that the· High Court correctly down played
the .difference between· the Review Committee's having .. ·
to· receive an -application before taking· action· and the
_. · Review Coriurlitte·e?s having to take. action immediately and . F· ·
J. · · review a// pending .cases~ [Para- 7] [936-E]
1.3 If section· 321· of Cr.P.C. itself· cannot apply, the
. . · issue. co~es for consideration is whetheror not POTA .(Re-
.pec:-1) 2004 encroaches on t_he jurisdiction and powers· of
.
· . · . the: Courts is clearly violative of the concept of the-sepa- G:
. A
.. ra-tion ·of powers. [Para - 81 [936~Fl ·
.
2.1 Section 321' of Cr.P.C. is· a. codified version of ju-
. dicla.l r~view. At the .t~ial c-ourt level, · .sectio~ 321 of Gr.P.C.
·ensuresth~t the judiciary~ makes the final decision by ap- · H
900
SUPREME COURT REPORTS
[2008] 14 S.C. R.
A
proving the public prosecutor's decision to withdraw a
case. Even if section 321 of Cr.P.C. is made inapplicable
~--4/"
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. [Para
8
- 13] [939-C-D]
2.2 A violation of judicial review is another way of
saying that the separation of powers between the princi- "
pal three organs of the State have been violated. Judicial
review forms part of the basic structure of the Constituc tion. Because POTA (Repeal) 2004 has not removed judicia I review under Article 226 or Article 136, the basic structure has not been destroyed. [Para- 14] [939-E-F]
2.3 The Courts' powers to grant consent to a
D prosecutor's request to withdraw exist 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. [Para - 15] [939-G]
'- -
2.4 Resolving legal disputes is the core .function of
E 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.
F (Para- 15] [940-A-B]
State of Bihar v. Ram Naresh Pandy & Another AIR 1957
SC 389 and Sheonandan Paswan v. State of Bihar (1987) 1
sec 288- referred to.
G
3.1 The separation of powers is part of the basic structure. This has been well established in a plethora of cases.
However, our Constitution does not envisage a strict sepa-
~
ration of powers. There is separation by necessary implication. [Para- 19 & 20] [941-F; 942-C]
H
His Holiness Kesavananda Bharati Sripadagalvaru v.
MAHMADHUSEN ABDULRAHIM KALOTA SHAIKH v.
901
UNION OF INDIA & ORS.
\. ..
,.lr
State of Kerala & Another (1973) 4 SCC 225; S. R. Bommai & A
........ .
Others v. Union of India & Others (1994) 3 SCC 1; State of
Bihar & Another v. Bat Mukund Sah & Others (2000) 4 SCC
640; 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 B
(1980) 3 SCC 625; Sub-Committee on Judicial Accountability v. Union of India & Others (1991) 4 SCC 699; I. Manila/
,
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 c
of 2002, In re (Gujarat Assembly Election matter), (2002) 8
'
SCC 237; Pratap Singh v. State of Jharkhand & Another (2005)
3 SCC 551; Rameshwat 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. D
Hon'b/e Speaker, Lok Sabha & Others (2007) 3 SCC 184; in
Re Delhi Laws Act, 1912, Ajmer-Merwara (Extension of Laws)
~ Act, 1947 v. Part 'C' States (Laws) Act, 1950 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 E
Dalmia & Others v. Justice S. R. Tendolkar & Others AIR 1958
SC 538 - relied on.
3.2 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. F
Where judicial review is curbed or outrightly removed, the
Court may review the constitutional validity of such an
action. [Para- 22] [942-G)
..
3.3 This Court in Indira Nehru Gandhi's case declared
that separation of powers and judicial review (by necesG
sary implication) are part of the basic structure of the Con-
,--\
stitution. [Para - 25] [943-E]
Indira Nehru Gandhi v. Raj Narain, 1975 (Suppl) SCC 1
-relied on.
.. . -·-{
H
. \
902
SUPREME COURT REPORTS
[2008114 S.C.R.
i
A
. 3.4 The question regarding competence of the Re·
~--'
view Committee loses some relevance when it is consid·
ered that the aggrieved party could still file an appeal
a·gainst such a decision. Nevertheless, the Review Com·
mittee is an .executive body that is making a judicial deciB sion. [Para - 28] [945-D-E]
3.5 The Executive appoints the Review Committee. '
A majority of its·members belong to the Executive Branch.
Under POTA (Repeal) 2004, the Executive's Review Com·
~
c
mittee has the power to decide cases. Thus, judicial review has been implicated. Given that judicial review forms
part of the ba$ic.structure, it is the job of the Court to determine if POTA (Repeal) 2004 has gone too far. ,[P~ra -
29] [945-F] .
" r
D
3.61n Minerva Mills case, this Court held that Section ·
~
55 of the 42"d Amendment was beyond ttle amending
power and was void since it removes all limitations on
~
the power of Parliament to amend the Co.ilstitution and
confers powers upon it to amend the Constitution so as
E · to damage or destroy its basic or essential features or its
basic structure. [Para- 36] [948-8-C] · ·
Minerva Mills Ltd. & Others v. Union of India & Others ·
(1980) 3 sec 625- relied on.
· 3. 7 In the case of L. Chandra Kumar v .. Union of India
F
(1997) 3 SCC 261, this Court held that judicial review, un-
~ ..
der Articles 226 and 227 in the High Courts and under Ar·
~
ticle 32 in the Supreme Court respectively is an essential
. feature of the Constitution and forms part of the basic
r
structure. Thus, it is inviolable. [Para - 38] [949-0]
G
L Chandra Kumar VS. Union of India (1997) 3 sec 261
-relied on.
r.
3.8 If a law abrogates or abridges a fundamental right
. (by amendment or byinsertion in the gth Schedule), the Court
H may exercise its judicial review power and examine it on
.\
MAHMADHUSEN ABDULRAHIM KALOTA SHAIKH v.
903
UNION OF INDIA & ORS.
the touchstone of the basic structure doctrine as reflected A
in Article 21 read with Articfes 14 and 9 by application of
the "rights" and "essence of the right" tests. [Para-40]
f950·A~B]
I.R. Coelho (Dead) py LRs v. State of Tamil Nadu (2007)
2 sec 1- followed.
8
3.9 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 C
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. [Para- 41] [950-DD
E]
3.10 Those who are aggrieved by the Review
Committee's decision to withdraw still have judicial recourse under Article 226 of the Constitution. Hence, it
cannot be said that the aggrieved parties are without a E
remedy. [Para - 42] (950-G]
.
3.11 POTA (Repeal) 2004 do not strip the higher judic~ary of judicial review. As such, POTA (Repeal) 2004 surv•ves. A violation of separation of powers need not rise to F
such a level before this Court will consider it an abrogation of the basic structure. [Para- 43] [951-B] ·
4.1 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 interpretation. What is more, G
the CrPC itself allows the Parliament to deviate from the
Cr.P.c. When necessary. [Paras-46] [951-H; 952-A-8]
17
Harbans Singh & ·Others v. The State, AIR 1953 (All.)
9 and Kripa Ram & Others v. Ram Asrey AIR 1951 (All.)
414- relied on.
H
!
,~
904
SUPREME COURT REPORTS
[2008] 14 S.C.R.
A
4.2 The statement of Object and Reasons of POTA
(Repeal) Act, 2004 gives guidance in two areas. First, the
allegations of misuse of POTA were directed at some of
f '
~·
the State Governments. This is relevant because it shows
..-
that the Parliament wanted a mechanism by which it could
B
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 ~he very objective of POTA (Repeal) 2004.
c [Para- 53] [955-G-H; 956-A]
4.3 No provisions of the Constitution are violated by
~
repealing the Act by the Parliament. [Para - 54] [956-B]
CASE LAW REFERENCE
0
1996 (3) sec 709
Relied on
Para- 22
:;
1952 SCR 435
Relied on
Para- 22
1979 (1) sec 380
Relied on
Para- 22
1964 (4) SCR 461
Relied on
Para- 22
... ,_
E
. ....._ __ .-
1998 (5) sec 39
Relied on
Para- 22
1
~
I
2001 (5) sec 447
Relied on
Para- 22
2004 (1) CTC 641
Referred to
Para- 2
AIR 1957 SC 389
Referred to
Para -16
F
(1987) 1. sec 2sa
Relied on
Para -18
' I
~
(1973) 4 sec 225
Relied on
Para -18
' ..
.....
(1994) 3 sec 1
Relied on
Para -19
"""-
G
{2ooo) 4 sec 640
Relied on
Para -19
(2007) 2 sec 1
Relied on
Para -19
1975 (Suppl) sec 1
Relied on
Para -19
{1980) 3 sec 625
Relied on
Para -19
>-
H
(1991 > 4 sec 699
Relied on
Para -19
i
'
. , MAHMADHUSEN ABDULRAHIM KALOTA SHAIKH v.
905
I
UNION OF INDIA & ORS.
l I
: ·1994 supp. (1 > sec 718
Relied on
Para -19 A
I
·' (2002) s sec 294
Relied on
· Para-19
(2002) s sec 237
Relied on
Para~ 19
(2005) 3 sec ss1 .
Relied on
Para -19
(2006) 2 sec 1
Relied on
Para -19 8
-
(2006) 7 sec 1
Relied on
Para~ 19
(2007) 3 sec 184
Relied on
Para -19
AIR 1951 se 332
Relied on
.Para -21
AIR 1955 SC 549:
Relied on
Para- 21 c
(1955) 2 SCR 225
AIR 1958 se 538
Relied on
Para- 21
(1997) 3 sec 261
Relied on
· Para- 37 D
~
(2007) 2 sec 1
Followed
Para -19
AIR 1953 (AlL) 179 .
Relied on
Para- 47
AIR 1951 (All.) 414
Relied on
Para- 48
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal E
No.1113 of 2005
•
From the final Order and Judgment dated 13.'4.2005 of
the High Court of Gujarat at Ahmedabad in Speical Civil Application No. 1105 of 2005
F
•
Willi
734 Criminal Appeal Nos. 1498-1500 of 2005, 359 of 2006,
• 735 & 736 of 2007 and of 2008
Sh Vikas Singh, A.S.G., B. Datta, A.S.G., Colin Gonsal_ves, G
Sh~am Dewan, V.A. Mohta, LN. Rao, Sushi! Kumar, Arun ~a1t~ly ..
• Age khar Na~hade, Dr. Rajeev Dhawan, Jyer, Vipin M. Benjam~n,
,.
She~cy Sa1J, Jyoti Mendiratta, Nikhil. Goef, ~osrook Jay1~.
s.v Ia Gael. Meenakshi Arora, Sush1l Karanjakar, K:N. Ra!·
. · Deshpande, Aniruddh P. Mayee, Yogesh Yagn1k, Amlt H
906
SUPREME COURT REPORTS
[2008] 14 S.C.R.
A
Yadav, Pramit Saxena, Sanjeev Chaudhary, Neelkant Nayak,
-~-
Syed Marsook Bafaki, Hemantika Wahi, Umesh Trivedi, Jesal,
"'·
Pinky, Sangeeta Singh, Binu Tamta, Sandhya Goswami, B.K.
Prasad, Sushma Suri, Ravindra Keshvrao Adsure, Kamini
Jaiswal, K.J. John & Co. for the Appearing Parties.
B
The Judgments of the Court were delivered by
K.G. BALAKRISHNAN, CJI. 1. Leave granted in SLP
~
(Crl.) No.3015-3016/2005. The appellants in these two appeals
are the kith and kin of some persons kiHed in the Godhra Train
c 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'.
D
2. The appellants in Criminal Appeal Nos.1113/200fS,
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 chalE
lenged 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 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'.
F
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
G aggrieved by the direction to read section 2(3) subject to section 321 of Code of Criminal Procedure, 1973. To appreciate
t
.>:--
the rival contentions, the reasons that led to enactment of the
Prevention of Terrorism Act, 2002 and its repeal, require to be
noted.
H
MAHMADHUSEN ABDULRAHIM KALOTA SHAIKH v.
907
UNION OF INDIA & ORS.
.....
~
4. To meet the challenge of terrorists indulging in wanton
A~
'-
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 Parliament in the year 1985. There was widespread criticism that
TADA contained some draconian provisions.
B
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 re- c
lating 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 ofT ADA, this Court observed D
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 E
that the Central Government should take note of those guidelines by incorporating them in TADA and the rules framed thereunder by 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 F
>-
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 G
~
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 H
908
SUPREME COURT REPORTS
[2008] 14 S.C.R.
A
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
s
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.·
C
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 reD
placing the Prevention of Terrorism (Second) Ordinance, 2001.
E
F
G
H
Section 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
appo.intment of a person who is a Judge of the High Court
MAHMADHUSEN ABDULRAHIM KALOTA SHAIKH v. . 909
.R) (;.:.. ) :.-:::--· ·.-·:
UNION OF INDIA & ORS~"- ' I ,..;t_,
'·
-
of a State shall be made i as . a . Cha irp~rson· with the A
<h·2' ~ concui-rence o~_t~e Chief'Justice of the con~erned High
~~ :.~~ ~~~:~~:· ~; ~· ·:', :~· ,.; ·~ c ~-· ' ' . .':-... . · ··~ ~ :-._ .. : :·. ·>~ ·; ..
~ : ·.~: ·:.;:; ;:. :·~ ··-~
=~
c,t1 --· - ·
.
tJiilti' 7~ ; POTA was amended by the Preventi~n· of Terrorism
.{Amendment) Ordinance, 2003, promurgated on 27 .. ~0~ 2003 .
8
sy the said ordinance sub-sections (4) to (6) Were ·added in
section 60 of POTA entrusting an additjonal function to theRe-
'view Committees.· The said Ordinance.· was .. replace·d by the
·preven~ion of Terrorism (Amendment) Act 2003 (Act~ of:2004)
'which inserted sub-sections (4} to (6) as also further;s·ub=sec:-
tiori (7) ·in Section, 60 with retrospective effect from. 27 ~ 10-2003:. C
The sub-sections (4) to (7) of section 60 read as" under·: -
.. -
• r •
....
~-
-
)
'
;
•'
'
#•'
~ '"'\
'•
•
.,• ! '.
'• ·,,
• '
'"' '
•
·• .,.
•
•
·, • --:;
.~"". : '·
I
: ;,
J
' 'i"(4) Without prejudice to the other provisions of this Act,
: ... :.·.any ~eview Committee constituted under su6-Section (1}
. ..