Debating India


POTA review is final word

Tuesday 14 June 2005

The Gujarat Government’s decision not to move for withdrawal of terrorism charges against the accused in the Godhra train attack case is a flagrant violation of judicial guidelines set by both the Gujarat High Court and the Supreme Court. The Prevention of Terrorism Act was first invoked in the case instituted more than nine months after the February 27, 2002 tragedy that resulted in the death of 59 passengers. Against the background of the prolonged detention in Tamil Nadu of the Marumalarchi Dravida Munnetra Kazhagam leader, Vaiko, under the draconian law, the National Democratic Alliance Government introduced a review mechanism for all POTA cases. An unintended consequence of this was that the Godhra detenus were able to apply for a review of their cases. After due deliberation, Justice S.C. Jain, Chairman of the Central Review Committee (CRC) on POTA, ruled in May that the prosecution had failed to make out a case that the attack on the Sabarmati Express was indeed part of a terrorist conspiracy. This order - based on a scrutiny of the charge sheets and on oral arguments put forward - is clear and unambiguous: "The Committee is of the view that the accused may be tried under the provisions of the IPC, Indian Railways Act... etc... but not under the provisions of the Prevention of Terrorism Act, 2002."

Earlier, on April 13, 2005, while rejecting a petition challenging the validity of the CRC’s review of the Godhra case, the Gujarat High Court ruled that once the Review Committee decides no prima facie case is made out for proceeding against the accused under POTA, "the public prosecutor... shall then file appropriate application under Section 321 of the [Criminal Procedure] Code without any delay and place before the Special Court the opinion of the Review Committee together with other relevant records for passing appropriate order." Section 321 of the CrPC deals with the withdrawal of prosecution. Citing the opinion of the Madras High Court in the Vaiko case, as upheld by the Supreme Court, the Gujarat court averred that the prosecutor has no discretion in the matter. It also directed that the Special Court trying the case "shall dispose of such application [for withdrawal of prosecution] as early as possible in line with, inter alia, the Supreme Court’s observations in R.M. Tewari [judgment]." The need for review committees in anti-terrorism cases was addressed by the Supreme Court in R.M. Tewari vs State of Punjab, 1996. The case dealt with the now lapsed Terrorism and Disruptive Activities (Prevention) Act. The apex court observed that the recommendation of review committees "should not be lightly disregarded by the court except for weighty reasons such as mala fides or manifest arbitrariness." Dropping POTA charges does not mean the accused go scot-free; they will still be tried under the law of the land. The Gujarat Government will have its day in court, but judicial precedent is very clear: it cannot invoke POTA in the Godhra cases.

See online : The Hindu

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