Holding

The High Court was not justified; its order is set aside and the appeal is remitted for fresh consideration.

Summary

Idrishan Yakubhan Pathan faced two prosecutions under the Prevention of Terrorism Act (POTA), Case No. 8 and Case No. 12 of 2003. He appealed both decisions (Criminal Appeals Nos. 1287 and 1288 of 2004). The Gujarat High Court acquitted him in Case No. 8 and dismissed his appeal 1287. Regarding Case No. 12, the High Court also dismissed his appeal 1288, reasoning that the matter was already concluded because of the earlier acquittal, despite the two cases being distinct. The Supreme Court held that the High Court was not justified in treating the second appeal as moot, set aside its order, and remitted the appeal concerning Case No. 12 back to the High Court for fresh consideration, without expressing any view on the merits.

Issues considered

Whether the Gujarat High Court was justified in concluding that the appeal relating to POTA Case No. 12 of 2003 was moot on the basis of the appellant's acquittal in POTA Case No. 8 of 2003.

Legislation cited

Explosive Substances Act, 1908s. 3, s. 4, s. 6
Indian Penal Code, 1860s. 120(B), s. 286, s. 307, s. 337

Subjects

POTAPrevention of Terrorism Actappealacquittalprocedural errorbailspecial courtcriminal appealremandjurisdiction

Judgment

IDRISHAN YAKUBHAN PATHAN A
v.
STATE OF GUJARAT TIIROUGH PUBLIC PROSECUTOR

JULY 27, 2007

[DR. ARIJIT PASAYAT AND D.K. JAIN, JJ.]
B

f Prevention of Terrorism Act, 2000; Ss. 3(3), 4; 20, 21(2){b), 22(3),
34(1)(4)/Penal Code, 1860; Ss. l 20(B), 286, 307 and 337/Explosive
Substances Act, 1908; Ss. 3, 4 & 6: C
Charges under Prevention of Terrorism Act-Initiation ofproceedings
against accused-Challenging the order of Special Court, POTA, two appeals
filed by the accused-Acquitting him in one of the cases under POTA, High
Court rejected his prayer for bail in the other case under POTA and dismissed
the appeal-On appeal, Held: High Court was not justified in concluding D
the matter in the later case in POTA in view of the observations made in the
former case-Hence, the matter relating to criminal appeal in the later case,
remitted to the High Court for consideration afresh.

There were two proceedings initiated against the accused-appellant.
The first was POTA Case No.08 of2003 and another was POTA Case No. 12 E
of 2003. Challenging the order of the Designated Judge, Special Court
(POTA), two appeals were filed by the appellant, ie. Criminal Appeal Nos.1287
of2004 and 1288 of2004. The appellant has been acquitted from the charges
levelled against him in POTA Case No. 8 of2003. So far as the prayer for

----- ., bail in POTA Case No.12 of2003 is concerned, certain observations were
made by the Court while dismissing Criminal Appeal No.1287 of2004. Hence
the present appeal.
F

Allowing the appeal, the Court

.~.
HELD: 1.1. The High Court noted that because of acquittal in POT A
Case No.8 of2003 the appeal was infructuous. Obviously, the same relates G
to Criminal Appeal No.1287 of2004. So far as the Criminal Appeal No.1288
of 2004 is concerned, the same relates to the POT A Case No.12 of 2003.
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The High Court was, therefore, not justified in holding that the matter in

605 H
606 SUPREME COURT REPORTS [2007) 8 S.C.R.

A POTA Case No.12 of 2003 was concluded for various reasons in view of the
observations made in the appeal relating to POT A Case NO. 8 of 2003.
(Para 3) (607-8-C)

1.2. In Criminal Appeal No. 1288 of 2004 which is related to POTA
Case No.12 of 2003, w'tether any relief can be granted by the concerned Court
B in that POTA Case was not considered by the High Court. The confusion
ar"se before the High Court relating to the case numbers. In the
circumstances, the impugned order is set aside and the matter relating to
Criminal Appeal No.1288 of 2004 is remitted to the High Court to consider )..
the matter afresh in accordance with law. (Para 4) (607-D-F)
c 2. It is clarified that no opinion has been expressed on the merits of the
case. (Para 5) (607-F)

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 943 of
2007.
D From the Judgment & Order 08.01.2007 of the High Court of Gujarat at
Ahmedabad in Criminal Appeal No. 1288 of2004.

Kamini Jaiswal for the Appellant.

1-Iemanfika Wahi for the Respondent.
E
The Judgment of the Court was delivered by

DR. ARIJIT PASAYA T, J. I. Leave granted.

2. Challenge in this appeal is to the order passed by the Division Bench
F of the Gujarat High Court dismissing the appeal filed under Section 34(1 )(4)
of the Prevention of Terrorism Act, 2000 (in short the 'POTA'). There seems
to be some confusion about the factual position and therefore the details are
not necessary to be noted.

G 3. Undisputedly, the challenge before the High Court was to the order
dated 7.7.2004 passed by the Designated Judge, Special Court (POTA)
Ahmedabad. There were two proceedings initiated against the appellant. The
first was Pota Case No. 08 of 2003 arising out of complaints, namely, I.C.R.
No. 184 of2002 registered at Kagdapith Police Station, I.C.R. No. 116 of2002
registered at Vejalpur Police Station and I.C.R. No. 244 of2002 registereCt at
H Satellite Police Station for offences punishable under Sections 120(8), 307,
IORISHAN YAKUBHAN PATilAN v. STATE OF GUJARAT THROUGH PUBLIC PROSECUTOR [PASA YAT, l.) 60~

337, 286 of the Indian Penal Code, 1860 (in short the 'IPC') read with Sections A
3, 4 & 6 of Explosive Substances Act, 1908 (in short the 'Explosive Act') and
under Sections 3(3), 4,20, 21(2)(b) and 22(3) of the POTA. It is to be noted
that two appeals were filed by the appellant i.e. Criminal Appeal Nos.1287 of
2004 and 1288 of 2004. The appellant has been acquitted from the charges
leveled against him in POTA Case No.8 of2003. So far as the prayer for bail B
in POTA Case No.12 of 2003 is concerned, certain observations were made
by the Court while dismissing Criminal appeal No. 1287 of2004 on 21.9.2004.
The High Court noted that because of acquittal in POTA Case No.8 of2003
wherein further revival in that case the appeal was infructuous. Obviously, the
same relates to Criminal Appeal No. 1287 of2004. So far as the Criminal appeal,
No.1288 of 2004 is concerned, the same relates to the POTA Case No.12 of C
2003. The High Court was therefore not justified in holding that the matter
was concluded for various reasons in view of the observations made in the '
appeal relating to POTA Case No.8 of 2003.

4. A perusal of the documents on record shows that Criminal Appeal
No.1288 of2004 related to POTA Case No.12 of2003. Whether any relief can D
be granted by the concerned Court in that POTA case was not considered. ·
I,._ The confusion arose before the High Court relating to the case numbers.
There is no dispute that <::;riminal Appeal No.1288 of 2004 before the High ,
Court related to POTA Case No. I 2 of 2003. It appears that the High Court
pennitted the appellant to take a prop~r proceeding seeking his release on bail E
so far as POTA Case No. 12 of2003 is concerned. The High Court apparently
failed to notice that Criminal Appeal No.1288 of 2004 related to POTA Case
No.12 of2003. In the circumstances we set aside the impugned order and remit
the matter relating to Criminal Appeal No.1288 of 2004 to the High Court to
consider the matter afresh in accordance with law.
F
5. We make it clear that we have not expressed any opinion on the
merits of the case. The appeal is allowed to the aforesaid extent.

S.K.S. Appeal allowed.

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