|COURT||Supreme Court of India|
|JUDGES/CORAM||Justice B.N. Agrawal and Justice A.K. Mathur|
|DATE OF JUDGEMENT||10.11.2005|
This is one of the important cases which must be contextually understood about the political vendetta of malafide exercise of powers of changing Governments of the State of Uttar Pradesh (UP) i.e. change of Mayawati’s Government (the then Chief Minister) to Mulayam Singh’s Government affecting the administration of justice.
Legislature has enacted a Union Law i.e. Prevention of Terrorism Act (POTA), 2002 and has delegated its authority by a notification saying that the law would come into effect in the State of U.P. only on the date of publication of such law in the Official Gazette. Section 5 of U.P General Clauses Act, 1904 (1 of 1904) contemplate about the applicability to notifications affecting rights of the parties. Since this is a prohibitory notification, therefore, it is necessary to be published by notifying about the ‘possession of certain kinds of arms in the notified area that it is prohibited’. This process is called as the ‘delegated legislation’. The Supreme Court in ITC Bhadrachalan Paper Boards v. Mandal Revenue Officer, held that the requirement of publication in the Gazette of an exemption given under Section 11(1) of the AP Non-Agricultural Lands Assessment Act 1963, was mandatory and not directory.
The facts of the case are as follows: The brief facts of the case are: the police officials have raided the house of Udai Pratap Singh for execution of a warrant of arrest under Sections 2/3 of the Gangsters Act. Police officials found Udai Pratap Singh with an AK-56 rifle and when he was asked about producing the license, he could not. It was also disclosed that a conspiracy was hatched by Udai Pratap Singh to create a terror after killing some VIPs including the then Chief Minister Mayawati. The witness was murdered when he stated to the police that Raghuraj Pratap Singh and Akshay Pratap Singh were also associated in the conspiracy who brought AK-56 rifle and handed over to Udai Pratap Singh. On this basis, the State Government granted permission from a FIR filed by the deceased father to launch prosecution under Section 50 of POTA. Thereafter, political events took a turn i.e. new government led by Mulayam Singh Yadav came into power and had revoked the order passed by the Mayawati’s Government. Meanwhile, the accused also filed a review petition under Section 60 of POTA before the Review Committee.
The main issues in the case were:
- Whether possession of weapons and explosive substances are for the preparation of a terrorist act or not?
- Whether Section 4(a) of the Arms Act in a notified area would attract this case?
- Whether prosecution under Section 4(b) the Act can be laid down due to the possession of hazardous explosives or lethal weapons?
Summary of court decision and judgment
The Court held that, the Review Committee has also has entered into the merit of the matter that accused persons Raghuraj Pratap Singh alias Raja Bhaiya, Udai Pratap Singh and Akshay Pratap Singh alias Gopalji cannot be connected with the recovery of these catchy of arms. The role of the Review Committee is very limited and the Review Committee has to see a prima facie case and cannot enter into the merit that whether ultimately the conviction will be entailed or not or the evidence is so weak to connect the other accused persons. 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 travelled 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.
The committee’s decision saying there were no case against the applicants under POTA and no prima facie case to be found under Section 3 and 4 of POTA seems to only legitimize the order given by Mulayam’s Government to release all the three applicants. The reasons given by the review committee were unreasonable for not making the applicants to be liable under section 4(a) of POTA. The committee said that it is not based on the principles of natural justice and administrative discretion which is worth highlighting about the decision given. One of the important grounds of natural justice is that the person who is going to be convicted under any law should have the prior knowledge of that law on the violation of which he can be convicted in accordance with law. In this case, the arrest was performed without prior notice which is nothing but it is said to be against the principles of natural justice.
The review committee has only concentrated with regard to the question of Section 4(a) that whether the unauthorized possession in a notified area would attract this provision. It did not examine the matter with reference to Section 4(b) of the Act for which they may be liable. Here, the intention of the legislature is important for using Section 4(a) and delegating this provision and then subsequently the provision being questioned before the law for its application when we already have an express provision i.e. Section 4(b). There is no difference between the two provisions which are not clear enough to construe a conclusion because the provision would only be attracted when violated. In the light of brief facts discussed above, it is imperative to say that the arrest was executed before the date of coming into force of notification notifying the State of U.P as a notified area. It is clear from the facts that as the accused persons were against the Government of Mayawati, they have pretended to show that the arrest was made on the date of publication and made them to be behind the bars. Thus, there would be a presumption raised in this particular situation that the State Government already knows about the proper meaning of Section 4(a) and finally made an order for the police raid to be made in the residence of Udai Pratap Singh.
Firstly, to state that the review committee’s decision is invalid, it is noteworthy to mention that it is unlikely that a law abiding citizen will keep such quantity of explosives at his house. In the light of facts discussed, keeping such kind of explosives at their house does not show that it was meant for bonafide purpose of use. When the issue is about whether the substances possessed are hazardous in nature tell us that the very fact of keeping such a huge quantity of explosives in the house is on the face of it is hazardous. It is normally not kept by a person unless he deals with such explosives with authorized license where in this case, the accused person does not possess. The court has rightly interpreted the meaning of lethal weapons and held that AK-56 comes under the category of lethal weapons and the possession of such weapons becomes punishable under Section 4(b) of POTA. The possession of “hazardous explosive substances” or “lethal weapons” capable of mass destruction” are relevant for the purpose of making them liable under this provision.
In the case State (NCT of Delhi) v. Navjot Sandhu, it was held by the court that the purpose for which the Act was enacted i.e. Prevention of Terrorist Activities has to be viewed and both the provisions of Sections 4(a) and (b) have to be exclusive to each other.
Secondly, the role given to the review committee under POTA is very limited. The committee has to see whether there is a prima facie case and cannot enter into the merits by saying that the evidence is weak to proceed against the accused. This clearly indicates that it has committed irregularity or illegality and has played the role which is out of their discretion. These principles of administrative law can be related to the judgment in case like Anisminic Ltd v. Foreign Compensation Commission which draws out the difference between in-jurisdiction and of-jurisdictional. The other illustrating case is a question to be posed to the court based on Express Newspapers Pvt. Ltd v. Union of India, where the political motivation and malafide intention are playing a main role. The Supreme Court had made Lt. Governor of Delhi to be liable in this case. Then, why can’t in Shukla’s Case, the accused be made liable or has not been made liable?
The only reason behind for taking such an improper decision is because the case involves high political eminent persons and as a result of which the authorities were not ready to take an action against such persons. It is further submitted that the Review Committee has not exercised its power legitimately as it is clear that it has not applied its mind to the facts of the case and was with an intention to release all the three accused. Hence, the researcher would like to comment in this particular background that there is a need of judicial accountability so as to attain ‘rule of law society’. This could be attained by limiting the powers, rules and conditions for such Committees to be laid by the courts so that they are not influenced by the political motive and use the Act for the personal benefit of the political leaders in the parties. In the Shukla’s Case, the decision about setting aside such a kind of order given by Review Committee proves that judicial system has played a very crucial role by not denying justice to the aggrieved party. In Sheonandan Paswan v. State of Biharit was held that the withdrawal of prosecution is an executive function and the decision will be on such person whether to withdraw or not only after applying his mind to the facts of each case but no one can compel him to do so.
Last but not the least, there was a petition filed for transfer of case from State of Uttar Pradesh to State of Madhya Pradesh under Section 406 of Criminal Procedure Code, 1973. The decision with regard to allowance of such petition is absolutely perfect because it is already observed that the State Government has withdrawn the POTA cases from which it is quite evident that it has not taken up the issue very seriously. If such a case is not transferred there would be a likelihood of miscarriage of justice as the accused persons are politically influential people and it has to be proved that even today the judiciary is capable of ensuring a fair trial without taking irrelevant matters into consideration for deciding a case.
In Queen v. Burah, it is said that conditional legislation is valid. The Privy Council, following this case has upheld delegation of legislative power including conditional legislation in number of cases. In Re Delhi Laws Act it is said that delegated legislation and conditional legislation are valid but excessive delegation is not allowed. Therefore, it is concluded by the researcher that over the period of times, the trend of cases dealing with the delegated legislation vis a conditional legislation had been diluted and are almost said to be the same as in this present commented case, there was nothing as such dealt with delegated/conditional legislation. However, it is clear that a law has been delegated with certain conditions under the U.P. General Clauses Act, about the specific period of time when the law comes into force. In the context of Shukla’s case , the judgment of the case does not as much particularly deal with delegated legislation. This is an important case mainly because it involves the political influence which led to the malfunctioning of other organs of the Government. In this case, the concept of ‘delegated legislation’ was not emphasized and is only a secondary matter.
 (1996) 6 SCC 634.
 Based on the report of bomb disposal/disbursement certificate where it mentioned “low intensity” for which they are not to be “hazardous explosive substances” or “lethal weapons capable of mass destruction”.
 Section 4(b), POTA – “bombs, dynamite or hazardous explosive substances or other lethal weapons capable of mass destruction or biological or chemical substances of warfare in any are, whether notified or not”, he shall be guilty of terrorist act and be punishable with imprisonment for a term which may extend to imprisonment for life or with fine which may extend to rupees ten lakh or with both.
 (2005) 11 SCC 600.
 Section 60 (4) of POTA.
 (1969) 2 AC 147.
 AIR 1986 SC 872.
 (1980) 3 SCC 435
 (1878) 3 AC 889
 AIR 1951 SC 332
 Supra 3