SARDARJI MAGANJI WAGHELA S/O MAGANJI WAGHELA vs UNION OF INDIA THRO SECRETARY

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2009 Supreme(Guj) 59

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
HONOURABLE MR.JUSTICE BHAGWATI PRASAD, HONOURABLE MR.JUSTICE BANKIM.N.MEHTA
SARDARJI MAGANJI WAGHELA S/O MAGANJI WAGHELA - Applicant(s)
Versus
UNION OF INDIA THRO SECRETARY & 106 - Respondent(s)
SPECIAL CRIMINAL APPLICATION No. 504 of 2008
Decided on : 12th /02/2009

Advocates appeared:
MR. S.B. VAKIL, ld. sr. counsel with Mr. Vijay H. Patel of M/s. H.L. Patel, advocates for the petitioner
MR. GOPAL SUBRAMANIAM, ld. Additional Solicitor General with Mr. Harin Raval and Mr. Hriday Buch for respondent No. 1.
MR. KAMAL TRIVEDI, ld. Advocate General with Mr. J.M. Panchal, Special Public Prosecutor & Mr. K.J. Panchal, Additional Special Public Prosecutor for respondent No. 2
MS. NITYA RAMAKRISHNAN, ld. advocate with Mr. S.M. Vatsa and Mr. Rohit Verma for respondent Nos. 3 to 99
DELETED for Respondent(s):

Headnote:
Prevention of Terrorism (Repeal) Act, 2004 - Sections 2(3) and 3(1)(a) - Criminal Procedure Code, 1973 - Section 190 - Constitution of India, 1950 - Article 226 - Prima facie case - Challenged the opinion of Review Committee under Act, 2004 - Sought for quashing notification establishing Review Committee itself - Committee's view is not authorised under statutory function to form a prima facie opinion whether there is a case to proceed against accused - Committee failed to appreciate as to what is prima facie case for proceeding and expressed its opinion on a misconceived view of law as to how it should come to a finding - Challenged - Held, In abstract it is not possible to find a prima facie case petitioner has not referred to any statements of witnesses to sustain its case - It has emphasised that findings on bail applications be considered as res judicata and thus held to be conclusive - We have disagreed with the proposition findings in bail application, if at all are restrictive then they are for forum hunting - Petitioner was very emphatic that cases of individual accused were not examined - Theoretically argued by petitioner that other offences as Section 3(1) and Section 3(3) were not discussed by Committee, thus failed to exercise jurisdiction vested in it - No demonstration was made before us that from any particular evidence a case is made out - Counsel for petitioner that he has not read evidence purposefully maybe to keep things vague - When individual case was not pressed it only made an option for collective offence to be enquired and that means conspiracy, which has been held to be not pressed thus there has been proper exercise of jurisdiction as required - Shocking incident as it is capable of being treated as a serious criminal act falls short of the requirement of an act of terror - No infirmity in the opinion of Committee, as challenged - Petition dismissed

JUDGMENT

(HONOURABLE MR.JUSTICE BHAGWATI PRASAD)

1. In the present petition, the petitioner has challenged the opinion of the Review Committee (hereinafter referred to as âSthe Committeeâý formed under the Prevention of Terrorism (Repeal) Act, 2004 (hereinafter referred to as the âSRepeal Actâý. In the petition, the following prayers were made:

(a). Issue a writ or order or direction of an appropriate nature quashing the notification dated 4.11.2004 establishing Review Committee itself, being Annexure-A to the writ petition;

(b) Issue a writ or order or direction of an appropriate nature quashing the report dated 16.5.2005 passed by the Review Committee in FIR I-9 of 2002 registered with Godhara Railway Police Station being Annexure-B to the writ peititon.

1.2. Out of the prayers made, first prayer has been given up. The case is argued to seek the remaining relief.

1.3. Learned Senior Counsel Mr. S.B. Vakil started his arguments and submitted that he shall be addressing the Court on the following points including others..

(1) There is no opinion expressed by the Committee which can be considered to be a statutory opinion, as Section 2(3) of the Repeal Act contemplates, namely there is a prima facie case for proceeding against the accused.

(2) The view of the Committee that the incident did not take place as part of conspiracy as envisaged under the provision of the Prevention of Terrorism Act, 2002 (hereinafter referred to âSPOTAâý) does not tantamount to say that there is no prima facie case to proceed against the accused under POTA.

(3) The Committee had no jurisdiction to issue any direction that the persons may be tried under the particular provisions of law.

(4) The Committee was not competent to express any view that the accused persons shall not be tried under POTA because it was possible only if the Committee had formed a requisite opinion.

1.4. Learned Senior Counsel Mr. S.B. Vakil has submitted that the Committee has not expressed any opinion qua each accused separately. The Committee's view is not authorized under the statutory function to form a prima facie opinion whether there is a case to proceed against the accused. The Committee has failed to appreciate as to what is prima facie case for proceeding and expressed its opinion on a misconceived view of law as to how it should come to a finding.

1.5. Learned Counsel has submitted that so far as accused persons at Nos. 49, 50, 51, 52 and 71 are concerned, the question was barred by res judicata and the Committee could not have taken a contrary view. Any view of the Committee contrary to the view of the High Court is required to be held bad and contrary to this case of law.

1.6. Learned Counsel has further submitted that the High Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, can only quash the decision of the Committee but will not substitute its own view.

1.7. It is submitted that the opinion which the Committee was asked to form under Section 2(3) of the Repeal Act was qua each of the accused, it cannot be collective. Thus the Committee having not addressed its opinion qua each accused, it has misdirected itself. Language of Section 2(3) of the Amendment Act shows that opinion qua individual accused should have been formed as is evident from the statutory provision.

1.8 It was required to be opined whether the proceedings against all the accused or individual accused are required to be sustained. There is no prima facie case was to be stated in the true spirit or against individual accused, a case is not made out as delineated in the Section. The opinion formed is ultra vires. It does not say all the accused. Difference between article âSaâý and âStheâý was required to be understood and explained, while expressing opinion.

1.9. It refers to the accused in the proceeding. The Legislature does not intend that simply because there may be no case to proceed against one or some accused. It will not proceed against all of them.

1.10. The opi

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