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2009 DIGILAW 826 (AP)

ALTAF AHMED v. STATE OF A. P.

2009-11-18

D.S.R.VERMA, R.KANTHA RAO

body2009
D. S. R. VARMA, J. ( 1 ) HEARD Sri C. Padmanabha Reddy, learned senior Counsel, representing, the learned counsel appearing for the appellant, as well as learned Public Prosecutor, appearing for the respondent-State. ( 2 ) APPELLANT is accused No. 8 in the sessions Case. ( 3 ) THIS Criminal Appeal is preferred by the Appellant aggrieved by the charges framed against him under Sections 3 (3), 20, 21 and 22 of the Prevention of Terrorism act, 2002 (Act 15 of 2002) (for short 'the pota') by the Additional Metropolitan sessions Judge for the trial of Jubilee Hills Car bomb Blast Case-cum-Additional Family court, Hyderabad, in Sessions Case No. 74 of 2004. ( 4 ) THE appellant is being tried for certain offences under the Indian Penal Code along with the offences under the POTA and also under Sections 3, 4 and 5 of the Explosive substances Act. ( 5 ) SRI C. Padmanabha Reddy, learned senior Counsel, appearing for the appellant, contends that the trial Court framed charges against the appellant under the POTA, despite the fact that the Review Committee, constituted under Section 60 of the POTA, found that the confessional statements allegedly made by the appellant, who is arrayed as accused No. 8 in Sessions case no. 74 of 2004, cannot be relief upon, as the procedural safeguard, requiring confirmation by the Magistrate under subsection 4 of Section 32 of the POTA, was not observed and further, expressed the opinion that there was no, prima facie, justification for invocation of the POTA against the appellant along with other accused and consequently, directed the State Government not to proceed in accordance with Clause (a) of sub-section 3 of Section 2 of the POTA (Repeal) Act 2004 (Act No. 26 of 2004) in respect of the appellant. ( 6 ) LEARNED Senior Counsel, appearing for the appellant, further contends that before framing of charges, it has been argued, on behalf of the appellant along with two other accused, before the trial Court that the statutory Review Committee, constituted under Section 60 of the POTA, has recorded a finding that there was no, prima facie, justification for invocation of the POTA against the appellant and therefore, as postulated under sub-section 7 of Section 60 of the POTA, the proceedings pending against the appellant shall be deemed to have been withdrawn from the date of such direction. ( 7 ) LEARNED Senior Counsel, appearing for the appellant, further contends that it is to be noted that the Review Committee has passed the said order on 13-9-2005, and therefore, from 13-9-2005, the proceedings that were initiated against the appellant for the offences allegedly committed by him under the POTA are deemed to have been withdrawn, unless and until the said order of the Review committee was subjected to challenge by way of filing a Writ Petition. ( 8 ) IT is an undisputed fact that the said order of the Review Committee had attained finality, inasmuch as, the same had not been challenged. ( 9 ) NOW, the point that arises for consideration, in this Criminal Appeal, is as to whether the trial Court is justified in proceeding with the trial for the offences allegedly committed by the appellant under the POTA in the teeth of the order, dated 13-9-2005, of the Review Committee, exonerating the appellant from the ambit of the POTA. ( 10 ) IN this connection, we feel it appropriate to refer to the powers of the trial court under the POTA. ( 11 ) SECTION 34 of the POTA deals with appeal. ( 12 ) FOR the sake of convenience and ready reference, it is apt to extract Section 34 of the pota, to the extent relevant, which is thus :- "appeal- (1) Notwithstanding anything contained in the Code, an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court both on facts and on law. Explanation - For the purposes of this section, "high Court" means a High court within whose jurisdiction, a special Court which passed the judgment, sentence or order, is situated. (2 ). . . . . . . . (3 ). . . . . . " ( 13 ) IT is abundantly obvious from the above provision that an appeal shall lie from any judgment, sentence or order, provided such an order is not an interlocutory order, of a Special Court to the High Court, both on facts and on law. ( 14 ) IN the present appeal, neither the judgment nor sentence nor an order much less an interlocutory order is under challenge. ( 14 ) IN the present appeal, neither the judgment nor sentence nor an order much less an interlocutory order is under challenge. ( 15 ) THE reason as stated by the learned senior Counsel is that at the time of framing of charges by the trial Court, the factum of passing of the order by the Review Committee on 13-9-2005, exercising its jurisdiction under sub-section 7 of Section 60 of the POTA, was brought to the notice of the trial Court, but notwithstanding the same, the trial Court had framed charges against the appellant of the offences under Sections 3 (1), 20, 21 and 22of the POTA. It is his assertive contention that the trial Court framed the charges against the appellant for the said offences under the POTA, totally ignoring the specific provision under the POTA i. e. , sub-section 7 of Section 60 of the POTA, whereunder it was categorically declared that when once the review Committee passes an order in favour of the accused, holding that there is no, prima facie, justification for proceeding against the accused under the POTA, then the charges framed against him under the POTA shall be deemed to have been non-existent or withdrawn from the date of passing of the said order. ( 16 ) IN other words, any charges, even if framed, shall have to be treated as withdrawn and consequently, be treated as not liable to be tried. ( 17 ) OF course, there is any amount of force in this submission of the learned Senior counsel for the simple reason that the provisions regarding the right of the accused to file an appeal under Section 34 of the POTA and the relief accorded by the Review committee under sub-section 7 of Section 60 of the POTA is very clear. ( 18 ) BUT, in our considered view, to avail the benefit accorded by sub-section 7 of section 60 of the POTA and in order to file an appeal before the High Court invoking section 34 of the POTA, the Condition precedent is that there must have been an adverse judgment, sentence or order, but not an interlocutory order of a Special Court. ( 19 ) REVERTING bank to the case on hand, what is obvious is that, while bringing to the notice of the trial Court regarding the order passed by the Review Committee, no application has been made by the appellant before the trial Court in order to compel it to pass an order. ( 20 ) IF an order is passed adversely by the trial Court affecting the interests of the appellant, notwithstanding the order passed by the Review Committee, in his favour, the same would be totally an arbitrary exercise of the power by the trial court and also amounts to exceeding its jurisdiction, which is prohibited under law. ( 21 ) UNFORTUNATELY, no such attempt has been made by the appellant by way of filing an application before the trial Court at the time of framing of charges. The charges have been framed very recently i. e. , on 25-8-2009. Pursuant to the framing of charges, the trial is, now, just reportedly commenced. ( 22 ) THE result of such commencement of trial would, undoubtedly, be detrimental not only to the interest of the appellant but also nullify the benefit extended to him by the statutory authority like the Review committee, exercising its jurisdiction under sub-section 7 of Section 60 of the POTA. Furthermore, the exercise of conducting trial against the appellant for the offences under the POTA would be a wasteful exercise and eventually, the same would be rendered as superfluous. ( 23 ) BUT, and, notwithstanding the above position, this Court is not able to interfere in this appeal and pass any order, inasmuch as, as already pointed out, any judgment or sentence or order passed by the trial Court is not under challenge before this Court. Only on that score, this Court cannot entertain this appeal and therefore, we are of the view that the present appeal is not maintainable. ( 24 ) AT the same time, we are of the considered view that owing to the fact of not approaching the trial Court by the appellant by way of filing an application, at an appropriate time and manner, permissible under law, he is being unnecessarily subjected to trial for the offences under the pota, which, in our, considered, view, as already expressed above, is a wasteful exercise. ( 25 ) THEREFORE, in order to meet the ends of justice and to avoid any further arduous situation that is likely to be meted out to the appellant by way of subjecting him to the trial for the already offences under the POTA, we dispose of this appeal with a liberty to the appellant to file an appropriate application, as provided and permissible under law, before the trial Court within one week from the date of receipt of a copy of this order and upon such an application being made, the trial Court is directed to dispose of the same, by passing appropriate order, keeping in view the order, dated 13-9-2005, passed by the Review Committee, which had become final. ( 26 ) WITH the above observations and directions, the Criminal Appeal is disposed of. Criminal Appeal is disposed of