STATE Vs. IRASHAD AHMAD MALIK AND ORS.

JUDGEMENT

(1.) THIS appeal has been preferred by the State against the order dated 13.10.2005 passed by the learned Special Judge, POTA. The impugned order reads as under:

(2.) THE same view is discernible from the decision of the Gujarat High Court which had placed reliance on the decision of the Division Bench of the Madras High Court in the case of Government of Tamil Nadu v. Union of India and Ors. being writ petition Nos. 1238 to 1240 of 2004 decided on 4.2.2004. The Madras High Court had observed that if the Review Committee comes to the conclusion that the case is fit to be withdrawn from prosecution under POTA, it can address the State Government which, in turn, has to instruct the Public Prosecutor to invoke Section 321 of Code of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 Procedure and that the role of the Review Committee is limited only that far and no further. It was further observed that 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 in respect of Section 321 of Code of 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. Apparently the State of Tamil Nadu challenged the said decision of the Madras High Court by filing petitions of Special Leave to appeal before the Supreme Court being Nos. 868 -870 of 2004 titled as Government of Tamil Nadu v. Union of India and Ors. decided on 8.3.2004. While dismissing the said special leave petitions, the Supreme Court, inter alia, took the view that the High Court had correctly held that the challenge to the constitutional validity of the provisions of Section 60(4) to 60(7) could not be sustained. However the Supreme Court also held that the High Court had correctly held that the directions given by the Review Committee could only be subject to Section 321 of Criminal Procedure Code. Based on the observations of the Division Bench of the Madras High Court as well as of the Supreme Court, the Gujarat High Court in Anusuyaben Sadashiv Jadav (supra), inter alia, took the following view:

(3.) THE learned Counsel appearing for the respondent, however contended that the position is now somewhat different in view of the repeal of POTA as well as in view of the recent decision of the Supreme Court in Mohmadhusen Abdulrahim Kalota Shaikh v. Union of India and Ors. : 2008 (13) Scale 398.