High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 23.01.2007Coram:The Honourable Mr.A.P.SHAH, CHIEF JUSTICEandThe Honourable Mr.Justice K.CHANDRUW.A.No.1624 of 2006andM.P.No.1 of 2006-----------E.Shahul Hameed…. Appellant/Petitioner Vs.State of Tamil NaduRep. by its Chief Secretary,Fort St.George,Chennai – 600 009.…. Respondent/RespondentWrit Appeal filed under Clause 15 of the Letters Patentagainst the order passed in W.P.No.3466 of 2006 dated 6.12.2006.For Appellant:::: Mr.R.SankarasubbuFor Respondent:::: Mr.Raja Kalifulla Government Pleader assisted by Mr.V.R.Thangavelu, Government AdvocateJ U D G M E N T(The Judgment of the Court was delivered by Hon’ble The ChiefJustice)Admit. The learned Government Pleader waives service for therespondent-State.2. By consent, the writ appeal is taken up for hearing.3. The appellant is the original writ petitioner. He has filedthe writ petition seeking a direction to the respondent-State ofTamil Nadu to consider his representation dated 2.1.2006 for https://hcservices.ecourts.gov.in/hcservices/ reviewing his case in C.C. No. 1 of 1997 pending on the file of theDesignated Court, Tirunelveli by a Review Committee/ScreeningCommittee in the light of the decision of the Supreme Court inKartar Singh v. State of Punjab (1994 (3) SCC 569). The appellant isfacing trial for the offences under Sections 120(B) and 302 of IPC,and also for the offences under the Terrorist and DisruptiveActivities (Prevention) Act, 1987 (for short ‘TADA’). The contentionof the appellant is that the provisions of TADA do not attract inthe instant case, and the case should be tried as a regular SessionsCase, and hence the State has to take necessary steps for reviewingand transferring the case to the regular Sessions Court. By theimpugned order, the learned single Judge has dismissed the writpetition holding that the Supreme Court’s direction would apply onlyto those cases which are pending at the stage of investigation, andthe instant case is not at the stage of investigation, but at thetrial stage, and hence the directions issued by the Supreme Court inKartar Singh’s case (cited supra) is not applicable. According tothe learned single Judge once the trial in a case has commenced oris pending, or charge sheet is filed, and cognizance is taken by theCourt, the Criminal Court alone is having power either to charge,discharge, acquit or convict and pass necessary orders. 4. Mr.R.Sankarasubbu, learned counsel appearing for theappellant, strenuously contended that the learned single Judge hascompletely misconstrued the judgment of the Supreme Court in KartarSingh’s case. Learned counsel urged that all cases under TADA,whether at the investigation stage or at the trial stage, arerequired to be reviewed by a Committee headed by a retired Judge aslaid down in Shaheen Welfare Association v. Union of India, (1996) 2SCC 616. Learned counsel also drew our attention to a judgment ofthe Division Bench of this Court in Government of Tamil Nadu vs.Union of India, (2004) 1 T.N.L.R. 429 (Mad) where the nature andscope of power of Review Committee was considered in the context ofthe provisions of Prevention of Terrorism (Amendment) Act, 2003 (inshort “POTA”). On the other hand, Mr.Raja Kalifullah, learnedGovernment Pleader appearing for the State relying upon the decisionof the Supreme Court in Ghanshyam v. State of M.P & Ors., VII (2006)SLT 525 contended that in view of provisions of Section 321 of theCode of Criminal Procedure discretion to withdraw from prosecutionis primarily that of Public Prosecutor and none-else and he cannotsurrender the discretion to any one. Therefore the prayer of theappellant for reviewing his case by the Review Committee/ScreeningCommittee and consequential withdrawal of the case under TADA cannotbe granted. 5. In Kartar Singh v. State of Punjab, (1994) 3 SCC 569, theSupreme Court while upholding the validity of TADA, exceptingSection 22 of the Act, held in paragraph-265 as follows: - https://hcservices.ecourts.gov.in/hcservices/ "In order to ensure higher level of scrutiny andapplicability of TADA Act, there must be a ScreeningCommittee or a Review Committee constituted by theCentral Government consisting of the Home Secretary, LawSecretary and other Secretaries concerned of the variousdepartments to review all the TADA cases instituted bythe Central Government as well as to have a quarterlyadministrative review, reviewing the States' action inthe application of the TADA provisions in the respectiveStates, and the incidental questions arising in relationthereto. Similarly, there must be a Screening or ReviewCommittee at the State level constituted by therespective States consisting of the Chief Secretary, HomeSecretary, Law Secretary, Director General of Police (Lawand Order) and other officials as the respectiveGovernment may think it fit, to review the action of theenforcing authorities under the Act and screen the casesregistered under the provisions of the Act and decide thefurther course of action in every matter and so on".6. In compliance with the same, the Screening Committees orReview Committees have been constituted to review the cases lodgedunder TADA to examine the existence of element of terrorismattracting the said Special Act containing harsh measures. Once theCommittee takes a view that it was not a case under TADA then theoption was to deal with the same in ordinary criminal law, if thefacts and circumstances so warrant. The said judgment of theSupreme Court speaks of high-level Officers of the CentralGovernment or the State Government, as the case may be. But, in thelater judgment, in Shaheen Welfare Association v. Union of India,(cited supra), the Supreme Court has held that a more independentand objective scrutiny of TADA cases by a Committee headed by aretired Judge, is required to be constituted. There is no disputethat this exercise has not been done by the State Government in thepresent case.7. In Government of Tamil Nadu v. Union of India (cited supra),the constitutional validity of sub-sections (4) (5) (6) and (7) ofSection 60 of POTA was questioned. POTA was first enacted in theyear 2002 which later came to be amended by the Central Act 4 of2004 and provided for a mandatory review of all cases registered, inthe light of the decision of the Supreme Court in Kartar Singh'scase. Section 60 of the POTA incorporated provisions forconstitution of one or more Review Committees for the purposes ofthe Act. The validity of the Act was challenged mainly on theground that the provisions contained in sub-sections (4) to (7) ofSection 60 of POTA are unconstitutional as they encroach upon thejudicial power of the State, and as the investigation was already https://hcservices.ecourts.gov.in/hcservices/ completed and trial is in progress after rejecting the plea ofdischarge, the Review Committee cannot sit as a parallel judicialbody and try to adjudicate regarding the existence of prima faciecase and if permitted, would tantamount to encroaching on thejudicial power of the State, thus violating the constitutionalscheme. The Division Bench expressly rejected this argument and heldas follows: -"14(b) Now, the cases lodged against theaccused/respondents under POTA are at part-heard trialstage. Eight witnesses have been examined on behalf ofthe prosecution and the time has been set by the HighCourt earlier in bail petitions, to conclude the trial bythe end of June 2004. But that cannot stop the ReviewCommittee from considering the matter as to the existenceof the prima facie case regarding the applicability ofPOTA. The exercise of power by the Review Committeecannot be termed as scuttling the judicial process. Inour constitutional scheme, the powers of Legislature,Executive and Judiciary are earmarked and no organ canencroach on the powers of the other and every organ has tobe within the limitations prescribed by the Constitution.We need not refer to several judicial precedents set bythe Supreme Court on this point. Suffice it to refer thelatest judgment of the Supreme Court in Bakhwar Trust v.M.D.Narayanan, AIR 2003 SC 2236, laying down the legalprinciples that a Legislature can remove the basis of ajudgment but cannot annul a judgment. In a criminal case,which is cognizable, the Court frames charges onsatisfaction of existence of prima facie case. But thatis not a decision on merits. Even the negation of plea ofdischarge cannot be construed as a decision that accusedare liable to be convicted. Criminal cases are deemed tobe pending and can be concluded only on the delivery ofjudgment. Upto that stage, the prosecution can always bewithdrawn subject to such limitations as are prescribed inSection 321, Code of Criminal Procedure. Of course, thereis a difference in the stages of withdrawal. Ifwithdrawal is made before framing of charge, the effect isdischarge. But if it is made after framing of thecharges, it is acquittal. No discharge can be orderedafter the charge is framed. Acquittal is the only courseopen. The prosecuting agency ceases to have its role oncethe charge-sheet is accepted by the Court and the chargesare framed. It has to proceed with the case and theinvestigating officer has got no choice. But if thematter is brought to the notice of the Public Prosecutorand particularly from the State Government seekingwithdrawal of prosecution, steps can be taken in that https://hcservices.ecourts.gov.in/hcservices/ regard. A plea made to the Public Prosecutor to withdrawthe proceedings cannot be construed as an encroachment onthe judicial power. At any stage before the pronouncementof the judgment in a criminal case, the State Governmentcan instruct the Public Prosecutor to withdraw theprosecution. In POTA also, the State Government canexercise such power. But if it is not willing to do so,it does not bar the Review Committee exercising the powersunder Section 60 thereof and the Review Committee canalways decide as to whether, in its opinion, the case is afit one to proceed further even if it is in part-heardstage. If the Review Committee comes to the conclusionthat the case is fit to be withdrawn from prosecutionunder POTA, it can address the State Government, which, inturn, has to instruct the Public Prosecutor to invokeSection 321 of Code of Criminal Procedure. The role ofReview Committee is limited only that far and no further.When the role of the Review Committee ends, then it is forthe Public Prosecutor to apply his mind independentlyaccording to the well-settled legal principlesinterpreting Section 321 of Code of Criminal Procedure andultimately it is for the Special Court trying the cases todecide whether the plea of the Public Prosecutor towithdraw the prosecution, if made, is acceptable or not.The submissions of Mr.V.T.Gopalan that sub-section (2)with its proviso of Section 195 of Code of CriminalProcedure has to be made applicable for withdrawing theprosecution under POTA cannot be accepted. It is onlySection 321 of Code of Criminal Procedure, which isapplicable for withdrawing prosecution under POTA. Hence,we hold that upto the stage of formulating an opinionregarding prima facie case under POTA, the ReviewCommittee's decision, one way or the other, cannot amountto interference in the judicial process. We next proceedto the last point." 8. The above decision of the Division Bench has been upheld bythe Supreme Court, and the Special Leave Petition was dismissed withthe reasoned order.9. In our opinion, the role of the Review Committee/ScreeningCommittee is completely misconstrued by the learned single Judge. Itis clearly seen from the observations in paragraph-265 of thedecision in Kartar Singh’s case that the Review Committee orScreening Committee has to be constituted by the CentralGovernment/State Government to review the action of the enforcingauthorities under TADA and screen the cases registered under theprovisions of TADA and decide the further course of action in everymatter. The exercise of power by the Review Committee cannot be https://hcservices.ecourts.gov.in/hcservices/ termed as an encroachment on the judicial power. The ReviewCommittee/Screening Committee constituted in terms of the decisionin Kartar singh’s case can always decide as to whether, in itsopinion, the case is a fit one to proceed even if it is at the trialstage. If the Review Committee/Screening Committee comes to aconclusion that the case is fit to be withdrawn from prosecutionunder TADA, it can address the State Government, which, in turn, hasto instruct the Public Prosecutor to invoke Section 321 of the Codeof Criminal Procedure. The role of Review Committee or ScreeningCommittee ends there and it is for the Public Prosecutor to carryfurther and apply his mind independently according to the well-settled legal principles interpreting Section 321 of the Code ofCriminal Procedure and ultimately it is for the Special Court tryingthe cases to decide whether the plea of Public Prosecutor towithdraw the prosecution, if made, is acceptable or not. Thus, theview of the learned single Judge that only those cases, which arepending at the stage of investigation, are to be reviewed by theReview Committee is completely erroneous. 10. In the light of the foregoing direction, we direct theState Government to constitute the Review Committee/ScreeningCommittee within a period of four weeks and refer the appellant’scase to the Review Committee so constituted. The Committee uponexamination of the matter placed before it shall make appropriaterecommendations to the State Government within a period of fourweeks there from. The State Government shall thereafter takeappropriate action in accordance with the recommendation of theReview Committee. The writ appeal is, accordingly, allowed. Nocosts. Consequently, miscellaneous petition is closed. pv/-Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo:The Chief Secretary to the Government of Tamil Nadu, Fort St.George, Chennai – 600 009.+ 1 cc to Mr. R. Sankara Subbu, Advocate SR No. 4922+ 1 cc to the Government Pleader, SR No.4332AKM(CO)SR/7.2.2007W.A.No. 1624 of 2006