RANJANA DESAI, J.

( 1 ) RULE in criminal Writ Petition No. 2363 of 2005 and criminal Appeal No. 789 of 2005 is admitted. The respondents waive service. By consent of the parties, taken up for hearing forthwith.

( 2 ) CRIMINAL Writ Petition No. 2363 of 2005 and Criminal Appeal No. 789 of 2005 involve common questions of law and facts and, therefore, they can be disposed of by a common judgment.

( 3 ) THE petitioner in Criminal Writ petition No. 2363 of 2005 is original accused 5 and the appellant in Criminal Appeal No. 789 of 2005 is original accused 4 in POTA Special case No. 1 of 2004 which is being tried by the special Court constituted under the Prevention of Terrorism Act, 2002 (for short, "the POTA 2002" ). for convenience, it would be better to refer to the petitioner in the writ petition and the appellant in the appeal as per their status in the special case. The accused are being tried along with other accused for offences under sections 3, 4, 5 and 20 of the POTA 2002 and also under the Explosive Substances Act, Arms act, Damage to Public Property Act and the indian Penal Code (for short, "the IPC" ). According to the accused, during the pendency of this case, the Centra! Pota Review committee (for convenience, "the said committee") directed them to represent their case before it in person or through their advocate. The accused represented themselves before the said Committee through their advocate. On 14/6/2005, the said Committee communicated its order to the Chief Secretary of the Government of Maharashtra and to the accused. It is stated in this order that after examining the available material on record and after hearing the counsel for the parties, the said Committee had passed order dated 10/5/ 2005 wherein it has directed the State of maharashtra to proceed in accordance with clause (a) of sub-section 3 of section 2 of the prevention of Terrorism (Repeal) Act, 2004 (for short, "the Repeal Act") in respect of accused 4 and 5. A copy of the order was also annexed to the said order.

( 4 ) MISC. Application No. 44 of 2005 and Misc. Application No. 42 of 2005 were preferred by accused 4 and 5 respectively in the Special Court praying that they may be discharged from the said case. The Special court by its order dated 11/8/2005 rejected the said applications. The learned judge took a view that the said Committee is a creation of the legislature to prevent continuance of vindictive prosecutions against the accused and its object is not to stultify the pending trial where charges are framed by a court of law after considering the material. It is further observed that ultimately it is for the public prosecutor to apply his mind independently to the case. Even if the State Government is willing to withdraw the case, it is the public prosecutor who has to take the ultimate decision as per the provisions of the Criminal procedure Code (for short, "the Code) and it is for the Special Court to decide whether the plea of the public prosecutor to withdraw the case is acceptable or not. The learned judge was of the opinion that the direction given by the said Committee cannot create a right in favour of the accused. According to the learned judge, the application based on the report of the said Committee cannot create a right in favour of the accused and the application based on the report of the said committee is not maintainable. The learned judge observed that the accused were not entitled to seek discharge as the charges are framed long back and witnesses are being examined. This order is challenged before us by accused 4 and 5.

( 5 ) ACCUSED 4 has preferred the criminal appeal under section 34 of the POTA 2002 and has prayed that he may be discharged from the charges in the special case in the light of the order of the said Committee. Accused 5 has preferred the writ petition and has, inter alia, prayed that in the light of the order of the said Committee, the respondents may be directed to withdraw the charges un