MAHMADHUSEN ABDULRAHIM KALOTA SHAIKH versus UNION OF INDIA & ORS.

Citation: [2008] 14 S.C.R. 889 · Decided: 21-10-2008 · Supreme Court of India · Bench: K.G. BALAKRISHNAN · Disposal: Disposed off

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2008] 14 S.C.R. 889 
MAHMADHUSEN ABDULRAHIM KALOTA SHAIKH 
A 
.. 
~ 
v. 
UNION OF INDIA & ORS. 
(Criminal Appeal No. 1113 of 2005) 
OCTOBER 21, 2008 
B 
[K.G. BALAKRISHNAN, CJI., R.V. RAVEENDRAN AND 
DALVEER BHANDARI, JJ.] 
y 
Prevention of Terrorism Act, 2002; s. 60(4) to (7)/Preven-
tion of Terrorism (Repeal) Act, 2004; s.2(3) and (5): 
c 
Review of cases registered under POTA after repealing 
of POTA- Power of Review Committee to issue directions for., 
withdrawal of cases in terms of s. 2(3) and (5) of the Repeal Act 
- S. 2(3) and (5) of the Repeal Act- Constitutionality of- Held: 
Since Repealing Act contains an exhaustive provision relat-
D 
ing to saving in terms of s. 2(2) to (5) of the Repeal Act, sav-
ings from repeal would not be governed by the provisions un-
----
der s. 6 of General Clauses Act - Provisions in the Repealing 
Act are for saving a proceeding pending under POTA or for 
termination of pending proceeding are for winding up - Con-
E 
tinuation of a pending proceeding after repeal of POTA is pos-
sible on account of deeming fiction created by saving clause 
in Repealing Act - Tests applicable for deciding the constitu-
tiona/ validity of live and current statutes, not applicable to 
winding up provision in a savings clause of the Repealing Act F 
- Repealing Act repeals POTA but provides for certain sav-
ings from repeal to meet special features of the repealed stat-
ute - It does not violate any constitutional provisions - Hence, 
s. 2(3) and (5) of the Repealing Act are valid and constitu-
tiona/- General Clauses Act, 1897- S. 6 - Constitution of G 
India, 1950- Articles 14 and 21. 
,-...\ 
S. 2(3) of POTA (Repeal) Act- Withdrawal of cases when 
Review Committee opines that there was no prima facie case 
889 
H 
890 
SUPREME COURT REPORTS 
[2008] 14 S.C.R. 
A 
exist~- Applicability of s.321 Cr.P. C- Held: s.2(3) of theRe~ 
pealtng Act, special provisions, excludes applicability of s. 321 
CPC, a general provision - If s. 321 Cr. PC. is held to be appli-
cable then s. 2(3) of Repeal Act rendered nugatory and cases 
cannot be withdrawn until requirements of s. 321 Cr P. C. are 
8 
not complied with -It would amount to re-writing of s. 2(3 ), which 
is impermissible. · 
· · 
· · 
c 
D 
5.60(4) to (7) of POTA vis-a-vis 5.2(3) of Repealing Act-
Review Committee - Power of, in recommending withdrawm 
of cases registered under POTA- Discussed. 
Constitution of India, 1950; Articles 32 and 226: 
Supreme Court/High Court- Power of Judicial Review-
Scope of- Discussed, in the context of s.2(3) to (5) of POTA 
(Repeal) Act, 2004. 
Separation of Powers and Judicial Re\1iew- Basic struc-
ture of the Constitution- Held: Not violated by provisions un-
der POTA (Repeal) Act. 
In the year 2002, the Prevention of Terrorism Act was 
E 
enacted. Section GO of the Act provided for constitution 
of Review Committees to discharge the functions speci-
fied in Ss. 19(4), 40 and 46 of the Act. The Act was amended 
on 27.10.2003 introducing sub-sections (4) to (6) in sec-
tion 60 of the Act in terms whereof certain additional func-
F 
tion were entrusted to the Review Committees. The Act 
was further amended inserting sub-section (7) in Section 
60 with retrospective effect from 27-10-2003. The effect of 
the amendment was to make any direction issued by the 
Review Committee on review, about the existence of 
G 
prima facie case for proceeding against the accused un· 
der POTA, binding on the Central Government as well as 
State Government and the police officer investigating the 
offence. Parliament repealed POTA in the year 2004 by 
Prevention of Terrorism (Repeal) Act, 2004. The provisi~ns 
of sub-sections (3) and (5) of section 2 of the Repealmg 
H 
'it 
·~ 1 
.-
I 
~-~,; 
/' <. 
·, 
• 
~-
.' 
, 
~. 
~-' 
•• ·, 'II''~('" I.,:· .. -.. •.! .·' 
.. 
' · .. · MAHMADHUSEN ABDULRAHIM KALOTA SHAIKH v. 
89f: >·,;:::. ,;;,: . .:::;::~:::: 
• 
• 
<Ill 
' 
• 
• 
UNION OF INDIA & ORS . 
. -. 
• 
; ,. • ~ .... ·') ! • 
• 
. • 
• 
? 
• • 
...f 
• 
-~ 
• ......... ' 
\ 
• 
• 
• 
; 
~ 
' 
• 
.. 
-
Act were challenged before the',High,:Court of Gujarat, by· A· 
the relatives: of the p~rsons killed in· G.o.dhara ·train b·urri.:. 
ing incident. By judgment dated 13~4.2005, the High Court 
upheld the. constitutional validity ·.of these provisions ·of 
the· Repealing-.Act..-The High: Court wa·s of the view· that 
the provisions of section 2(3); of the Repealing·Act were~ B · 
similar to the provisions of.sec.tion.60(4) to (7) .oiPbT

Excerpt shown. Read the full judgment & AI analysis in Lexace.