Supreme Court of India
ANUSUYABEN SADASHIV JADAV AND ANR.versusUNION OF INDIA AND ORS.
- Citation
- 2008 INSC 1367
- Decided
- 1 December 2008
- Disposal
- Disposed off
Holding
In view of the deemed withdrawal of POTA cases, bail applications must be reconsidered afresh, accused with no prima facie case cannot be tried under POTA, and all non‑POTA offences shall be tried by regular Sessions Judges under section 33, with cases transferred within a month.
Summary
The petitioners, accused under the Prevention of Terrorism Act (POTA) and other offences, had their bail applications rejected by Special POTA Courts. The Supreme Court, upholding the constitutionality of sections 2(3) and 5 of the Prevention of Terrorism (Repeal) Act, 2004, deemed the POTA cases withdrawn. Consequently, the Court held that bail applications must be reconsidered afresh and, where the Central POTA Review Committee finds no prima facie case, the accused cannot be tried under POTA. Non‑POTA offences against the accused are to be tried by regular Sessions Judges under section 33 of POTA, and all pending POTA cases are to be transferred from Special Courts to the appropriate Sessions Court within one month. The petitioners were allowed to withdraw their bail applications and may re‑apply before the Sessions Court, and the matters were disposed of.
Issues considered
- Whether bail applications filed by POTA accused after the Supreme Court's judgment upholding sections 2(3) and 5 of the Repealing Act should be considered afresh.
- Whether accused for whom the Central POTA Review Committee records no prima facie case can be tried under POTA.
- Whether non‑POTA offences against the accused can be tried by regular Sessions Courts under section 33 of POTA.
- Procedure for transferring pending POTA cases from Special POTA Courts to Sessions Courts.
Legislation cited
Subjects
bailPOTAPrevention of Terrorism (Repeal) Actdeemed withdrawalSpecial Courttransfer of casesSection 33Review Committeenon‑POTA offences
Judgment
J
[20081 16 S.C.R. 900
A ANUSUYABEN SADASHiV JADAV AND ANR. ''j- '
v.
UNION OF INDIA AND ORS.
(Crl. M.P. No. 5643-5647 of 2007)
DECEMBER 1, 2008
B
[K.G. BALAKRISHNAN, CJ., R.V. RAVEENORAN AND
t>ALVEER BHANDARI; JJ.] -f-
BAIL:
c
Applications for bail by accused of POTA and oth(3r
offences - HELD: In the light of judgment of Supreme Court
upholding constitutionality of ss.2(3) and (5) of Prevention of
Terrorism (Repeal) Act and the deemed withdrawal of cases
under POTA; bail applications filed by accused have to be
D
considered afresh - In all these cases wherever Review
Committee has recorded its opinion that.there is no prima -4
facie case for proceeding against accused, they are not to be
tried under provisio(ls of. POTA - However,· these accused
have also been charged with several non-PO TA offences and
E these offences will have to be -tried by regular Sessions .
Judges (or CBI Court) - By virtue of Section 33 of the PO TA,
the Sessions Judge has to proceed with these cases as if he
had taken cognizance of these offences - The POTA Special
Judges before whom cases of applicants are. pending are
F directed to send all those cases to respective Sessions Judge
within a period of one month of receipt of a copy of this order
- This is subject to the order, if ariy, that may be passed by
any competent court against the opinion of Central POTA
Review Committee·- All these petitions/applications for bail!
G fmpleadment are permitted to be withdrawn with liberty to
move for bail before the Court of Session concerned after the ,;>..._
records are received on transfer - In· the event of filing such
applications, Sessions Judge shall consider the same on
merits untrammelled by the observations, if any, made by
H 900
ANUSUYABEN SADASHIV JADAV AND ANR. v.UNION OF 901
INDIA AND ORS.
superior courts in' liny bail application filed by the respective A
petitioners - POTA Case No.12 against Crime N0.6 of 2003
in the Crime Branch, Ahmedabad city and POTA Case No.10
against Crime No.272103 in Ellisbtidge Police Station, C.B.I.
Court, on transfer are to be tried by the Sessions Judge
having jurisdiction - It has been stated that these petitioners B
are und{Jr-trial prisoners since April, 2003 - The respectivf!
Sessions Judge will consider this fact and dispose of the
matters as expeditiously as possible - Prevention of
Terrorism Act, 2002 - s.33 - Prevention of Terrorism (Repeal)
Act, 2004 - ss. 2(3) and (5) - Transfer of cases pending before c
Special Courts under POTA to regular Court of Session.
CRIMINAL APPELLATE JURISDICTION : Crl. M.P. Nos.
5643-5647 of 2007.
IN
D
Criminal Appeal Nos. 1651-1652 of 2008.
1 WITH
Crl. M.P. No. 4506/2007@ Crl. A. No.1113/2005, 5639-5642,
564a-49/2007, 5981-5986/2007, 8315/2007 and 15724-15725/ E
2008 IN Crl.A. Nos.1651-1652/2008.
Sheela Goel for the Petitioners.
Sushil Kumar, Sandhya Goswami (for B.K. Prasad)
Sushma Suri, P. Parmeswaran, Hemantika Wahi, Pinky Behra, F
K. Enatoli Serna, Somnath, Kamini Jaiswal, Nitya
Ramakrishnan, Trideep Pais (for M/S. K.J. John & Co.) for the
Respondents.
The following Order of the Court was delivered :
G
ORDER
CRL.M.P.NOS.4506/2007@ CRL.A.No.1113/2005, CRL.
M.P. NOS.5639, 5640, 5641 AND 5642 OF 2007 @
CRL.A.NOS.1651-1652/2008, which are connected cases, are H
902 SUPREME COURT REi=>bFff§
A also taken on board, at the f~tjuest of learned counsei.
2. These are tJall applicatit>hstappii'eatiofi§ fGr
impleadment by the accused petitioners filed in POTA/criminal
cases pending on the files of Special POTA Judge; Sabarmati,
Ahmedabad· and other co.urts in regard Hf f'QTA cases
B registered with Godhra police station, Crime Brancll,
Ahm~d~baa t?!lty and ~llisbridge Pol.ice Station, Ahmadabad.
In some oHhese ca§~§. bail §~~li@atl9n§ .WE!Jre rejected by the
Special Judge and in s6fii@ ~§ses th@ sEim~ were rejected by·
the High. Court and in some GfH@t §Ei§es by this Court. ·
c
3; Subsequently the Prevefltlsn of Terrodsm. (Repeal) Act,
2004 (for short 'the Repealing Act') was enscted. Certain
provisions of the said Act were challenged. This Court, by
judgment dated 21.15.266~; Uph@ltl the validity 'of Section 2(3)
o and (5) of the Repealing Act iiihd alsa jj§ssed the following
directions :
1. "the judgments under challenge ta ttie extent they
E
declare Section 2(3) and (5) of the Repealing Aot ·
are not unconstitutional, are upheld; r
t;-
2. ·the judgments undet ap~eal are set aside to the
extent they hold that in spite of deemed withdrawal l
of the cases, the procedure ~nder Section 321 of
the Code has to be followed for withdrawal;
3. the appeals filed by POTA accused are allowed in
F
part accordingly. The appeals by the relatives of
victims are disposed of reserving liberty to
challenge the opinions of the Review Committee,
wherever they are aggrieved;
G 4. We do not express any opinion on the merits of the
cases of the POTA accused or in regard to the '\-
opinions expressed by the Review Committee."
In the light of the said judgment, upholding the deemed
withdrawal of cases under POTA, the bail applications filed by
H
ANUSUYABEN SADASHIV JADAV AND ANR. v.UNION OF 903
INDIA AND ORS.
the accused have to be considered afresh. In all these cases A
wherever the Review Committee has recorded its opinion that
there is no prima facie case for proceeding against the
· accused, the accused are not to be tried under the provisions
of the POTA. However, these accused hav~ also been charged
in regard to several non-POTA offences and these offences will B
have to be tried by regular Sessions Judges (or CBI Court).
By virtue of Section 33 of the POTA, the Sessions Judge has
to proceed with these cases as if he had taken cognizance of 1
these offences.
4. We, therefore, direct the POTA Special Judge, C
Sabarmati, Ahmedabad or other courts where the cases of
applicants are pending to send all those cases to the respective .
Sessions Judge within a period of one month of receipt of a •
copy of this order. This is subject to the order, if any, that may
be passed by any competent court against the opinion, of D
Central POTA Review Committee.
t 5. All these petitions/applications for bail/impleadment are ,
, permitted to be withdrawn with liberty to move for bail before
the concerned Sessions Court after the records are received E
on transfer. In the event of 1filing such applications, the Sessions
Judge shall consider the same on merits untrammelled by the
observations, if any, made by the superior courts in any bail
application filed by these respective petitioners.·
6. POTA Case No.12 against Crime N0.6 of 2003 in the F
Crime Branch, Ahmedabad city and POTA Case No.10 against
Ci-ime No.272/03 in Ellisbridge Police Station, C.8.1. Court, on
transfer are to be tried by the Sessions Judge having
jurisdiction.
(
G
7. Learned counsel for the petitioners submit that these
petitioners are under-trial prisoners since April, 2003. The
respective Sessions Judge will consider this fact and dispose
of the matters as expeditiously as possible.
RP. Matters disposed of. H
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