MAHMADHUSEN ABDULRAHIM KALOTA SHAIKH v. UNION OF INDIA & ORS

Citation: [2008] 14 S.C.R. 889

Court: Supreme Court of India

Bench: K.G. BALAKRISHNAN, R.V. RAVEENDRAN, DALVEER BHANDARI

Case summary

MAHMADHUSEN ABDULRAHIM KALOTA SHAIKH v. UNION OF INDIA & ORS.pdf

Judgment text

[2008] 14 S. C. R. 889 MAHMADHUSEN ABDULRAHIM KALOTA SHAIKH .. ~ v. UNION OF INDIA & ORS. (Criminal Appeal No. 1113 of 2005) OCTOBER 21, 2008 [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): Review of cases registered under POTA after repealing of POTA- Power of Review Committee to issue directions for. , withdrawal ofcases in terms of s. 2(3) and (5) ofthe RepealAct - S. 2(3) and (5) of the Repeal Act- Constitutionality of- Held: Since Repealing Act contains an exhaustive provision relating to saving in terms of s. 2(2) to (5) of the Repeal Act, savings from repeal would not be governed by the provisions under 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 - Continuation 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Repealing Act - Repealing Act repeals POTA but provides for certain savings from repeal to meet special features of the repealed statute - It does not violate any constitutional provisions - Hence, s. 2(3) and (5) of the Repealing Act are valid and constitutiona/- General Clauses Act,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 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 [2008] 14 S. C. R. 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 is held to be applicable then s. 2(3) of Repeal Act rendered nugatory and cases cannot be withdrawn until requirements of s. 321 Cr P. C. are 8 not complied with -It would amount to re-writing ofs. 2(3), which is impermissible. · · · · · 5. 60(4) to (7) of POTA vis-a-vis 5. 2(3) of Repealing Act- Review 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 Review- Scope 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 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 function 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 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 'it . - ·~ I ~-~,; /' ·,;:::. ,;;,:.. :::;::~:::: • • - (1991 > 4 sec 699 Relied on Para -19 i ' .

,MAHMADHUSEN ABDULRAHIM KALOTA SHAIKH v. 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 8 (2006) 2 sec 1 Relied on Para -19 - (2006) 7 sec 1 Relied on Para~ 19 (2007) 3 sec 184 Relied on Para -19 AIR 1951 se 332 Relied on . Para -21 c AIR 1955 SC 549: Relied on Para- 21 (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 Criminal Appeal Nos. 1498-1500 of 2005, 359 of 2006, 734 • 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.. ,. Agekhar 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 Yagn 1k, Amlt 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. 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 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'. 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 challenged 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'. 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 aggrieved by the direction to read section 2(3) subject to sect tion 321 of Code of Criminal Procedure, 1973. To appreciate . >:-the rival contentions, the reasons that led to enactment of the Prevention of Terrorism Act, 2002 and its repeal, require to be noted. ..... '- ~ 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. 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 relating 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 ofTADA, this Court observed 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 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 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 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 [2008] 14 S. C. R. 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. · 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 replacing the Prevention of Terrorism (Second) Ordinance, 2001. 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 . R) (;. :.. ) :. -:::--· ·. -· : UNION OF INDIA & ORS~"- ' I ,.. ;t_, '· - of a State shall be made i as . a . Chairp~rson· with the A ~ ·;.. ~ : ·. ~: ·:. ;:;;:. :·~ ··-~=~ 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} . .. shall, on a'n application by any aggrieved person~..

review 0 whether there is a prima facie case for proceeding against ~ the accused :under this· Act and issue directions • ) I ·•. • . . • ... . . . . · accordingly. ·. · . _. . .. . , .. -· ... . ,... , - ~. · . --.. ,- ; -·~ •· · .... , . · · · ..... i I) · · · ' · ' ~ ··'-"·f - · . ' - t . . . · .. .. , . . • c .. •' . . · • 2 . (5) Any direction issued under sub-section (4r:~ ·:. · : -?. : :. : ~ . ·. ~· (iL ~ ·byth. e Re. vf~~w c~~~itt~~ co~~titut~d t;; th~· t~n~r~1 g _· .. ·· _.. ·: Gover. nment: · shall be· binding. on the . Central .. ~ :. . ·. ·. · .. Government, the State Government and the polic~: 1 • • j -· .. · P. fficer investigating the offence; a~d. ·: ·: -:;·. ·; :u:· :·:-'·~ ~ ~ ! • • t I • • • • • • . , • • • • • .. , • ..!. :. ·; (W "'by. the.. Review Committee constituted by t~e . State Ft ;: :, . . : ·Government, shall be· binding on the .. Stat~_ . '· ' . ' . .. . ' . ' . . - \: . ;: i Government a~d the police o~fi~er investigat! n9. th,e; 1 , . : . : ~ 1 .

orre~c~. -. · :·. - . ... -: ·- ' · . · ·. , : :. : :·. Jh. :s ~~~~ : ~ ,~ .. (G) Where the reviews under sub-section (4) relating to : ··: the same offence under this Act have been made by a·· G.! . Review Committee constituted by. the Central Government. : ·' · ~nd a. Review Committee constituted by the··:state ·. : ·.. ;b overnmen~, under sub-section (1); any directio~ issued : Y the Rev1ew Committee constituted by th~ Ce~t~al ~ Qovernment sh II 'I . \ . I I ... -~ · ; . ·•• . . • ' H a prevat . ~· :· ···J~ - · · .... ' t. 910 "~ LSUPREME COURT REPORTs·. -::. : ; [200S]"14 S. C. R. . . >~-~~:. ~~-: ;~ . '. (-~. ~--~-~>~: ~-;() ~-:~·_·). ·- J~. J A :-. ~; r·; (7) Where any-Review Committee'constitut~d under subt ::•r l section (1) is ·of opinion' that there is·no·primci'facie case for proceeding against the accused and issues'directions __ -under sub-section (4), therJ,. the proceedings pending 1' 1 ~ .. -·~(";ll: ... ~ . ~{) ~ 'i~'~}··· ',tl ~ ~- ....... /1;,.... -~· .. _.

;,;~~ J ,. • 1 · '___ . , :·, agamst _the accused shall be_ deemed to have. been l • ~- l. ) ) . ~~ ' ": . I , \ ; t ' , • (: 1 , -,.. ~ ! ~ ' • , • .. _, .. _ ,, ,. \ . ' ~ ~ t ·. • o • L ,I : ·- ,! • t ·- • . • B -~ . · -~withdrawn. from. the date of such direction. ·.. ";. ;. __ ·· . ;1: C ;_t; ;,: " : J '' i ~J::~:. ~~::~(::. J -~- -~- .. ; _. :• . . a. _. The constitutional validity of sub-sections (4rto (7) of , . f , r ' . ' t • · ~ ,, ! , . \ \ • Section 60 inserted by the Prevention of Terrorism (Amendment) 1 Act, 2003·was ·challenged by the Government'of Tamil Nadu in . t~e ~a. d~as High. Cciu~. lt was co~ten~ed, in~er al! ~~ ~~. a~-~:~-~cting 0 "· . ·a prov1sron. that made the decisions of the Rev1ew Committee ,_- · \ binding. on the State Government was an encroachment upon the power and authority of the State to prosecute ··an·affender.

It was also contended that a provision'that a proceeding pending in a courfshali be"deem;ed to'tiave'tieen'withdrawn whem the / E Review Committee'opined that th-ere. is no prima facie case for ! proceeding~gainst the accused,'would'amount to interference with-judicial functions and rencrocichmenrof ·'judiCial power' by . the executive, in violation "of the' constitu-tional sch~eme. .. I ~ • • \ F: ~ i) L~(:9::The1 High Court of Madras'upheld the ·validitY:of sub- . sections (4) to (7) of Section 60'of POTA. ' But itfurther held that the· opinion- rendered. by the. Review Committee would not result in' automatic withdrawal of cases pending-iii court; that as the opinion:was binding . on . the. State government,·-the State ('I-, ~·' • - i ! •. ~ • . ; · ~ .. _ . ~". , '. .. _' ·,. '~ '~ i : ~ ~ ' 11 'J.. • ' ' ' • ' ' .. , ' ' • '· - · _I G) goy~rnme~t ~~s pou·n~ ~9 if! ,str~~t ~~~ Pu~! i,c F:. r_? ~~~~torJ9. with- . draw the prosecution under Section 321 . of the Code;.

that the l f ~ ·, ' '' tI f ! "- I\ J ; . ~. ' ' ' : ' ~ t ~-. I j •. oJ ..... ',.! ~ ' ' ' '""'~ l '-_. •... I . •. : ,0 ' ' ' ) ' ' 1 -~ . _, ~ . _ . • . ' • P,l! blic prosecutor s~ould app_ly his mi~d and then_ file an _appli- • ' . ,... _ • ~ I ~ t . ' \ i • ·; ~ I J ~ · I '(. • ' 4 ,. •' · 1 J ~ rf • lt 0 • """ -- ' Ill ' · · - ~ · ·• . . • ' cat1on seeking theconsent of the. court; and that only on. such • I ; -~ ; ~ • ~' J I~ I : I \. t • • ~ . , ' ·. I ' )'-; '.. ; ·- • J i. :... • ·' . ,.. , * ' L. • ! • • • I ·~ ' • I ~ ... ~·· cor:-tsent be! ng· given, ·th~l proceedings. shaII stand:withdrawn. • • • ' ... l . . • \ lo.. ,J j iJ __, ( • •.... ,;"·. ) . _j • J J ' ~ •• \- . v "' .. .... . • .... . ... . ... .... H : The H1gh Court held: . · _:;elf•_•:·: i! ,~ri ? f ::~-; r:· :·-\~···:~-,-c:· MAHMADHUSEN ABDULRAHIM KALOTASHAIKH v. 911 "The exercise of power by the Review committee cannot A be termed as scuttling the judicial process...

Criminal cases are deemed to be pending and can be concluded only on the delivery of judgment. Upto that stage, the prosecution can always be withdrawn subject to such limitations as are prescribed in section 321 Cr. PC. .. . A B plea made to the Public Prosecutor to withdraw the proceedings cannot be construed as an encroachment on the judicial power. At any stage before the pronouncement of the judgment in a criminal case, the State Government can instruct the Public Prosecutor to c withdraw the prosecution. In POTA also, the State Government can exercise such power. But if it is not willing to do so, it does not bar the Review Committee exercising the powers under Section 60 thereof and the Review Committee can always decide as to whether, in its opinion, · 0 the case is a fit one to proceed further even if it is in partheard stage. If the Review Committee comes to the conclusion that the case is fit to be withdrawn from prosecution under POTA, it can .

address the State Government, which, in turn, has to instruct the Public Prosecutor to invoke section 321 of Code of Criminal E Procedure. The role of Review Committee is limited only that far and no further. When the role of the Review Committee ends, then it is for the Public Prosecutor to apply his mind independently according to the well settled legal principles interpreting section 321 of Code of F Criminal Procedure and ultimately it is for the Special Court trying the cases to decide whether the plea of the Public Prosecutor to withdraw the prosecution, if made, is acceptable or not. .... It is only section 321 of Cr. PC, which is applicable for withdrawing prosecution under POTA. G ' Hence, we hold that upto the stage of formulating an opinion regarding prima facie case under POTA, the Review Committee's decision, one way or the other, cannot amount to interference in the judicial process. ". 10.

The State of Tamil Nadu challenged the judgment of the Division Bench of Madras High Court by filing Special Leave Petition before this Court. While dismissing the Special Leave Petition on 8-3-2004 this Court observed as follows :- "By the amendment, the decision of the Review Committee 8 is. made binding on the Central Government, State Governments and the Police Officers investigating the offence. The High Court has held, in our-view correctly, that these amendments are based on the recommendations made by the Constitution Bench of the Court in Kartar Singh Vs. State of Punjab reported in (1994) 3 SCC 569 and the judgment of this Court in R. M.. Tiwari Vs. State (1996) 2 SCC 610. These are the provisions which provide safeguards against misuse of the stringent ·provisions of such an Act. In our view, the High Court has 0 correctly held that the challenge cannot be sustained.

The High Court has also correctly held that the directions given by the Review Committee could only be subject to Section 321 of the Criminal Procedure. Code". 11. In view of adverse reports about the misuse of the provisions of POTA in some States, the Parliament repealed POTA, by the Prevention of Terrorism (Repeal) Ordinance, 2004 promulgated on 21. 9. 2004, later replaced by Prevention of Terrorism (Repeal) Act, 2004 ('Repealing Act' for short). Section 2 of the Repealing Act reads as follows :- ~ "2. Repeal ofAct 15 of 2002 and Saving :The Prevention of Terrorism Act, 2002 (hereinafter referred to as the Principal Act) is hereby repealed. (2) The repeal of the principal Act. shall not affect - (a) the previous operation of, or anything duly done or suffered under the principal Act, or (b) any right, privilege or obligation or liability acquired, accrued or incurred under the principal Act, or . . . ! · : ~v1A~~AD. t~USEN A3DULRf\~l~ KALOTA S!. "IA~~H. v. . , 913 t-. . .

\ I ' "·;.. : '·~ ,•. . '·:'' UNION OF INDIA&' ORS. . · ···"... ' ' ... ·~ . ·', (c) . any penalty, .. forfeiture or punishment incurred in ·A • ' ' I I ( ' • I • ' • ' • 1 . ' o ~ t 0 : • ;· / ") • : • I • • • ' I • • •• • , i . . ; . ; ; ~ i "' .. ; . ~ . . Jespect of any ~pffence·unde( the. pnnqpal Act, or · 0 0 !........ ~: ~ :.. ' ' •. ' ," "' .. _ :,, ·. _1 ; i i , - , · . :~ . ', ' ' . :: :: ~ . - . , : o • 1 ~ ' ,• •: ' ,;_ , ;I •. ; ~ ~ : 1 , : ' ' j ~'.. _, ' ,!. '" • , : ' . . (d)"T any·,investigation> legal ·proceeding ,or. remedy· in -. . respect of any such right, privilege, obligation, liability, · / p'enalty; . ~forteitu,re 0~ punish~ent as aforesai~. / • • l ~ • '•.. • i • • • ~.. : \ - : ,. . ' • • • ' . •' • . ,.. • -~ I ' ,; ~ . . ... I ~;.... ' B .. ~t:l:9. • ,a_ny~s~ch inye~ti~atio. n~ leg~l.. proc~ed! ng ~r r~medy . may be instituted,· continued or enforced,and any such '· I,' • ' ) ' ', 0 ,' ' penalty, forfeiture or punishment may be imposed as if the !

• principai ·Act had nc. t been repealed. :· ·. I : . • i~. • ~· ·~.. • ·. · ·: >. ! '··:::· . ,! ; ··... ·.. ··, . •"·, · ·,. ·' ~ . . · . . ,--· · ~ ·. ·· .. ·: ·... . :· ·. ,": . :· ·-·-,·~ Prov,ded that notwithstanding anythmg contamed mthis C I ( ' ~ ; : . ' I ~ . ' • t • i • • ' ' : . ' . . • ' : 1 • •• . • • • • ' .. sub-sectton or many other law for the t1me betng m force, .. . ' ; · no ·court shall take:cognizance of. an offence under the .. i ~ . .. Principal Act after the expiry_of the period of one year from . _ j: . the. commencement of this Act. : ,,:·. · ,.. ·. :' . · . · ~ ~.. ~;'_·~. ,.. ~f '. : ! . ~ _. \ ~~· j •• yo.. ,o·: ; ~,:l:·" ' :_ ,,, • : ' •, ,• \ , ·. , : , w•::_- : ;, ' I I . {a);_. -:-:in cases in :which cognizan. ce has been taken by the ·. · . I~ '. ) :·:. ~; ·: co'urt;· _ the ~ cases shall be.. deemed . ·to have ·been ·. · :;·. I I · · w ·lth. dr. awn··and · ·::-·i ···. ;. " ~ -. ;; ··. · · ·(. .. ·•. ,. ·· . ·.. . :· ~~ ; · · ·,- . _;, ,- ~ .. . . . .

. . - . . .. . . . . . - ,; .. ~. .. . . (b) ··· ~_ in ( cases : ir1 which iinvestigations :are ·pending,' the G . _ i~ :~. '· investigations shall be closed . forthwith: ·' :,·'; ~ ) ·' ": :..... ~ - -·.. .. : . ,· ·. ,- ~ . ' ' ,•,. ,.. : ' . - '" •'' 1 ·~ .. _ ,. ~ ,•· ~. ;, r? ''~ '• . ,. , i , _. , . •· ~~ ~· , •; I A· ' , rn R. M. Tiwari (supra); a case under TADA, this ·court ob- . ·-· ..... • ...... ~--~t~·-··: . ' .. , ~ ( ~-. " ;' .. 1'. •. ~: t: ··. ~·· '. ' ', -.. ,· .. ·· served:·-·~·------· ,. _ -- · -· ~~ \. L. · --- -~- ·"- -- 1 . ·'.. \,,. -·\;,~-- ~L) ·> ,·l~:~,. ,;. ~t. :~. ,~: :. ". '. ~-~ -~--~-:~>. ·. . _,; _,'7. :lt is,·therefore,. clearthat the. Oesignatep,·Courtwas : : ,' Jight in taking the view that withdrawa r from prosecution is ::· ·. - .. : ~ · ,-:--cB)t appears that in these m~tters, the public prosecutor: .. ·. : ~n did not fully app~eciate the requirements_ of Section 321 ; 0 :--CrPC and made' the·. applications for withdrawal-from ..

-: ,Prosecution onlyon the basis of the recommendations of. -_· ·. the Review_ Committee. ; It was necessary for the public -~-- _ ·: _. :,. p~os~~utor to satisfy him. selt in each. case that the case is, ·. ·-"--. ,_ :.. : ·-- .. fit for withdrawal_ from prosecution in accordance with the · .. · '-:-i··,>settfed principles indicated in the decisions ofthis Court · :i/ ::, and then to satisfy_the Designated Courtof the_ existence· , , ofa gro. uhd which. permits withdrawal from prosecution. · . under Section 321 CrPC. -~, · ·- · ; ::·; ~- ~~ "The purpose of constituting such committees was to c ensure a higher level of scrutiny regarding applicability of ~· the provisions of TADA to the case in point.

The need for such committees is amply borne out by the results which have been annexed in the affidavits filed on behalf of the Union of India before us relating to the number of cases 0 so reviewed by the Review Committees where it has been found that the provisions of TADA ought not to have been applied. " 15. The said decision of the Division Bench of the Gujarat _........ ,... High Court and the decisions following the said judgment are E challenged in these appeals. When these matters came up before B. P. Singh and H. S. Bedi JJ, on 22. 2. 2007, being of the view that the provisions of section 60 of POTA were different from the provisions of section 2 of Repealing Act, they directed that the matter should be heard by a larger bench. The refer- F ence order (after correcting certain typographical errors) reads thus: "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 G High Courts in India and one of the judgments was appealed against and was disposed of by this Court by its order of ath March, 2004. This Court noticed that by the amendment of 2002 the decision of the Review Committee is made binding on the Central Government, the State H 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 direction given by the Review Committee could only be subject to Section 321 of the Code of Criminal Procedure.

We notice that by reason of the amendment of the Prevention of Terrorism Act, the provisions introduced namely, sub-sections (4) to (7) in Section 60 did provide that if the Review Committee was of the opinion that there ~as no prima facie case for proceeding agains't the accused and issued directions under sub-Section (4), then the proceeding pending against the accused shall be deemed to have been withdrawn from the date of such r-direction. Whereas sub-section (7) of section 60 inserted by the Amendment Act used the words "the proceedings pending against the accused shall be deemed to have :been withdrawn", sub-Section (3) of Section 2 (of the / Repealing Act) refers to two types of proceedings pending ·-___,. ____ · against the accused namely, cases in which cognizance has been taken by the court and the case which are at the stage of investigation. It ·is therefore, submitted before us that whatever may have been the ambiguity .

in sub section (7) of Section 60 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 be~n withdrawn. To accept the submission urged on behalf of the appellants, > we must hold that the provisions of the Repealing Act relied upon by the appellants overrides the provisions of Section 321 of the Code of Criminal Procedure which provides 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. However, we feel that in view of the reasons and the L . , r observations contained in the earlier order of this Court . disposing of the Special Lea·ve Petitions from the judgment and order of the High Court of Gujarat, and later from the High Court of Madras, it would be appropriate if the matters be placed before a larger bench for consideratio·n.

" It is in this background these matters are placed before this three Judge Bench. We have heard the subm. issions of the learned counsel. 16. According to.. the POTA accused, the provis. ions of section 2(3) of the Repealing Act are materially different from ·' the wording of section 60(4) to (7) of POTA.. Under section 2(3) of the Repealing Act, the opinion of th·e . Review Committee is final and conclusive and if the opinion is to the effect that there is no prima facie case for proceeding against the accused under POTA, the cases in which cognizance has been taken by the court, shall be deemed to have been withdrawn, and in cases where investigations are pending, the investigations shall --r~ be dosed forthwith.

They contend that the clear legislative intent is that-after the repeal of POTA, continuance of any proceedings initiated under POTA in which cognizance 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 proceedings against the accused, the case shall be deemed to have been withdrawn with effect from the date of issuance of the direction by such Review Committee. It is submitted 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 . prosecu~ion, nor any need or occasion for the court to consider whether consent should be given for such withdrawal from prosecution, as the proceedings are deemed to have been ~ withdrawn with effect from the date of the issuance of the direction by the Review Committee. 17.

The counsel for the. State of Gujarat, ·on the other hand, . . ' . . .. contended that the High Court had rightly held that sub-section (3) of section 2 of the Repealing Act does not dispense 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 have to independently consider such application and come to a conclusion whether it should consent to the prosecution being withdrawn or not. 1,8. The relatives of victims contend that section 2(3) &(5) of Repeali~g Act ought to be declared . as unconstitutional on . ·.. .. the ground that they amount to encroachment on the judicial . . .. .... power of the State. Alternatively they supported th. e decision of • I • • • • . I the High Court and coptended that once the Special Judge took .

cognizance of the offence, the proceedings could be withdrawn · only under Section 321 of the Code. It was contendeq that the Review Committee being purely a committee ap. pointed by the executive, has no right to determine the innocence or otherwise of an accused. It was submitted that merely because the Chair- • • > man. of the Review Committee is a retired . Judge, the Commit- "---·· . ~r tee does not become. a judicial authority. It was further submitted that the Committee could only be characterized as an exter.. : . nal body ahd such a Committee cannot be a clothed with a judi- · · cial power to withdraw the pending cases from the Court. Ref:. . . ~ erence to various decisions of ·this Court was made wherein . . .. . . . this Court delineated the scope and ambit of Section 321 of the. ' ... . Code. Our attention was drawn to the following observations of · . ' . : ·· Justice V. R. Krishna lyer in BALWANT S/NGH. AND ORS. Vs. . STATE OF BIHAR- (1977) 4 SCG 448 :- · : . · ·--~ ·.

"The Court has to be vigilant when the. case has been . ··.. · : ·... · pending before it and not succumb to -executive suggestion · · ·· made in the form of application for withdrawal with abunch · ··. of papers tacked on. Moreover, the State shc:uld not stultify . . ~: . the Court by first stating that there is a true case to be trie~ · . . r . and then make a volte face to the effeGtthat on ·a second investigation the case has been dis~overed to be f~! se. " _, Reliance was also placed to the following observations of ;, Justice V. R. Krishna lyer in SUBHASH CHANDER Vs. STATE (CHANDIGARH ADMINISTRATION) & ORS - (1980) 2 SCC 155: "When a case is pending in a criminal court, its procedure 8 and progress are governed by the Criminal Procedure Code or other relevant statute. To intercept and recall an enquiry or trial in a court, save in the manner and to the extent provided for in the law, is itself a violation of the law.

Whatever needs to be done must be done in accordance with the law. The function of administering justice, under our constitutional order, belongs to those entrusted with judicial power. One of the few exceptions to the uninterrupted flow of the court's process is Section 321 Cr. P. C. , 1973. But even here it is the Public Prosecutor, and not any executive authority, who is entrusted by the Code with the power to withdraw from a prosecution, and that also with the consent of the court. We repeat for emphasis. To interdict, intercept or jettison an enquiry or trial in a court, save in the manner and to the extent provided for in the Code itself, is lawlessness. The even course of criminal justice cannot be thwarted by the executive, however, high the accused, however sure government feels a case is false, however unpalatable the continuance of the prosecution to the powers-that-be who wish to scuttle court justice because of hubris, affection or other noble or ignoble consideration.

Justicing, under our constitutional ~ order, belongs to the judges. Among the very few ~ exceptions to this uninterrupted flow of the court process is Section 494, Cr. P. C. 1898. Even here, the Public Prosecutor -not any executive authority- is entrusted by the Code with a limited power to withdraw from a prosecution, with the Court's consent whereupon the case comes to a close. What the law has ignited, the law alone shall extinguish Reference was next made to SHEONANDAN PASWAN ': f. --·, - tion 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 un- G der 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 see! - ·~ 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, 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. The express , provision in section 2(3) of the Repealing Act that even where cognizance has. been taken by the court, the cases shall be '· deemed to have been withdrawn, is not found in section 60(4) . ---to (7) of POTA. Once the law made by the Parliament specifically states that wherever the Review Committee is of the opinion that there is no prima facie case for proceeding against the accused, the cases shall be deemed to have been withdrawn. If the Parliament wanted to make the provisions of section 2(~) of the Repealing Act subject to Section 321 of the Code, it would have been done by making appropriate provisions therefor.

As that is not done, plain meaning of the words of the legislation ~ has to be given effect to. 29. Section 2(3) of the Repealing Act also contains clear indications which exclude section 321 of the Code. They are: (i) The review is by Review Committee with a sitting or retired Judge of the High Court as the Chairman, having the power of a civil court in respect of discovery and production of documents ......... and requisitioning records. (ii) All cases registered under POTA are required to be reviewed irrespective of whether any appli- ·· N! AHMADHUSEN ABDULRAHIM KALOTA SHAIKH v.

931 • cation was made by an aggrieved person or not, so as to find out whether there is a prima facie case for proceeding against the accused under POTA; (iii) The sub-section clearly provides that where a Review Committee opines that there is no prima facie case for proceeding against the accused, cases pending in court also shall be deemed to have been withdrawn with effect from the date of issuance of such direction by the Review Committee. The wording is clear and unambiguous and does not contemplate or provide for a further application of mind by the Public Prosecutor or grant of consent by the court under section 321 Cr. P. C. We are therefore of the view that the High Court was not right in assuming that the decision of the Madras High Court approved by this Court with reference to section 60(4) to (7) of POTA will apply in regard to section 2(3) of the Repealing Act. 30. An apprehension was expressed that if the review committee reaches a wrong opinion there will be no remedy.

It was pointed out that if section 321 Cr. P. C. was applicable, there will at least be a judicial scrutiny before the opinion resulted in withdrawal. The scope of the role played by a court under Section 321 of the Code was explained in SHEONANDAN PASWAN (supra), thus: "Since Section 321 finds a place in this chapter immediately after Section 320, one will be justified in saying that it should take its colour from the immediately preceding Section and in holding that this Section, which is a kindred to Section 320, contemplates consent by the . ~·· court only in a supervisory manner and not essentially in , an adjudicatory manner, the grant of consent not depending upon a detailed assessment of the weight or volume of evidence to see the degree of success at the end of the trial.

All that is necessary for the court to see is to ensure ·that the application for withdrawal has been properly made, after independent consideration, by the Public Prosecutor and in furtherance of public interest. .. ...... The section does not insist upon a reasoned order by the. Magistrate while giving consent. All that is necessary to satisfy the section is to see that the Public Prosecutor acts in good ·faith and that the Magistrate is satisfied that the exercise of discretion by the Public Prosecutor is proper. " 31. The opinion of the Review Committee is open to judicial review under Article 226 of the Constitution. Any person 8 aggrieved by the opinion can challenge it in a writ petition. As long as an aggrieved person could challenge the opinion expressed by the Review Committee by invoking judicial review, the apprehension that there will be -no remedy in the event of wrong opinion by Review committee; is unwarranted. The opinions of the Review Committee_ under section 2(3).

of the Repealing Act are limited in number. and are required tobe given . as an one time measure with reference to a repealed statute. The avaiiability of judicial review under Article 226 in the event of errors and abuse, is a sufficient safeguard and deterrent . against any wrong doing by the Review Committee. -32. We 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 ofthe 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 ~ith the case as if there had been no such opinion. 33. ·1n view of the above the appeals are disposed of as follows: · MAHMADHUSEN ABDULRAHIM i ..... · __, ; ·. -~- . '':- ~--~ ···-:'' . : . . - "the Special Leav·e Petitions are filed against th-e. Judgme. nt of the High Court challenging·.. th. e amendments. to the Prevention of Terrorism Act, 2·ooiwhichgives to the Revfew Committee powers which earlier it did not have·. By the • amendment, the decision of the Review Committee Is made binding on the Central Governm~nt, State Governments and the Police Officers inve~tigation the offence.

The High Court has held, in our view correctly, that these amendments , are based on . the recommendations made by the Constitution Bench of . this Court in Kartar Singh v. State of Punjab reportedin(1 -994) 3 SCC and the judgment of this Court in R. M. Tiwari v. State (1998) 2 SCC 610. There are the provisions. which provide safeguards against misuse of the stringent ' provisions of such an Act. In our view, the High Court has a/so correctly held that the directions given by the Review Committee could only be subject to Section 321 of the Criminal Procedure Code. We, therefore, see no reason to interfere. The Special Leave Petitions are accordingly dismissed. " 4. The High Court of Gujarat was dealing with a_POTA (Repeal) 2004 question, not POTA 2002, it sought to find language that was pari materia to both statutes. If the statutes were effecr tively the same, then the Madras High Court judgment would be relevant to the Gujarat case. Moreover, the GujaratHigh Court ..

_ · could argue that the Supreme Court gave-its imprimatur of approval. ,_ 5. The High Court reasoned that section 2{3) of POTA (Re- A peal) 2004 is pari materia with section 60{7) read with section 60(4) of POTA 2002. Section 2(3) of POTA (Repeal) 2004 provides that where the Review Committee is of the opinion that there is no prima facie case for proceeding against the accused', then, in cases in which cognizance has been taken by the Court; B the cases shall be deemed to have been withdrawn. __/ 6. Section 60(7) of POTA 2002 state~ that where any Re- · view Committee constituted·under sub-section (1) is of opinion that there is no prima facie case for proceeding against the c accused and issues directions under sub-section (4), then the proceedings pending against the accused shall be deemed to have been withdrawn from the date ofsuch direction.

In the High · Court's words: "though, the language of Sub-section (3) of Section 2 of the Repeal Act is not identical to that of sub-section (4) read with sub-section (7) of the 2002 Act, it is substantially pari materia to those provisions inasmuch as the opinion formed by the Review Committee on the prima-facie nature of the case for not proceeding against the accused under the 2002 Act has been given primacy and virtually made conclusive in the scheme of both the provisions. The only difference between the scheme of sub-sections (4) to (7) of Section 60 (as amended in the year 2003) and Section 2(3) of the Repeal Act is that while in the former case the 1 Review Committee could initiate action on an application -1made by an aggrieved person and the direction given by it were treated binding on the Central Government etc.

under sub-section (3) of Section 2 of the Repeal Act the Review Committee is required to examine all the pending cases registered under the 2002 Act for G ~ determining whether there is· a prima-facie case for proceeding against the accused under the said Act. One starking similarity between the two sets of provisions is that once the Review Commifft~e forms an opinion that there is no prima-facie case for proceeding against the H , ,_ ~accused under the 2002 Act, the pending cases were ... treated as automatically withdrawn. Therefore, keeping in view the ratio of the judgment of Madras High Court which has been approved by the Supreme Court, we are inclined to agree with the learned Additional Solicitor 8 General that the impugned provisions should be read in conjunction, with Section 321 of the Code and same do not, in any manner; encroach upon the judicial power of -~ the State and that the opinion formed by the Review . , I,.

- Committee on the prima-facie nature of the case under . the 2002 Act has to be given due weightage by the Special '·" court and accepted unless there are exceptional reasons for not doing so. " (emphasis added] 7. It appears as though the Gujarat High Court considered "proceedings pending against the accused" to include those · proceedings in which the Special Court had taken cognizance ~of the matter. from this limited interpretation, one can call the statutes pari materia. It seems that the High Court correctly downplayed the difference between the Review Committee's ~ having to receive an application before taking . action and the Review Committee's having to take action immediately and review a// pending cases. B. Ultimately, the debate over whether the statutes are pari materia misses the point. If section 321 of Cr. P. C.

itself cannot ~···· , apply, the issue comes for consideration is whether or not'POTA ~ ' (Repeal) 2004 encroaches on the jurisdiction and powers is clearly violative of the concept of the separation of powers. Here, the High Court neither provides analysis nor support for its con- : elusion that judicial review is not affected. Then again, judicial .. review is only slightly modified when section 321 of Cr. P. C. has r . -: been read into POTA Repeal 2004, as the High Court did. That is likely why the High Court chose not to analyze the question from a judicial review standpoint. The Special Court still gets the last word, but it now has to give the Review Committee's t\ decision "due weightage" or it must accept the Review A Committee's opinion "unless there are exceptional reasons for . ( not doing so. " Of course, it is the public prosecutor who is most affected by the Gujarat High Court's Scheme. He no longer chooses whether to file an application for withdrawal or not.

The Review Committee can compel him to do so. This is at odds B with section 321 ofCr. P. C. That said, it may have been the High Court's attempt at harmoniously interpreting two competing stat- J ~J utes. The High Court while concluding observed thus: I ".... once the Review Committee, after hearing the c concerned parties and perusing the relevant records/ material forms an opinion that no prima facie case is made out for proceeding against the accused under the 2002 Act, ! he Public Prosecutor appointed under Section 28 of the Act will have to me appropriate application under Section 321 ofthe Code without any delay and the Special D 'I- Court will be required to pass appropriate order givin:g , . due weightage to the opinion of the Review Committee ,.. / and keeping in view the observations made by the (1996) 2 SCC 610 and Shaheem Welfare Association Supreme Court in R. M. Tiwari' v. State of Delhi v. Union of India E -1 (1996) 2 sec 616" 9. Before proceeding, I note that R. M.

Tiwari's case was dealt with by a two-Judge Be! nch. Several States had ·const,ituted Review Committees, to n3viewcases brought underTADA, F 1987. The Committees were appointed in compliance with -i Kartar Singh v. State of Punja:b (1994) 3 SCC 569. Relying on Sheonandan P_aswan v. State of Bihar & Others (1983) 1 SCC 438 (and other cases that analyzed section 321 of Cr. P. C. in -' the absence of a statute to the contrary, the Court found that the Committee's recommendation to withdraw was not binding G and was subject to section 321 of Cr. P. C. This case does not o.. -'l apply to the present dispute because the Court was not dealing ~w\th POTA (Repeal) 2004, whose text expressly states that the Committee can deem a case withdrawn. Instead, the case was interpreting the State Review Committee's interpretation of H ,,. 1 1-i.. Kartar Singh S directions, which are ambiguous as to whether section 321 of Cr. P. C. should apply to the Committee(s) it \ ' spawned. ' 10.

The Madras High Court took a similar stand but more closely adhered to the case law that has interpreted section :- 321 of Cr. P. C. by retaining the public prosecutor's ability to make ! ' ~~ an independent decision. The High Court observed thus: \. ""W' ! 'The words in sub.. section (7) of Section 60 of POTA, 'the proceedings pending against the accused shall be deemed to have been withqrawn from the date of such direction' . shall have to be understood only in the context of Section 321 of Code of Criminal Procedure to mean that if the Review Committee forms an opinion that the prosecution under POTA again~t the accused respondents does not attract the provisions of POTA, appropriate directions can be issued to the State Government and if ,.... the directions are in the nature of addressing the Public ..... _ ~ Prosecutor to withdraw the prosecution, then such a direction is binding on the State Government.

But the said direction is not binding on the Public Prosecutor, as under Section 321 Code of Criminal Prpcedure, he has to formulate his opinion on his independent application of mind and even if an application under Section 321 Code of Criminal Procedure is filed, the ultimate arbiter is the Special Court, which has to consider the matter taking the over all situation but by giving due consideration to the · ·t - .... opinion of the Review committee... " 11. Before turning to the Supreme Court's brief order in which it upheld this case, I must examine the Madras High \.. Court's reasoning with regard to the issue of encroachment on I , judicial power in violation of separation of powers. The Madras High Court assumes that section 321 of Cr. P. C. applies to POTA. ~- No detailed analysis is provided- sections 4 and 5 of Cr. P. C. \:. are not raised; nor is the question as to why Parliament would require two reviews. If I were to assume that section 321 of l-- ~ _,J Cr. P. C.

applies, the question of interference with the judiciary -,.. - , ' becomes moot. 12. It has become imperative to deal the aspect of removal· of judicial review on basic structure of the Constitution. DOES REMOVAL OF JUDICIAL REVIE~ WHICH IS , THE CONCEPT BEHIND SECTION 321 Cr. P. C. , · VIOLATE THE BASIC STRUCTURE? ; ,.. 13. While section 321 . of Cr. P. C. itself does not apply, the principle of judicial review embodied therein does. In other words, section 321 of Cr. P. C. is a codified version of judicial review. At the trial court level, section 321 of Cr. P. C. ensures that the judiciary makes the final decision by approving the public prosecutor's decision to withdraw a case. Even if section 321 of Cr. P. C. is made inapplicable 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. >-" 14. On the other hand, judicial review should not suffer the same fate.

A violation of judicial review is another way ofsaying that the separation of powers between the principal three organs of the State have been violated. Judicial review forms part of the basic structure of the Constitution. And when judicial re- ' view is removed - even at the trial court level - the question becomes one of degree : has the basic structure been de- F, strayed? Our short answer is that because POTA (Repeal) 2004 ~ has not removed judicial review underArticle 226 orArticle 136, the basic structure has not been destroyed. Given the gravity of this question, I deem it necessary to explain my reasoning. 15. The Courts' powers to grant consent to a 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.

It goes without saying that the Court's decision to grant consent to an application for withdrawal is a judicial function. If it is granted, the case is over. Resolving legal disputes is the core function of 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 impli- · cates the basic structure doctrine. 16. This Court has not had the opportunity to analyze what ~- 1 is behind section 321 of Cr. P. C. Before POTA, there was no need to ask whether judicial review exists in the absence. of section 321 of Cr. P. C. That is why the cases analyzing section 321 of Cr. P. C. are illustrative of the _importance of judicial review, but they are not on point. For example; in the State ofBihar v. Ram Naresh Pandy &Another AIR 1957 SC 389, this Court observed as under:- 0 "3;.....

The section is an enabling one and vests in the Public Prosecutor the discretion to apply to the Court for its consent to withdraw from the prosecution of any person. The consent, if granted, has to be followed up by his . E discharge or acquittal, as the case may be. The section gives no indication as to the grounds on which the Public Prosecutor may make the application, or the considerations on which the Court IS to grant its consent. There can be no doubt, however, that the resultant order, on the granting of the consent, being an order of (discharge' or (acquittal', would attract the applicability of correction by the High Court under ss. 435, 436 and 439 or 417 of the Code of Criminal Procedure. The function of the Court, therefore, in granting its consent may well be taken to be ajudicial function. It follows that in granting the consent the Court must exercise a judicial discretion.... " ..

• As far back as 1957, this Court recognized that the High Court could still correct the trial court's decision to withdraw. 17. In Sheonandan Paswan's case (supra), a three-Judge [2008] 14 S. C. R. Bench of this Court stated: A / .. ~ "89 ......... Theexercise of the power to accord or withdraw consent by the Court is discretionary. Of course, it has to exercise the discretion judicially. The exercise of the power of the Court is judicial to the extent that the Court, in a according or refusing consent, has to see (i) whether the grounds of withdrawal are valid; and (ii) whether the " application is bona fide or is collusive ..... ... ; A Constitution Bench in Sheonandan Paswan v. State of Bihar (1987) 1 SCC 288 referred to and approved the above ~ judgment. SEPARATION OF POWERS IS PART OF THE BASIC STRUCTURE: 18. In His Holiness Kesavananda Bharati Sripadagalvaru a v. State ofKerala & Another(1973) 4 SCC 225, the Court opined \.

that separation of powers is a part of the basic structure of the Constitution of India. {1973) 4 SCC 225, per Sikri, C. J. , as paras ->-' 292 and 293, per Shelat and Grover JJ at para 582 -"Demarcation of power between the legislature, the Executive and the 3 Judiciary". 19. I need not dwell on the fact that the separation of powers is part of the basic structure. This has been well established in a plethora of cases. [See: S. R. Bommai & Others v. Union '=f oflndia & Others(1994) 3 SCC 1, PerChandrachud, J. at2742, - I . per Beg. J. at 2426-30, 2472, per Ray, C. J. , at 2320; State of -. Bihar & Another v. Bal Mukund Sah & Others (2000} 4 SCC 640 (para 32); I. R. Coelho (Dead) by LRs v. State of Tamil Nadu (2007) 2 SCC 1; Indira Nehru Gandhi v. Raj Narain, Q 1975 (Suppi) SCC 1; Minerva Mills Ltd. & Others v. Union of India & Others (1980) 3 SCC 625; Sub-Committee on Judi- __, cia/ 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 Demo- 942 MAHMADHUSEN ABDUILRAHIM KALOTA SHAIKH·v. • A cratic Reforms·& Another (2002) 5 SCC 294; Speciai ·Reference No. 1 of 2002, In re (Gujarat Assembly Election ma'tter), ~ ~ (2002) 8 SCC 237; Pratap Singh v. State of Jharkhand & Another (2005) 3 SCC 551; Ramesl1war Prasad & Others (VI) v. Union of India &Another (2006) 2 SCC 1; Ku/deep Nayar & 8 Others v. Union of India &Others (2006) 7 SCC 1; Raja Ram Pal v. Hon 'ble Speaker; Lok Sabha & Others (2007) 3 SCC 184.. 20. However, our Constitution does not envisage a strict ~"' separation of powers. There is separation by necessary impl'i- 0 cation. In fact, the Constituent Assembly negated strict separa- 11 tion of powers. Amendment 40 was proposed. It read, 40-A. There shall b. e complete separation of powers as between the • principal organs of the State viz. the Legislative, the Executive, ..... and the Judicial. " This was resisted by Dr.

Ambedkar and otha ers on the ground that what was required was a harmonious governmental structure and no~ a strict or complete separation . J. of powers [See Constitution Assembly Debates, Vol. VII, p. 959]. '-"'(_. . 21. From the very beginning, the Supreme Court has 3 recognised the existence of an implied separation of powers.. See: In Re Delhi Laws Act, 1912, Ajmer-Merwara (Extension of Laws) Act, 1947 v. Part 'C' States (Laws) Act, 1950 (Reference under Article 143 of the Constituc,Jn of India) 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 Dalmia & Others v. Justice S. R. Tendolkar& Others AIR 1958 \sc 538. - 22. With each organ of the State overseeing its sphere of control, the Court has had occasion to protect the judiciary from 8 executive and/or legislative encroachment. Where judicial review is curbed or outrightly removed, the Court may review the constitutional validity of such an action .

+-- 23. Indira Nehru Gandhi case (supra) provided one of the occasions in which separation of powers was invoked. In response to this judgment, the Parliament passed the Election A ~ " Laws (Amendment) Act, 40 of 1975. This Act, inter alia, provided that services rendered by government servants shall not be deemed to be in furtherance of the candidate's election. 1 Shortly thereafter, Parliament passed the 39 hAmendment by which, inter alia, Article 329A was inserted into the Constitu- B tion. [Para 3]. Article 329A(1) and (2) provided that, in the future, a Prime Minister's election to either House of Parliament could not be questioned by the judiciary. [Paras 5-S]. 24. Article 329(A)(4) stated that no election laws apply or c· shalt be deemed to have applied to Parliamentary elections. [Para 8]. In addition, it nullified any court order that had voided an election. [Para 8].

Article 329(A)(5) directed the Court to dismiss any appeal pending before the Supreme Court consistent with 329(A)(4). [Para 9]. Article 329(A)(6) stated that the provi- D sions of 329 would go in effect notwithstanding anything con- <. tained in the Constitution. [Para 10]. --+ ~ ' y-· 25. The Court struck 329A(4), holding it in violation of the basic structure. Article 329(A)(4) appropriated the Court's power to adjudicate election laws, encroaching on the judiciary in vio- E lation of separation of powers. In voiding this part of the 39th Amendment, the Court declared that separation of powers and judicial review (by necessary implication) are part of the basic structure because of the retrospective effect of the ~lection Laws (Amendment) Act, 40 of 1975. I turn to a number of relevant F passages for further guidance:- .... I "Para 60: (Ray, C. J. ) It is true that no express mention is made in our Constitution of vesting in the judiciary the ..

_, judicial power as is to be found in the American G Constitution. But a division of the three main functions of Government is recognised in our Constitution. Judicial ~, power in the sense of the judicial power of the State is vested in the Judiciary. Similarly, the Executive and the Legislature are vested with powers in their spheres. Judicial power has lain in the hands of the Judiciary prior -~ ,, to the Constitution and also since the Constitution.. It is not the intention that the powers of the Judiciary should be passed to or be shared by the Executive or the Legislature or 'that the powers of the . Legislature or the Executive should pass to or be shared by the Judiciary. Para 64: (Ray, C. J . ) "Clause 5 in Article 329-A states that ...

an appeal against any order of any court referr~d to in , _ Clause 4 ·pending, before the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975, before the Supreme Court, shall be disposed of in conformity with the provisions of Clause 4. The appeal cannot be disposed of in conformity with the provisions of Clause 4 ~ _,- · inasmuch as the validation of the election cannot rest on Clause 4. " 26. I note that the very fact that the Court did not dispose Of the appeal by writing a summary order citing to Clause 5 ~ --~ shows that the Court dismissed outright the Parliament's at- ~ tempt to remove a pending appeal from the Court's purview. By holding Article 329(A)(4) unconstitutional, Claus_e (5) became moot. Justice Chandrachud, as he then was, recognized this technical point and held both -Clauses (4) and (5) unconstitu~ · tionaI. The others did not seem it necessary to deal with Clause (5}. [see Khanna, J. at para 185] 27.

At para 688, Justice Chandrachud further expounded \ the doctrine of separation' of powers: r "I do not suggest that such an encroaching power will be pursue~ relentlessly or ruthlessly by our Parliament. But no Constitution can survive without a conscious adherence to its fine checks and balances. Just as Court ought not to )- ,j ____ enter into probl_~ms entwined in the "political thicket", Parliament must also respect the preserve of the courts. The principle_ of separation -of powers is a principle of restraint which "has in it the precept, innate in the prudence ' of self-preservation (even if history has not repeatedly A ~ brought it home), that discretion is the better part of valour" Social Dimensions of Law and Justice-Julius Stone (1966). p. 668. ] Courts have, by and large, come to check their · valorous propensities.

In the name of the Constitution, the Parliament may not also turn its attention from the important B task of legislation to deciding court cases for which it lacks the expertise and the apparatus. If it gathers facts, it gathers facts of policy. If it records findings, it does so without a pleading and without framing any issues. And worst of all, if it decides a Court case, it decides without c hearing the parties and in defiance of the fundamental principles of natural justice. " 28. This raises the issue of the Review Committee's competence to decide the court case. Even a ruling wherein prima D facie cases are withdrawn, the decision to withdraw is final and ~ terminates the case in favour of the accused. A c,ase has thus been decided. The question regarding the Committee's com- . rpetence loses some relevance when I consider that the aggrieved party could still file an appeal against such a decision.

Never- E theless, the Review Committee is an executive body that is making a judicial decision. 29. The Executive appoints the Review Committee. A rnajority of its members belong to the Executive Branch. Under POTA (Repeal) 2004, the Executive's Review Committee has F the power to decide cases. Thus, judicial review has been im- ·~ plicated. Given that judicial review forms part of the basic structure, it is our job to determine if POTA (Repeal) 2004 has gone too far. G 30. In order to reach its decision, the Review Committee can conduct discovery. It has the power to compel parties to ~-~ produce any document. In addition, it can requisition any public record pursuant to the Code of Civil Procedure, 1908. 31. Despite its access to the relevant information, it is not a court and could be more easily swayed by political consider- ~. . ,. _ ations. Owing allegiance to the Executive, the Review Committee could be tempted to decide the outcome of a case based on that.

which is politically expedience. After all, it is an Executive body that is performing a purely judicial decision. At para 8 689 (Chandrachud, J. as he then was) observed that: II•••The· .. separation of powers does not mean the equal balance of powers". says Harold Laski, but the exercise ~ by the legislature of what is purely and indubitably a judicial function is impossible to sustain in the context even of our co-operative federalism which contains no rigid distribution of powers but which provides a system of salutary checks and balances. 32. Ultimately, at para 696, Justice Chandrachud held: ~~... that clauses (4) and (5) of Article 329A are unconstitution~l and therefore void.... " Justice Khanna at para 213 finds 329A(4) to violate the· principle of free and fair elections. Embedded within this principle is the idea that a forum must be provided ~ for the resolution of the dispute. "As a result of the above.

I strike down Clause (4) ofArticle 329A on the ground that it violates the principle of free and fair elections which is· an essential postulate of democracy and which in its turn is a part of the basic structure of the Constitution inasmuch . as (1) it abolishes the forum without providing for anotherforum for going into the dispute ... ... " ) r 33. Citing the decisions of foreign countries wherein election disputes are resolved by the Legislature itself, Justice Khanna did not strike the amendment on the sole ground that it failed to provide for a judicial forum; instead, other forums would have also been acceptable_[paras 198 and 207]. His concern J. --was that no forum whatsoever was provided. ln the instant case, a judicial forum -the High Courts and the Supreme Court- is there for those who are aggrieved by the Review Committee's decision. :~ / 34. Justice Mathew's opinion shows how judicial review A is necessarily linked to the separation of powers doctrine.

By stripping the Court of judicial review of election cases, Article 329A(4) bestows a power on an organ of government that is incapable of providing a just result. Justice Mathew stated at para 325 that: 8 -i ..... it was an essential feature of democracy as established 'y' by the Constitution, namely, (that there should be a) a resolution of an election dispute by an authority by the exercise of judicial power by ascertaining the adjudicative c facts and applying and applying the relevant law for determining the real representative of the people. " 35. At para 327, Justice Mathew holds Article 329A(4) unM constitutional, in violation of the separation of powers. Given that our separation of powers is somewhat flexible, he finds that D t- the Parliament could only remove judicial review by enacting a }'-' constitutional amendment. Para 327 reads as under:- "...

The amending body, though possessed of judicial power, had no competence to exercise it, unless it passed E a Constitutional law enabling it to do so. If, however, the decision of the amending body to hold the election of the appellant valid was the result of the exercise of an 'irresponsible despotic discretion' governed solely by what it deemed political necessity or expediency, then, like a F bill of attainder, it was a legislative judgment disposing of ""! ' a particular etection dispute and not the enactment of a law resulting in an amendment of the Constitution. And, even if the latter process (the exercise of despotic discretion) could be regarded as an amendment of the G Constitution, the amendment would damage or destroy -+ an essential feature of democracy as established by the Constitution, namely, the resolution of election dispute by an authority by the exercise of judicial power by ascertaining the adjudicative facts; the amending body ..

cannot gather these facts by employing legislative +-' process; they can be gathered only by judicial process. " 36. In Minerva Mills (supra}, section 55 of the 42nd Amend- . ment was at issue. Section 55 inserted sub-section (4) and (5) - into Article 368 to bar judicial review of constitutional amend- 8 ments. The Court held that Section 55 of the 42nd Amendment ·. was beyond the amending power and was void "since it removes '-x all limitations on the power of Parliament to amend the Consti- ' tution and confers powers upon it to amend the Constitution so as to damage or destroy its basic or essential features or its basic structure. " Justice Bhagwati, as he then was, struck the Parliament's attempt to immunize all amendments from judicial rev1ew: "... So long as Clause (4) stands, an amendment of the Constitution though unconstitutional and void as transgressing the .

limitation on the amending power of ··{ Parliament as laid down in Kesavananda Bharati's case, ~ would be unchallengeable in a court of law. The consequence of this exclusion of the power of judicial review would be that, in effect and ·substance,· the limitation on the amending power of Parliament would, from a practical point of view, become non-existent and it would not be incorrect to say that, covertly and indirectly, by the exclusion ofjudicial review, the amending power of Parliament would stand enlarged, contrary to the \ \ decision of this Court in Kesavananda Bharati's case.

This would undoubtedly damage the ·basic structure of the Constitution, because there are two essential features of the basic structure which would be violated, namely, the limited amending power of Parliament and the power of judicial review with a view to examining whether any authority under the Constitution has exceeded the limits of its powers, I shall immediately proceed to state the reasons why I think that these two features form part of the basic • structure of the Constitution. " UNIO~ OF INDIA & ORS. ] ~ 37. L. Chandra Kumar v. Union of India (1997) 3 SCC A 261 is another case wherein the Court struck down a constitutional amendment that sought to remove judicial power. This Court reviewed the 42"d Amendment through which the Parliament sought to insert Articles 323-A and 323-8 in the Constitution. [para 5]. Article 323-b (2) empowered the Parliament or 8 the State Legislatures to set up Tribunal to resolve a wide vari- .. ,..

ety of disputes: tax cases, foreign exchange matters, industrial and labour cases, ceiling or urbari property, criminal matters etc. [para 35]. Article 323-8(3)(d) excluded the jurisdiction of all courts, save for the Supreme Court's Article 136 jurisdiction. C · [para 35]. In effect, this provision enabled the Government to divest the lower and High Courts of the bulk of their workload. [para 35]. I 38. The Court held that judicial review, under Articles 226 D and 227 in the High Courts and under Article 32 in the Supreme Court respectively is an essential feature of the Constitution and . ,..... forms part of the basic structure. [para 78]. Thus, it is inviolable. [para 99]. By ousting the higher judiciary of its jurisdiction under Articles 226/227 and 32, the impugned Articles 323-A(2)(d) and E 323B-(3)(d)) violated court's power ofjudicial review.

The Court allowed Parliament and State Legislatures to set up Tribunals, provided the higher judiciary retains its Article 226-227/32 jurisdiction. [para 81]. t- 39. A nine-Judge Bench in/. R. Coehlo (supra) was con- F "1 stituted to clarify the following question of fundamental importance: 'The fundamental question is whether on and after 24th April, 1973 when basic structures doctrine was G propounded, it is permissible for the Parliament under Article 318 to immunize legislations from fundamental rights by inserting them into the Ninth Schedule and, if so, what is its effect on the power of judicial review of the Court. " (para 4) 40. If a law abrogates or abridges a fundamental right (by amendment or by insertion in the gth Schedule), the Court may exercise its judicial review power and examine it on the touchstone of the basic structure doctrine as reflected in Article 21 read with Articles 14 and 9 by application of the "rights" and · "essence of the right" tests.

[See conclusions (i) and (iii)]. The Court in Coehlo observed as under: "The existence of the power of Parliament to amend the Constitution at will, with requisite voting strength, so as to make any kind of laws that excludes Part Ill including power of judicial review under Article 32 is incompatible with the basic structure doctrine. " 41 . ' 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 re- . moved. The trial court no longer has the power to override the Review Committee's decision 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. That is, "...

where the Review Committee is of the opinion that there is no prima facie case for proceeding against the accused," then the case shall be deemed withdrawn. [See POTA (Repeal) 2004, S. 3(a) and (b)]. Where there is some evidence that suggests that a case against the accused might exist, the Review Committee must allow the proceedings to continue. 42. Those who are aggrieved by the Review Committee's decision to withdraw still have judicial recourse under Article 226 of the Constitution. Under this Article, it may take appropriate steps in the High Court (or in this Court) against the Review Committee's decision to withdraw. One cannot say that the aggrieved parties are without a remedy, when those parties can approach the High Court (or. this Court). I make it cle. ar that the High Court should examine the aggrieved parties' cases, if those A parties choose to contest the Review Committee's decision to withdraw. ' 43.

Unlike the provisions at issue in the Election case, Minerva Mills, L. Chandra and I. R. Coehlo (supra), POTA 8 (Repeal) 2004 do not strip the higher judiciary of judicial re- . view. As such, POTA (Repeal) 2004 survives. A violation of separation of powers need not rise to such a level before this Court . ,' will consider it an abrogation of the basic structure. 44. With the constitutional analysis behind us, I recognize c the pragmatic effect of this ruling. It is now up to those who feel aggrieved by the Review Committee's decision to file a writ petition under Article 226 of the Constitution. While a review of. the Review Committee seems cumbersome and redundant, it is nevertheless essential and required. D 45. Under Section 3 of POTA (Repeal) 2004, where no ' prima facie case is made out, the case "shall" be deemed with- ... drawn. It is important to note that POTA (Repeal) 2004 does not expressly reject section 321 of Cr. P. C.

Had the Parliament ~ used a non-obstante clause to preclude the application of section 321 of Cr. P. C. to POTA (Repeal) 2004, POTA 2002 had done in a number of provisions- our analysis would have been much simpler. That said, Section 56 of POTA 2002, whose operation is saved by section 2(2)(a) of POTA (Repeal) 2004, F states that POTA 2002 is to override "anything inconsistent f therewith. " As noted, section 321 of Cr. P. C. is inconsistent with ~ the POTAs, as it makes the Review Committee's decision to withdraw contingent upon the public prosecutor and the Court. G. POTA (REPEAL) 2004 IS A SPECIAL ACT THAT OVERRIDES GENERAL ACTS SUCH AS THE Cr. PC. : 46. In addition, 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, - A· the CrPC itself allows the Parliament to deviate from the Cr. P. C. when necessary. The Cr. P. C.

says that i~ is a general law that is subject to special laws. Sections 4(1) and (2) and (5} of Cr. P. C. read as under: "Section 4(1 ): All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. Section 4(2): All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Section 5: ((Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any --' \ special or local law for the time being in force, or any -41 special jurisdiction or power conferred, or any special form ofprocedure prescribed, by another law for the time being in force. " 47.

The Special Act must be Jeemed to supercede the provisions of the general Act. In Harbans Singh & Others v. The State, AIR 1953 (All. ) 179 at p. 18, the U. P. Private Forests Act (Act No. 6 of 1949) was a special statute that prec~uded ~· Magistrates of the First Class from trying violations under the r Act. Under Schedule Ill of the general Cr. P. C. of 1898, Magistrates of the First Class had the power to try similar offences. The Allahabad High Court held that the special law rnust trump the general and set aside the conviction entered by the Magistrate of the First Class. The Court relied on Section 5 of the ~ ".. . CrPC 1898, from which S. 5 of the·CrPC, 1973 borrowed: "Para 4. It is, therefore clear that the powers conferred under the general provisions of the Code of Criminal Procedure are subject to any special provisions that might A ~ be made with regard to the exercise or regulation of those powers by any special Act.

The special Act having made such provisions with regard to the offences under the said Act must be deemed to supersede the provisions of the B r general Act. " 48. The provisions of the Special Law must prevail and . ,....... the CrPC must give way. In an earlier case, Kripa Ram & Others v. RamAsreyAIR 1951 (All. ) 414, the Allahabad High Court emphasized this principle. The accused had allegedly stolen c mangoes valued at less than Rs. 50. Section 52 of the Village Panchayat Raj Act provided that offences where less than Rs. 50 was at stake were to be tried by the Panchayat Adalat. The provision as to the amount in controversy was special relative to the general provisions of the Penal Code, under which the D Judicial Magistrate convicted the accused. Therefore, the High ~ Court set aside the lower court's conviction and transferred the case to the Panchayat Adalat.

Even where Special Courts had ~ not been constituted and transfer of the case to a non-existing court could lead to lawlessness, the rule of special vis-a-vis E general was to be followed. Paragraph 3 reads as under: "... The fact that the Panchayati Adalats had not been constituted would not affect the provision taking away jurisdiction from the other Courts, although it may result in inconveniences and lawlessness. " F '.. , 49. The Statement of Objects and Reasons of POTA (Repeal) 2004 expressly says that it is special. The POTA, like the TADA before, deviate from the general criminal Codes (the Indian Penal Code, 1860 and the Criminal Code of Procedure, G 1973) and provide special substantive and procedural rules for acts of terrorism. It was first reasoned by the Legislature that ll harsher laws were necessary to combat and deter terrorism.

While reviewing the Constitutionality ofTADA, the Court in Kartar Singh (supra) gave the Parliament a substantial amount of def- erence and upheld all but section 22ofTADA- subject to a few ~ modifications - finding that the Parliament had the legislative competence to make harsh laws for harsh times. [See: Justice Pandian's summary at page 712 at para 368]. SYNOPTIC ANALYSIS OF POTA (REPEAL) 2004: 50. It takes time to give effect to section 321 of Cr. P. C. ·reven when both the public prosecutor and the Court have to decide whether withdrawal is appropriate. Under one reading ~. , ·:___. i " of the statute, withdrawal occurs on the spot. Under the other, it is to languish before the public prosecutor. 51. If the public prosecutor approves of the decision to withdraw, then it is presented to the Special Court for a final decision. Inserting section 321 of Cr. P. C. itself into POTA (Repeal) 2004 defies logic and produces an absurd result.

"The object of the construction of a statute being to ascertain the will of the Legislature, it may be presumed that neither injustice nor . -4: absurdity was intended. " (Owen Thomas Mangin v. Inland Rev- ~ enue ·Commissioner, [1971) 2 WLR 39, p. 42 (PC) (Lord Donovan), as referr