2005 (11) TMI 513 - SC - Indian Laws

Accused can face prosecution under POTA Section 3(3) and 4(b) with Arms and Explosives Act charges

The SC partially allowed the appeal, setting aside the POTA Review Committee's order and holding that accused persons could be prosecuted under Section ... Seeking transfer of cases pending against the accused persons from the Special Judge, Kanpur Nagar U.P. to the Designated Court in Delhi - apprehension of likelihood of miscarriage of justice in the State of U.P - Withdrawal of the POTA order by the State Government - challenged the order passed by the POTA Review Committee - Grant of bail to accused - Meaning of word 'hazardous' - defines 'lethal weapon' - possession of the weapons and explosive substances - HELD THAT:- The role given to the Review Committee under sub-section (4) of Section 60 is very limited and it has only to see whether there is a prima facie case for proceeding against the accused under the Act or not. The Review Committee has traveled beyond its scope, the sufficiency of evidence cannot be gone into by the Review Committee. It is also not the job of the Review Committee whether confession is admissible or not. Role assigned to Review Committee is very limited and if the prima facie case connects the accused on the basis of the material with the prosecution then it is not for the Review Committee to dilate on that as if they are trying the cases under the Act. As we have already mentioned above that we need not enter into the political controversy that whether first order passed was politically motivated or the second order passed was also equally politically motivated by other party in power, we do not want to go into these questions. The use of the Act for personal benefit of the political parties has to be condemned in no uncertain terms. This Act cannot be used for the political ends; it is meant for the benefit of the nation so that the terrorists activities do not disturb the sovereignty or integrity of the nation. So far as this case is concerned, we are of the opinion that there is prima facie case for prosecuting the accused persons. These accused persons were charged under Section 3(3) read with Section 4 (a)(b) of the Act. But so far as Section 4(a) is concerned, for reasons mentioned above, it cannot proceed now. But it can proceed so far as under Section 3(3) & Section 4(b) of the Act is concerned along with Arms Act & Explosives Act. Therefore, we allow this appeal in part. We set aside the order of the Review Committee and hold that the respondents can be prosecuted under Section 3(3) and Section 4(b) of the Act and other provisions of the Explosive and Arms Act. The accused, Mr. Udai Pratap Singh and Raghuraj Pratap Singh alias Raja Bhaiya may surrender before the Judge, Designated Court, under POTA Act/Sessions Judge, Kanpur Nagar within a week and apply for bail. In case they fail to appear before the Judge, the Judge, Designated Court under POTA Act, Kanpur Nagar get them arrested. So far as Akshay Pratap Singh is concerned, as he is already on bail, he need not to surrender. However, any observation made in this order will not prejudice their trial. We failed to understand why the affidavit has not been filed by respondents themselves. It is alleged that accused Raghuraj Pratap Singh alias Raja is an independent MLA who is supporting the present government and is a Minister in the government. After going through the transfer petition and counter affidavit on behalf of the respondents, we are of the opinion that there is likelihood of miscarriage of justice in the background mentioned above. It is alleged that murder of Shri Rajender Yadav has taken place and his younger brother is connected with this case. Therefore in the interest of justice both these cases be transferred to any other court where, in a proper atmosphere, the matter can be dealt with fairly. In the interest of justice, we direct that criminal case No.3/2003 in crime case No.10/03 under Sections 3 & 4 of POTA Act titled as State vs Udai Pratap Singh, Raghu Raj Pratap Singh @ Raja Bhaiya and Akshya Pratap Singh @ Gopalji, and case No. 113/2002 & 209/2002 under Section 2/3 of U.P. Ganster & Anti Social Activities(Prevention) Act, 1986 titled as State of U.P. vs. Udai Pratap Singh, Raghu Raj Pratap Singh @ Raja Bhaiya & Akshya Pratap Singh pending in the Court of Special Judge(Gangster Act), Allahabad, U.P. be transferred to a Special Judge in M.P. Let the Hon. Chief Justice nominate any Special Judge to try these cases. The transfer petitions are accordingly allowed. Issues Involved:1. Withdrawal of POTA order by the State Government.2. Challenge to the POTA Review Committee's order.3. Grant of bail to accused Akshay Pratap Singh.4. Request for transfer of cases from U.P. to Delhi.Detailed Analysis:1. Withdrawal of POTA order by the State Government:The writ petitions challenged the withdrawal of the POTA order against the accused by the State Government on 29th August 2003. The court examined the validity of this withdrawal and found that the political changes influenced the decision to revoke the POTA order. The court held that the withdrawal order and the consequential application by the public prosecutor for withdrawing the cases were not sustainable. The court emphasized that the Public Prosecutor must act independently and not under political influence, as established in previous judgments (1983(1) SCC 438, 1980(3) SCC 435, 1996(2) SCC 610, 2002(3) SCC 510).2. Challenge to the POTA Review Committee's order:The Special Leave Petition (Crl) 5609 of 2004 challenged the POTA Review Committee's order dated 30.4.2004, which directed the release of the accused under Section 60 of POTA. The court analyzed the provisions of POTA, particularly Sections 3 and 4, and found that the Review Committee had erred in its interpretation. The court held that the possession of hazardous explosive substances and lethal weapons like AK-56 by the accused fell under Section 4(b) of POTA, which does not require the area to be notified. The Review Committee's order was set aside, and the court directed the prosecution of the accused under Section 3(3) and Section 4(b) of POTA, along with other provisions of the Explosive and Arms Act.3. Grant of bail to accused Akshay Pratap Singh:The SLP (Crl) 1521 of 2004 challenged the High Court's order granting bail to Akshay Pratap Singh. The court, while dismissing the petition, noted that the accused had already been in detention for a long time and did not interfere with the bail order. However, the court stated that the observations made by the High Court were contrary to its findings.4. Request for transfer of cases from U.P. to Delhi:The Transfer Petitions (Crl) Nos. 82-84 of 2004 sought the transfer of cases from the Special Judge, Kanpur Nagar U.P., to the Designated Court in Delhi, citing the likelihood of miscarriage of justice in U.P. due to political influence and threats to witnesses. The court agreed that there was a likelihood of miscarriage of justice and directed the transfer of the cases to a Special Judge in M.P., to be nominated by the Chief Justice.Conclusion:The court allowed the appeal in part, setting aside the POTA Review Committee's order and directing the prosecution of the accused under relevant sections of POTA, the Explosive Act, and the Arms Act. The withdrawal order by the State Government was quashed, and the transfer petitions were allowed to ensure a fair trial.