Supreme Court on Withdrawal Cases Under POTA

Ghost of a Law

MAHMADHUSEN ABDULRAHIM KALOTA SHAIKH V. UNION OF INDIA. Criminal Appeal. Date of Judgment 20-10-08

Background
The case came up before the Supreme Court as Criminal Appeals. The appellants are categorised generally into two; relatives of the victims of the unfortunate incidents at Godhra and Akshardham temple carnages, and those who are accused under POTA. The Act provides for the setting up of Review Committees (RC) to look into the abuses of the legislation. If the RC, on review, finds that a charge made against an accused prima facie is unsubstantiated, it can recommend withdrawal of the case under section 60 of the Act. This provision was challenged before the HC of Madras earlier as the power of RC is an interference by the executive in the judicial power and that the direction by the RC to withdraw proseccution is an interefence with the right of the state to prosecute an offence. The HC upheld the validity of the provision highlighting that RC’s recommendation has to go through section 321, Cr.PC procedure for withdrawal of cases and judicial scrutiny therefore is ensured that it will not amount to meddling with judicial power. SC had later affirmed the HC's decision in appeal.

In the present case the relatives of the victims are arguing that section 2(3) of the POTA Repeal Act, shall be held unconstitutional as it interferes with judicial power. The claim of the accused under POTA is that section 2(3) shall not be made subject to section 321 Cr.PC.

This appeal arise from the order of the HC of Gujarat upholding the constitutional validity of section 2 (3) of the repeal Act. HC held that section 2(3) is in pari materia with section 60 (4) to (7), the constitutional validiy of which has been upheld already. As also section 2 (3) shall be subjected to section 321 Cr. PC for the same reason of the same language used in both sections and previous SC decision.

Question of Law and Issues

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no prima facie case for proceeding against the accused under POTA, whether the proceedings shall be deemed to have been withdrawn against such accused or whether it is necessary for the Public Prosecutor to file an application seeking consent of the court for withdrawal from prosecution under Section 321 of the Code.

Decision

On Constitutional Validity: The court upheld the constitutional validity of the provision. There are two judgments in the case. One by CJI and the other by Justice Dalveer Bhandari, concurring but offering different rationale. CJI finds that there should be different appreciation of a ‘live and current’ legislation and one that is being ‘wound up’ ie. a repeal enactment, while determing their constitutional validity.

Following referral points were set by the CJI to determine the constitutional validity

"(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)

(c) A law made by the Parliament can be struck downby courts on two grounds and two grounds alone : (1)lack of legislative competence; and (2) violation offundamental rights guaranteed under Part-III of theConstitution or any other constitutional provision. Thereis no third ground. (Vide State of Andhra Pradesh vs.Mcdowell & Co. - 1996 (3) SCC 709).

(d)The power and competence of Parliament to makelaws in regard to the subjects covered by the legislativefields committed to it, carries with it the power to repeallaws on those subjects. The power of the Parliament torepeal a law is co-extensive with the power to enact sucha law. (See Justice G.P. Singh's Principles of StatutoryInterpretation - 11th Edition, Page 633).

(e)The Legislature may prescribe special procedure tomeet special situations and to meet special objectives solong as they are not arbitrary or discriminatory. [KathiRaning Rawat v. The State of Saurashtra - 1952 SCR 435and In Re : The Special Courts Bill, 1978 - 1979 (1) SCC380].

(f) If any Central Act is repealed, without making anyprovision for savings, the provisions contained in section6 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, 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)."

The power of the parliament while enacting repeal legislation and the effect of it is summarised by the CJI. It is said that the parliament have plenary power to repeal any statute and it will be inapplicable for all future purposes, and can wipe out rights accrued and pending proceedings under the Act, if saving clause is specifically excluded. The logic flows from this is that, when parliament have the outright power to repeal an Act without any saving, obliterating all pending proceedings, it very well have the competency to enact a repeal legislation that can put stop to proceeding abruptly, in this case, on the recommendation of the RC. Therefore, the determination of the issue is done as given below:

“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 having 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.”

On Subjecting Section 2 (3) to Section 321 Cr. PC: The legislative intent on the application of section 2(3) is clear to the effect that there is no requirement of subjecting this section to section 321 Cr.PC. The logic offered is that, if section 321 requirement is made applicable, the effect of deemed withdrawal provided in secction 2 (3) will be rendered nugatory. That for the court, will amount to rewriting of the provision.

On Lack of Judicial Supervision on Withdrwal of Cases: The contention by the realtives of the victims that there will be no judicial supervision for withdrawal of cases, is negatived the court. The existnece of writ jurisction and appellatte jurisdiction under Article 136 for the court will address the issue.

Court makes a distinction between the scheme of the POTA section 60 with section 2 of the repeal Act to overrule the HC judgment which has made section 2(3) subject to section 321 Cr. PC. The reasoning of the HC was that the SC in a earlier case had determined that withdrawal of complaints under section 60 shall be as per the requirement of the section 321. Section 60 and 2 are pari materia. Therefore section 2(3) is suject to section 321.

The Final Decision in Court's Own Words; "[w]e 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 Court where the proceedings were pending, will continue with the case as if there had been no such opinion."