Anusuyaben Sadashiv Jadav and Anr. v. Union of India and Ors.

Judgment

CRIMINAL APPELLATE JURISDICTION : Crl. M.P. Nos. 5643-5647 of 2007. IN Criminal Appeal Nos. 1651-1652 of 2008. 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, 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 : 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 SUPREME COURT REi=>bFff§ 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 POT A/criminal cases pending on the files of Special POTA Judge;

Sabarmati, Ahmedabad· and other co.urts in regard Hf f'QTA cases 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. 3; Subsequently the Prevefltlsn of T errodsm. (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 declare Section 2(3) and (5) of the Repealing Aot · are not unconstitutional, are upheld; 2. ·the judgments undet ap~eal are set aside to the extent they hold that in spite of deemed withdrawal 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 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;

4We do not express any opinion on the merits of the cases of the POT A 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 POT A, the bail applications filed by r t;-l ANUSUYABEN SADASHIV JADAV AND ANR. v.UNION OF 903 INDIA AND ORS. the accused have to be considered afresh. In all these cases 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 POT A. However, these accused hav~ also been charged in regard to several non-POT A offences and these offences will have to be tried by regular Sessions Judges (or CBI Court). By virtue of Section 33 of the POT A, 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, 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 Central POTA Review Committee. t

5All 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 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.·

6POTA Case No.12 against Crime N0.6 of 2003 in the 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.

7Learned 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.