Criminal Writ Petition No. 2075 of 2009. Case: Vijay Anant Vashirde Present in Judicial Custody and Lodged at Mumbai Central Prison Vs The State of Maharashtra at the Instance of Assistant Commissioner of Police. High Court of Bombay (India)
| Case Number | Criminal Writ Petition No. 2075 of 2009 |
| Counsel | For Appellant: S.R. Chitnis, Sr. Counsel, S.R. Pasbola and Rahul Arote, Advs. and For Respondents: V.R. Dhond, Special Counsel and U.V. Kejariwal, A.P.P. |
| Judges | Ranjana Desai and Mridula Bhatkar, JJ. |
| Issue | Maharashtra Control of Organised Crime Act (30 of 1999) - Sections 2(e), 23 |
| Citation | 2010 (112) BomLR 2547, 2010 CriLJ 3568 |
| Judgement Date | May 07, 2010 |
| Court | High Court of Bombay (India) |
Judgment:
Ranjana Desai, J.
1. The petitioner is an accused in MCOC Special Case No. 6 of 2009. In this petition filed under Article 226 of the Constitution of India, the petitioner has prayed, inter alia, that directions be issued to the State of Maharashtra to establish a Review Committee on the lines of directions given by the Supreme Court in Kartar Singh v. State of Punjab 1994 SCC (Cri.) 899 and as incorporated in POTA (Amendment) Act, 2003 (since repealed), so as to screen the abuse and misuse of the provisions of the Maharashtra Control of Organized Crime Act, 1999 ('for short, 'MCOCA'), that all pending cases and newly registered cases be referred to a Review Committee and that it may be declared that the provisions of MCOCA are not attracted to the petitioner's case.
2. It is necessary to state certain facts for better appreciation of the rival submissions. The Terrorist & Disruptive Activities (Prevention) Act, 1987 (for short, 'TADA') was enacted to make special provisions for the prevention of, and for coping with, terrorist and disruptive activities. In Kartar Singh, constitutional validity of TADA was challenged. Section 15 of TADA which made confession made by a person before a police officer not lower in rank than a Superintendent of Police admissible in evidence came under heavy attack. The Supreme Court agreed that it would be dangerous to make a statement given to a police officer admissible. The Supreme Court held that having regard to the legal competence of the legislature to make the law prescribing a different mode of proof, the meaningful purpose and object of the legislation, the gravity of terrorism unleashed by the terrorists endangering the sovereignty and integrity of the country and the normal life of the citizens, Section 15 cannot be said to be suffering from the vice of unconstitutionality. However, the Supreme Court laid down guidelines so as to ensure that confession obtained in the pre-indictment interrogation is not tainted with any vice, but is in strict conformity with well recognized and accepted aesthetic principles and fundamental fairness. The Supreme Court directed the Central Government to take note of the guidelines and incorporate them by appropriate amendments in TADA. In order to ensure higher level of scrutiny and applicability of TADA, the Supreme Court expressed that there must be Review Committee constituted by the Central Government. It is necessary to quote paragraph 265 of the judgment.
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.
3. In Shaheen Welfare Association v. Union of India and Ors. (1996) 2 SCC 616 in a public interest litigation, certain directions were sought in respect of under-trial prisoners charged with offences under TADA. The Supreme Court, not being entirely satisfied with the functioning of the Review Committee expressed that a more independent and objective scrutiny of the cases by a Committee headed by a retired Judge is obviously necessary. We shall advert to this case a little later.
4. In 1995, TADA lapsed. The Prevention of Terrorism Ordinance, 2001 was promulgated on 24/10/2001. It was followed by the Prevention of Terrorism (Second) Ordinance promulgated on 30/12/2001. In 2002, the Prevention of Terrorism Act, 2002 (for short, 'POTA') was enacted replacing Prevention of Terrorism (Second) Ordinance, 2001. Section 60 of POTA provided for a Review Committee. Sub-sections (4) to (6) were added to Section 60 of POTA by Prevention of Terrorism (Amendment) Ordinance, 2003. The said ordinance was further amended by the Prevention of Terrorism (Amendment) Act, 2003 which inserted Sub-sections (4) to (6) as also further Sub-section (7) in Section 60. The amended Section 60 reads thus:
60. Review Committees. - (1) The Central Government and each State Government shall, whenever necessary, constitute one or more Review Committee for the purposes of this Act.
(2) Every such Committee shall consist of a Chairperson and such other members not exceeding three and possessing such qualifications as may be prescribed.
(3) A Chairperson of the Committee shall be a person who is, or has been, a Judge of a High Court, who shall be appointed by the Central Government, or as the case may be, the State Government, so however, that the concurrence of the Chief Justice of the High Court shall be obtained in the case of a sitting Judge: Provided that in the case of a Union Territory, the appointment of a person who is a Judge of the High Court of a State shall be made as a Chairperson with the concurrence of the Chief Justice of the High Court concerned'.
(4) Without prejudice to the other provisions of this Act, any Review Committee constituted under Sub-section (1) shall, on an application by any aggrieved person, review whether there is a prima facie case for proceeding against the accused under this Act and issue directions accordingly.
(5) Any direction issued under Sub-section (4), -
(i) by the Review Committee constituted by the Central Government, shall be binding on the Central Government, the State Government and the police officer investigating the offence; and
(ii) by the Review Committee constituted by the State Government, shall be binding on the State Government and the police officer investigating the offence.
(6) Where the reviews under Sub-section (4) relating to the same offence under this Act, have been made by a Review Committee constituted by the Central Government and a Review Committee constituted by the State Government, under Sub-section (1), any direction issued by the Review Committee constituted by the Central Government shall prevail.
(7) Where any Review Committee constituted under Sub-section (1) is of opinion, that there is no prima facie case for proceeding against the accused and issues directions under Sub-section (4), then, the proceedings pending against the accused shall be deemed to have been withdrawn form the date of such direction.
5. In view of adverse report about misuse of POTA, Parliament repealed it by the Prevention of Terrorism (Repeal) Ordinance, 2004 on 21/9/2004 and replaced it by the Prevention of Terrorism (Repeal) Act, 2004 (for short, 'the Repealing Act'). Section 3 of the Repealing Act made it clear that notwithstanding the repeal of Section 60 of the principal Act, the Review Committee constituted by the Central Government under Sub-section (1) of that Section shall review all cases registered under the principal Act and such review shall be completed within a period of one year from the commencement of the Repealing Act. Section 5 stated that the Central Government may constitute more Review Committees as it may consider necessary, for completing the review within the period specified in Sub-section (3).
6. It is in short the case of the petitioner, as presented to us by Mr. Chitnis, learned senior counsel, that the provisions of MCOCA are drastic and perhaps more stricter than TADA. There are several cases of misuse of MCOCA and, therefore, the provisions of the Review Committee as incorporated in POTA and retained by the Repealing Act pursuant to the Supreme Court's directions in Kartar Singh be incorporated in MCOCA.
7. Counsel submitted that the Review Committee acts as a filter. TADA, POTA or MCOCA are draconian legislations. Though validity of MCOCA is upheld, its arbitrary, capricious and revengeful use must be prevented. It's misuse is evident from several...
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