The Supreme Court on Wednesday allowed 87 accused in the Godhra train carnage case to directly approach it for bail after it was pointed out that they were languishing in jail despite the POTA Review Committee’s recommendation to drop terror charges against them.
Senior counsel Rajiv Dhavan submitted on behalf of the accused that despite the review committee’s recommendation to drop charges against the accused under the special anti-terror law, they were forced to remain in jail for five years as the Gujarat government did not abide by it. The trial in the case had been stayed on the orders of the court.
A bench of Justice BP Singh and Justice HS Bedi referred the issue to a larger bench, which will determine whether courts were bound by the recommendations of the review committee’s findings on the applicability of the now-defunct special law.
The accused have sought their release on bail on the basis of a favourable report of the POTA Review Committee, which said they could not be prosecuted under the anti-terror law.
Now a larger bench of the court would test the validity of sub Section 2(3) Repeal Act, which is identical to Section 60 of the Prevention of Terrorism (Repeal) Act (POTA) under which the review committee was constituted.
The Section 2(3) of the Prevention of Terrorism (Repeal) Act makes the findings of the review committee binding on the courts.
However, senior counsel Sushil Kumar argued on behalf of the Gujarat government that the Repeal Act gave unbridled power to the POTA Review Committee. The committee’s recommendations can not be binding on courts particularly when cognizance had already been taken, counsel said.
He argued that the review Committee, though headed by a retired high court Judge, could not be treated on par with the judiciary, neither it could supersede the powers of the public prosecutor provided under Section 321 of the Criminal Procedure Code and the court, counsel contended.