E. Sahul Hameed v. Secretary, Ministry of Home Affairs, Government of India
2010-11-10
K.SUGUNA
body2010
DigiLaw.ai
Order:-This writ petition is filed by the accused in Crime No.2490 of 1994 on the file of the Thilagar Thidal Police Station, Madurai dated 10.10.1994 challenging the report of the second respondent dated 07.05.2010 and for a direction to the first respondent to constitute TADA Review Committee under the chairmanship of a retired High Court Judge or sitting High Court Judge, as per the direction of the Hon'ble Apex Court in paragraph no.5 of the judgment reported in AIR 1996 SC 2957 , Shaheen Welfare Association vs. Union of India. 2.
2. According to the learned Senior Counsel appearing for the petitioner, the petitioner was falsely implicated in the murder case of one Rajagopalan in Crime No.2490 of 1994 on the file of Thilagar Thidar Police Station, Madurai dated 10.10.1994; as per the notification of the Tamil Nadu Government dated 28.05.1996 issued in No. SC/2114-2-96, the said case was transferred to CBI for further investigation and a charge sheet was also filed on 19.09.1997 and 28.09.1998 under Section 3(2) and 3(3) of the Terrorists and Disruptive Activities (Prevention) Act, 1987 read with 120(b), 147, 148, 302 read with Indian Penal Code, Section 4(b) and 5 of the Explosive Substance Act read with Section 25 of the Arms Act against the petitioner and five others; as per the judgment of the Hon'ble Apex Court reported in (1994) 3 SCC 569 , Kartar Singh vs. State of Punjab, though the validity of the TADA Act has been upheld except Section 22 of the said Act, there should be a Screening Committee or Review Committee constituted by the Central Government consisting of the Home Secretary, Law Secretary and other Secretaries concerned of the various departments to review the TADA cases instituted by the Central Government and to have a quarterly administrative review reviewing the State's action in the application of TADA provisions in the respective States and the incidental questions arising thereto; in pursuance of this order, the State Government has issued G.O. 1 (D) No.1180, Home (Police – VII) Department dated 31.12.1996; in pursuance of the said Government Order, on review, certain cases registered under the TADA pending investigations and pending trial before the Designated Courts were taken away from the provisions of the TADA Act and transferred to the ordinary regular court; on coming to notice, number of representations were made for review by various accused in various cases; the petitioner also submitted a representation dated 02.01.2006 for review and to send it for the ordinary court; but, that representation was not considered; consequently W.P. No.3466 of 2006 was filed by the petitioner to review the TADA case in C.C. No. 1 of 1997, pending on the file of the Designated Court, Tirunelveli; however, the same was dismissed on the ground that review can be only in cases pending at the stage of investigation; but, as far as the case of the petitioner is concerned, it was under the stage of trial; as against this order, the petitioner had filed W.A. No.1624 of 2006 wherein directions were issued to constitute a Review Committee / Screening Committee within four weeks and refer the petitioner's case to the Review Committee so constituted and that the committee, on examination of the matter, shall make appropriate recommendation to the State Government within a period of four weeks and the State Government, thereafter, shall take appropriate action in accordance with the recommendation of the Review Committee; the said order passed in writ appeal has been confirmed in Review Application No.71/2008 also; but, as per paragraph no.6 of the order passed in the writ appeal which reads as follows: "6.
In compliance with the same, the Screening Committees or Review Committee have been constituted to review the cases lodged under TADA to examine the existence of element of terrorism attracting the said Special Act containing harsh measures. Once the Committee takes a view that it was not a case under TADA then the option was to deal with the same in ordinary criminal law, if the facts and circumstances so warrant. The said judgment of the Supreme Court speaks of high-level officers of the Central Government or the State Government, as the case may be. But, in the later judgment, in Shaheen Welfare Association v. Union of India, (cited supra), the Supreme Court has held that a more independent and objective scrutiny of TADA cases by a Committee headed by a retired Judge, is required to be constituted. There is no dispute that this exercise has not been done by the State Government in the present case." the constitution of the Review Committee must be as per the directions issued by the Hon'ble Apex Court in the judgment reported in (1996) 2 SCC 616 , Shaheen Welfare Association vs. Union of India; though the case of the petitioner was examined by the Review Committee as per the directions of this Court, that Review Committee was not constituted as per the directions of the Hon'ble First Bench of this Court in consonance with paragraph no.5 of the judgment of the Hon'ble Apex Court reported in (1996) 2 SCC 616 , Shaheen Welfare Association vs. Union of India; but, the Review Committee has passed an order dated 22.12.2009 and that order was challenged in W.P. No.3104 of 2010; during the pendency of that writ petition, an interim direction dated 07.04.2010 was passed, directing the Central Review Committee to review the case of the petitioner in accordance with the petitioner's representation dated 10.02.2010; in pursuance of this, a review committee was constituted by the first respondent and the second respondent has passed an order dated 07.05.2010 with a conclusion that there was sufficient justification for invoking the provisions of the TADA Act in the case of the petitioner and the representation has not brought out any new facts or argument to support the contention that the imposition of TADA Act was not justified; challenging this, this writ petition is filed. 3.
3. According to the learned Senior Counsel appearing for the petitioner, for nearly 12 years, the petitioner is in prison; the constitution of the Central Review Committee, the second respondent is not in consonance with the direction issued by the Hon'ble Apex Court in the judgment reported in (1996) 2 SCC 616 , Shaheen Welfare Association vs. Union of India and also the judgment dated 23.01.2007 rendered by the Hon'ble First Bench of this Court in W.A. No.1624 of 2006; as per the above said judgments, the Review Committee should be headed by a retired High Court Judge. In support of this contention, the learned Senior Counsel has relied on the following portion of paragraph no.5 of the judgment reported in (1996) 2 SCC 616 , Shaheen Welfare Association vs. Union of India: "5. . . . A more independent and objective scrutiny of these cases by a committee headed by a retired Judge is obviously necessary." and also the following portion of the judgment dated 23.01.2007 rendered by the Hon'ble First Bench of this Court in W.A. No.1624 of 2006: "6. . . . But, in the later judgment, in Shaheen Welfare Association v. Union of India, (cited supra), the Supreme Court has held that a more independent and objective scrutiny of TADA cases by a Committee headed by a retired Judge, is required to be constituted. . . " But, according to the learned Senior Counsel appearing for the petitioner, the second respondent Review Committee who had reviewed the case of the petitioner is not constituted as per the above said judgments; consequently, the decision / order passed by the said committee cannot be allowed to stand since the constitution of the committee itself is not in accordance with the directions of the Hon'ble Apex Court and on that score itself, the impugned order has to be set aside; besides, already, 12 years have been lapsed and till date the petitioner is forced to be behind the bars on false allegations; consequently, the impugned order has to be set aside and the writ petition has to be allowed. 4.
4. On the other hand, the learned Additional Solicitor General appearing for the respondents 1 and 2 has submitted that as far as the respondents 1 and 2 are concerned, they are following the judgment rendered by a Constitution Bench of the Hon'ble Apex Court reported in (1994) 3 SCC 569 , Kartar Singh vs. State of Punjab wherein the constitutional validity of the TADA Act was challenged and the Constitution Bench has upheld the validity of the TADA Act except Section 22 and also dealt with the need for Screening or Review Committee by the Central Government as well as the State Government. In support of this contention, the learned Additional Solicitor General has relied on paragraph no.265 of the said judgment which reads as follows: "265. In order to ensure higher level of scrutiny and applicability of TADA Act, there must be a screening Committee or a Review Committee constituted by the Central Government consisting of the Home Secretary, Law Secretary and other secretaries concerned of the various Departments to review all the TADA cases instituted by the Central Government as well as to have a quarterly administrative review, reviewing the States’ action in the application of the TADA provisions in the respective States, and the incidental questions arising in relation thereto. Similarly, there must be a Screening or Review Committee at the State level constituted by the respective States consisting of the Chief Secretary, Home Secretary, Law Secretary, Director General of Police (Law and Order) and other officials as the respective Government may think it fit, to review the action of the enforcing authorities under the Act and screen the cases registered under the provisions of the Act and decide the further course of action in every matter and so on. and according to him, as per the above extracted portion of the Constitution Bench judgment, the Review Committee or Screening Committee must consist of the Chief Secretary, Home Secretary, Law Secretary, Director General of Police (Law & Order) and other officials as the respective Government may think fit to review the action of the enforcing authorities under the Act and screen the cases registered under the provisions of the Act and decide further course of action and the respondents 1 and 2 are bound by the said judgment of the Constitution Bench of the Hon'ble Apex Court. 5.
5. The learned Additional Solicitor General appearing for respondents 1 and 2 has also relied on the following judgments: (1996) 2 SCC 610 , R.M. Tewari, Advocate vs. State (NCT of Delhi) and Others (paragraph nos.2,3 and 5) "2. In Kartar Singh v. State of Punjab, the Constitution Bench while upholding the constitutional validity of the provisions in the Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short “the TADA Act”) except Section 22 therein, noticed the general perception that there was some misuse of the stringent provisions by the authorities concerned. To prevent any possible misuse of the stringent provisions, the Constitution Bench suggested a strict review of these cases in its observations made as under: (SCC p.683, para 265) “In order to ensure higher level of scrutiny and applicability of TADA Act, there must be a Screening Committee or a Review Committee constituted by the Central Government consisting of the Home Secretary, Law Secretary and other secretaries concerned of the various Departments to review all the TADA cases instituted by the Central Government as well as to have a quarterly administrative review, reviewing the States’ action in the application of the TADA provisions in the respective States, and the incidental questions arising in relation thereto. Similarly, there must be a Screening or Review Committee at the State level constituted by the respective States consisting of the Chief Secretary, Home Secretary, Law Secretary, Director General of Police (Law and Order) and other officials as the respective Governments may think it fit, to review the action of the enforcing authorities under the Act and screen the cases registered under the provisions of the Act and decide the further course of action in every matter and so on.” 3. It appears that in compliance with the above observations of this Court in Kartar Singh, a Screening Committee or a Review Committee was constituted by the Government in several States including Delhi. A High Power Committee under the chairmanship of the Chief Secretary of Delhi reviewed the prosecutions made under the TADA Act and the Government of Delhi conveyed its approval to the Director of Prosecution, Delhi for deletion of the charges under the TADA Act in the specified criminal cases pending before the Designated Court.
A High Power Committee under the chairmanship of the Chief Secretary of Delhi reviewed the prosecutions made under the TADA Act and the Government of Delhi conveyed its approval to the Director of Prosecution, Delhi for deletion of the charges under the TADA Act in the specified criminal cases pending before the Designated Court. The learned Special Additional Public Prosecutor filed applications in the Designated Court for withdrawal of charges under the TADA Act in all those cases pending in the Designated Court. It appears that the only reason assigned for withdrawal of charges under the TADA Act by the learned Public Prosecutor was the recommendation of the High-Power Committee which was constituted to review the cases in accordance with the observations of this Court in Kartar Singh. The Designated Court has dismissed those applications taking the view that administrative decisions cannot interfere with the working of the judicial system. Apparently, the view taken is that a mere administrative decision taken on the basis of the recommendation of the Review Committee is not sufficient to permit withdrawal of a criminal prosecution pending in a court of law. 5. The scope of Section 321 of the Code of Criminal Procedure, 1973 (CrPC) dealing with withdrawal from prosecution is settled by decisions of this Court. In State of Orissa v. Chandrika Mohapatra, the scope was indicated as under: (SCC pp. 252-53, paras 5-6) “Now the law as to when consent to withdrawal of prosecution should be accorded under Section 494 of the Code of Criminal Procedure is well settled as a result of several decisions of this Court. The first case in which this question came up for consideration was State of Bihar v. Ram Naresh Pandey. It was pointed out by this Court in that case that in granting consent to withdrawal from prosecution the court undoubtedly exercises judicial discretion, but it does not follow that the discretion is to be exercised only with reference to material gathered by the judicial method. * * * It will, therefore, be seen that it is not sufficient for the Public Prosecutor merely to say that it is not expedient to proceed with the prosecution.
* * * It will, therefore, be seen that it is not sufficient for the Public Prosecutor merely to say that it is not expedient to proceed with the prosecution. He has to make out some ground which would show that the prosecution is sought to be withdrawn because inter alia the prosecution may not be able to produce sufficient evidence to sustain the charge or that the prosecution does not appear to be well-founded or that there are other circumstances which clearly show that the object of administration of justice would not be advanced or furthered by going on with the prosecution. The ultimate guiding consideration must always be the interest of administration of justice and that is the touchstone on which the question must be determined whether the prosecution should be allowed to be withdrawn. 8. It appears that in these matters, the public prosecutor did not fully appreciate the requirements of Section 321 CrPC and made the applications for withdrawal from prosecution only on the basis of the recommendations of the Review Committee. It was necessary for the public prosecutor to satisfy himself in each case that the case is fit for withdrawal from prosecution in accordance with the settled principles indicated in the decisions of this Court and then to satisfy the Designated Court of the existence of a ground which permits withdrawal from prosecution under Section 321 CrPC. 9. It would now be open to the public prosecutor to apply for withdrawal from prosecution under Section 321 CrPC in accordance with law on any ground available according to the settled principles; and on such an application being made, the Designated Court would decide the same in accordance with law. 10. The observations in Kartar Singh have to be understood in the context in which they were made. It was observed that a review of the cases should be made by a High Power Committee to ensure that there was no misuse of the stringent provisions of the TADA Act and any case in which resort to the TADA Act was found to be unwarranted, the necessary remedial measures should be taken. The Review Committee is expected to perform its functions in this manner.
The Review Committee is expected to perform its functions in this manner. If the recommendation of the Review Committee, based on the material present, is, that resort to provisions of the TADA Act is unwarranted for any reason which permits withdrawal from prosecution for those offences, a suitable application made under Section 321 CrPC on that ground has to be considered and decided by the Designated Court giving due weight to the opinion formed by the public prosecutor on the basis of the recommendation of the High Power Committee." (2007) 12 SCC 687 , Vijaykumar Baldev Mishra alias Sharma v. State of Maharashtra (paragraph nos.2,3 and 5) "2. Indisputably, a Constitution Bench of this Court in Kartar Singh v. State of Punjab while upholding the validity of TADA directed constitution of a committee to review the cases pending thereunder for the purpose of making recommendations to the Government, so as to enable it to consider the matters where in its opinion, the charges under TADA were required to be dropped and the matters for the prosecution thereunder should continue. 3. Kartar Singh was explained by this Court in R.M. Tewari v. State (NCT of Delhi) in the following terms: (SCC pp. 615-16, paras 10-11) “10. The observations in Kartar Singh have to be understood in the context in which they were made. It was observed that a review of the cases should be made by a High Power Committee to ensure that there was no misuse of the stringent provisions of the TADA Act and any case in which resort to the TADA Act was found to be unwarranted, the necessary remedial measures should be taken. The Review Committee is expected to perform its functions in this manner. If the recommendation of the Review Committee, based on the material present, is, that resort to provisions of the TADA Act is unwarranted for any reason which permits withdrawal from prosecution for those offences, a suitable application made under Section 321 CrPC on that ground has to be considered and decided by the Designated Court giving due weight to the opinion formed by the public prosecutor on the basis of the recommendation of the High Power Committee. 11.
11. It has also to be borne in mind that the initial invocation of the stringent provisions of the TADA Act is itself subject to sanction of the Government and, therefore, the revised opinion of the Government formed on the basis of the recommendation of the High Power Committee after scrutiny of each case should not be lightly disregarded by the court except for weighty reasons such as mala fides or manifest arbitrariness. The worth of the material to support the charge under the TADA Act and the evidence which can be produced, is likely to be known to the prosecuting agency and, therefore, mere existence of prima facie material to support the framing of the charge should not by itself be treated as sufficient to refuse the consent for withdrawal from prosecution. It is in this manner an application made to withdraw the charges of offences under the TADA Act pursuant to review of a case by the Review Committee has to be considered and decided by the Designated Courts.” 5. Pursuant to or in furtherance of the recommendations of this Court as also the Bombay High Court, a Review Committee was constituted, headed by a retired Judge of the High Court of Bombay. The Review Committee took up for consideration 27 cases including the one pending against the appellant herein. In its report, the Review Committee opined: “The murder of Anna Shetty appears to be out of personal enmity and not intended to cause fear or terror in the minds of the people. It is so stated in the charge-sheet itself. ‘To take revenge of the murder of his uncle and to establish supremacy over the rival gang, he made conspiracy to kill Anna Shetty by providing money, weapons, manpower, vehicles and other assistance. He was the mastermind behind the killing of Anna Shetty.’ It also reveals that the genesis of two murder cases i.e. TCS No. 25 of 1992 and TCS 8 of 1993 are interconnected as observed by the Supreme Court in its order dated 2nd March, 2001 in Criminal Appeals Nos. 12981, 1299 of 1998 as under: ‘According to the prosecution there are two groups in Ulhasnagar, one is headed by Gopal Rajwani and other by Pappu Kalani. The deceased Maruti Jadhav and one Krishna Pillay were eyewitnesses to the murder of Lalu in the year 1989 at Hotel Sun & Sand, Bombay.
12981, 1299 of 1998 as under: ‘According to the prosecution there are two groups in Ulhasnagar, one is headed by Gopal Rajwani and other by Pappu Kalani. The deceased Maruti Jadhav and one Krishna Pillay were eyewitnesses to the murder of Lalu in the year 1989 at Hotel Sun & Sand, Bombay. The said Krishna was murdered and thereafter Maruti Jadhav remained the only eyewitness.’ It is heard in Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya (AIR at p.1969): (SCC p.88, para 10) ‘10. … A mere statement to the effect that the show of such violence would create terror or fear in the minds of the people and none would dare to oppose them cannot constitute an offence under Section 3(1) of the [TADA] Act.’ It was observed: ‘Although the murder of Anna Shetty took place in 1990 and the case was charge-sheeted in 1993, the trial has not commenced. There are three accused persons who are still in jail for more than seven years and are yet to be tried. In view of the observation of the Hon’ble Supreme Court in the various judgments cited above, the long time that has elapsed, periods spent in jail and the fact that the crime is committed due to personal enmity, the Review Committee is of the view to drop the proceedings under TADA against all the accused and they may be prosecuted for the charges under Section 302 IPC, etc. in the regular Sessions Court.” and submitted that as per the above said judgments, the Review Committee or the Screening Committee was constituted; as far as the judgment rendered in Shaheen Welfare Association vs. Union of India is concerned, it is only recommendatory in nature; when the Constitution Bench has given certain guidelines, as referred to above, the first and second respondents are duty-bound to follow the same and as far as the induction of a retired or sitting High Court Judge is concerned, when it is recommendatory in nature, non-induction of a retired or sitting High Court Judge will not vitiate the constitution of the said Review Committee since mere suggestion or recommendation does not have any binding force and in support of this contention, the learned Additional Solicitor General has relied on the following judgments: (1996) 6 SCC 44 , Union of India v. Dhanwanti Devi (paragraph no.9) "9. . . .
. . . .It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's deicison binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. . . " (2006) 1 SCC 275 , State of Orissa and Others v. Mohd. Illiyas, (paragraph no.12) "12. . . . A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving judgment that constitutes a precedent. .. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. (See State of Orissa v. Sudhansu Sekhar Misra and Union of India v. Dhanwanti Devi.) A case is a precedent and binding for what it explicitly decides and no more. The words used by Judges in their judgments are not to be read as if they are words in an Act of Parliament. In Quinn v. Leathem the Earl of Halsbury, L.C. observed that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which are found there are not intended to be the exposition of the whole law but governed and qualified by the particular facts of the case in which such expressions are found and a case is only an authority for what it actually decides." (2010) 3 SCC 119 , Jitendra Kumar Singh and another vs. State of Uttar Pradesh and Others (paragraph nos.53-55) "53. Even otherwise, merely quoting the isolated observations in a judgment cannot be treated as a precedent dehors the facts and circumstances in which the aforesaid observation was made. 54. Considering a similar proposition in Union of India v. Dhanwanti Devi, this Court observed as follows: (SCC pp. 51-52, para 9) “9. … It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge’s decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. … A decision is only an authority for what it actually decides.
The only thing in a Judge’s decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. … A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. … It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. … It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution.”(emphasis supplied) 55. In State of Orissa v. Mohd. Illiyas the Supreme Court reiterates the law as follows: (SCC p.282, para 12) “12. … Reliance on the decision without looking into the factual background of the case before it, is clearly impermissible. A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving judgment that constitutes a precedent. … A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. … A case is a precedent and binding for what it explicitly decides and no more.
The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. … A case is a precedent and binding for what it explicitly decides and no more. The words used by Judges in their judgments are not to be read as if they are words in an Act of Parliament.” as such, according to the learned Additional Solicitor General, even in the judgment of the Hon'ble First Bench of this Court rendered in the writ appeal also, only an observation is made and no direction has been given; when as per the judgment of the Constitution Bench of the Hon'ble Apex Court, the Review Committee has been constituted and as per the directions of this Court, the case of the petitioner was reviewed, the question of following the judgment reported in (1996) 2 SCC 616 , Shaheen Welfare Association vs. Union of India with regard to induction of a retired or sitting High Court Judge does not arise and based on this, the constitution of the said committee cannot be said to be not in accordance with the said judgment of the Hon'ble Apex Court; apart from this, as far as the case in hand is concerned, already trial is over and now, the matter is posted for questioning of the accused under Section 313 of the Criminal Procedure Code and in view of the interim order secured by the petitioner, the case could not be proceeded further. 6. According to the learned counsel for the fifth respondent, though the trial is over, without any progress, the case is pending at the stage of Section 313 of Criminal Procedure Code proceedings from January 2006 due to various petitions filed by the petitioner/accused; a discharge petition filed by the petitioner in Crl. M.P. No.5872 of 2000 before the Designated Court for TADA cases, Tirunelveli was dismissed on 22.03.2001 and that has also become final; as the trial case is at an advanced stage, review of provisions of TADA in the case should be decided only by the Trial Judge; the Trial Court has also found sufficient material to frame charges under the TADA Act against the petitioner and conduct trial.
Adopting the arguments of the learned Additional Solicitor General, the learned counsel for the fifth respondent has also submitted that the Review Committee has been constituted as per the Constitution Bench judgment of the Hon'ble Apex Court reported in (1994) 3 SCC 569 , Kartar Singh vs. State of Punjab and as far as the judgment rendered in Shaheen Welfare Association vs. Union of India is concerned, it is only recommendatory in nature, consequently, based on that, the petitioner is not entitled for the relief sought in the writ petition. Based on these submissions, the learned counsel for the fifth respondent has sought dismissal of the above said writ petition. 7. The issue to be decided in this case is whether the constitution of the second respondent is in accordance with the judgment rendered by the Hon'ble Apex Court in this line or not. Admittedly, the validity of the TADA Act has been dealt with by the Hon'ble Apex Court in the judgment reported in (1994) 3 SCC 569 Kartar Singh vs. State of Punjab and at paragraph no.265 of the said judgment, the Hon'ble Supreme Court has dealt with the constitution of the above said committee. As per the said judgment, it should consist of the Chief Secretary, Home Secretary, Law Secretary, Director General of Police (Law & Order) and other officials as the respective Government may think fit to review the action of the enforcing authorities under the Act and screen the cases registered under the provisions of the Act and decide further course of action and in the subsequent judgments of the Hon'ble Apex Court also, following the judgment reported in (1994) 3 SCC 569 , Kartar Singh vs. State of Punjab, the constitution of the Screening / Review Committee has been dealt with. But, the learned Senior Counsel appearing for the petitioner seeks the relief relying on the following portion of the judgment reported in (1996) 2 SCC 616 , Shaheen Welfare Association vs. Union of India. "5. . . . A more independent and objective scrutiny of these cases by a committee headed by a retired Judge is obviously necessary." Even as per the above said judgment also, a retired High Court Judge necessarily be inducted in the said Committee as the head of the Committee.
"5. . . . A more independent and objective scrutiny of these cases by a committee headed by a retired Judge is obviously necessary." Even as per the above said judgment also, a retired High Court Judge necessarily be inducted in the said Committee as the head of the Committee. However, a perusal of the said judgment reveals that based on the facts of the said judgment, that observation has been made. But, as per the judgment of the Constitution Bench, there is no mention about the induction of a retired High Court Judge in the Review or Screening Committee. As rightly pointed out by the learned Additional Solicitor General, what is stated in the judgment reported in (1996) 2 SCC 616 , Shaheen Welfare Association vs. Union of India, is only recommendatory in nature and in the judgments reported in (1996) 6 SCC 44 , Union of India v. Dhanwanti Devi, (2006) 1 SCC 275 , State of Orissa and Others v. Mohd. Illiyas, (2010) 3 SCC 119 , Jitendra Kumar Singh and another vs. State of Uttar Pradesh and Others which have been relied on by the learned Additional Solicitor General, the Hon'ble Apex Court has dealt with the effect of the observation and the binding nature of the judgments of the Hon'ble Apex Court. As per the above said judgments also, not everything said in a judgment will have a binding force and only the principle laid down therein, will have a binding force. As far as the issue in hand is concerned, even in the judgment reported in (1996) 2 SCC 616 , Shaheen Welfare Association vs. Union of India, no such a principle has been laid down and as rightly pointed out by the learned Additional Solicitor General, it is only recommendatory in nature. Consequently, even in the judgment of the Hon'ble First Bench of this Court rendered in the above said writ appeal also, only an observation has been made and there has been no direction with regard to the induction of a retired High Court Judge in the Review or Screening Committee. As such, I am not able to accept the argument of the learned Senior Counsel appearing for the petitioner that the committee itself is an invalid one since it is not headed by a retired High Court Judge.
As such, I am not able to accept the argument of the learned Senior Counsel appearing for the petitioner that the committee itself is an invalid one since it is not headed by a retired High Court Judge. This issue has been dealt with by a Division Bench of this Court in H.C.P. No.1013 of 2010 by order dated 26.07.2010 wherein also the Division Bench has held that the constitution of the Review Committee / Screening Committee as per the Constitution Bench judgment of the Hon'ble Apex Court reported in (1994) 3 SCC 569 , Kartar Singh vs. State of Punjab is valid and the prayer of the petitioners therein to hold the constitution of the Review Committee / Screening Committee as invalid and for re-constitution of the committee with a retired High Court Judge as the Chairperson of the committee has been rejected by the Division Bench. 8. Apart from this, though a stand has been taken by the learned Senior Counsel appearing for the petitioner that already, for 12 years, the petitioner has been in prison, as rightly pointed out by the learned counsel for the fifth respondent, trial was over as early as 2006 itself and based on the petitions filed by the petitioner alone, the issue is dragged on and now, the case is posted for questioning of the accused under Section 313 of the Code of Criminal Procedure. Under such circumstances, even this ground taken by the learned Senior Counsel appearing for the petitioner will not be of any help to the petitioner. Hence, I do not find any infirmity in the impugned order. Accordingly, the writ petition is dismissed. No costs. Consequently, connected Miscellaneous Petitions are closed.