S. K. SHUKLA & OTHERS V STATE OF UP AND OTHERS
Case Citation: Writ Petition (Criminal) 132-134 of 2003
Bench: Justice B.N. Agrawal and Justice A.K. Mathur
This is one of the important cases which must be contextually understood about the political vendetta of malafide exercise of powers of changing Governments of the State of Uttar Pradesh (UP) i.e. change of Mayawati’s Government (the then Chief Minister) to Mulayam Singh’s Government affecting the administration of justice.
The legislature has enacted a Union Law i.e. Prevention of Terrorism Act (POTA), 2002 and has delegated its authority by a notification saying that the law would come into effect in the State of U.P. only on the date of publication of such law in the Official Gazette. Section 5 of the U.P General Clauses Act, 1904 (1 of 1904) contemplates the applicability to notifications affecting the rights of the parties. Since this is a prohibitory notification, therefore, it is necessary to be published by notifying the ‘possession of certain kinds of arms in the notified area that it is prohibited’. This process is called the ‘delegated legislation’. The Supreme Court in ITC Bhadrachalan Paper Boards v. Mandal Revenue Officer, held that the requirement of publication in the Gazette of an exemption given under Section 11(1) of the AP Non-Agricultural Lands Assessment Act 1963, was mandatory and not a directory.
Facts of the case:
The police officials have raided the house of Udai Pratap Singh for the execution of a warrant of arrest under Sections 2/3 of the Gangsters Act.
Police officials found Udai Pratap Singh with an AK-56 rifle and when he was asked about producing the license, he could not. It was also disclosed that a conspiracy was hatched by Udai Pratap Singh to create a terror after killing some VIPs including the then Chief Minister Mayawati.
The witness was murdered when he stated to the police that Raghuraj Pratap Singh and Akshay Pratap Singh were also associated with the conspiracy that who brought the AK-56 rifle and handed over to Udai Pratap Singh.
On this basis, the State Government granted permission from an FIR filed by the deceased father to launch prosecution under Section 50 of POTA.
Thereafter, political events took a turn i.e. new government led by Mulayam Singh Yadav came into power and had revoked the order passed by the Mayawati’s Government. Meanwhile, the accused also filed a review petition under Section 60 of POTA before the Review Committee.
Whether possession of weapons and explosive substances are for the preparation of a terrorist act or not?
Whether Section 4(a) of the Arms Act in a notified area would attract this case?
Whether prosecution under Section 4(b) the Act can be laid down due to the possession of hazardous explosives or lethal weapons?
The Court held that the Review Committee has also has entered into the merit of the matter that accused persons Raghuraj Pratap Singh alias Raja Bhaiya, Udai Pratap Singh, and Akshay Pratap Singh alias Gopalji cannot be connected with the recovery of these catchy of arms. The role of the Review Committee is very limited and the Review Committee has to see a prima facie case and cannot enter into the merit that whether ultimately the conviction will be entailed or not or the evidence is so weak to connect the other accused persons. The role given to the Review Committee under sub-section (4) of Section 60 is very limited and it has only to see whether there is a prima facie case for proceeding against the accused under the Act or not. The Review Committee has travelled beyond its scope; the sufficiency of evidence cannot be gone into by the Review Committee. It is also not the job of the Review Committee whether a confession is admissible or not. The role assigned to Review Committee is very limited and if the prima facie case connects the accused based on the material with the prosecution then it is not for the Review Committee to dilate on that as if they are trying the cases under the Act. As we have already mentioned above that we need not enter into the political controversy that whether the first order passed was politically motivated or the second-order passed was also equally politically motivated by other parties in power, we do not want to go into these questions. The use of the Act for the personal benefit of the political parties has to be condemned in no uncertain terms. This Act cannot be used for the political ends; it is meant for the benefit of the nation so that the terrorists’ activities do not disturb the sovereignty or integrity of the nation. So far as this case is concerned, we believe that there is a prima facie case for prosecuting the accused persons. These accused persons were charged under Section 3(3) read with Section 4.
The committee’s decision saying there were no case against the applicants under POTA and no prima facie case to be found under Section 3 and 4 of POTA seems to only legitimize the order given by Mulayam’s Government to release all the three applicants. The reasons given by the review committee were unreasonable for not making the applicants liable under section 4(a)  of POTA. The committee said that it is not based on the principles of natural justice and administrative discretion which is worth highlighting about the decision given. One of the important grounds of natural justice is that the person who is going to be convicted under any law should have the prior knowledge of that law on the violation of which he can be convicted following the law. In this case, the arrest was performed without prior notice which is nothing but it is said to be against the principles of natural justice.
The review committee has only concentrated on the question of Section 4(a) that whether the unauthorized possession in a notified area would attract this provision. It did not examine the matter regarding Section 4(b) of the Act for which they may be liable. Here, the intention of the legislature is important for using Section 4(a) and delegating this provision and then subsequently the provision being questioned before the law for its application when we already have an express provision i.e. Section 4(b). There is no difference between the two provisions which are not clear enough to construe a conclusion because the provision would only be attracted when violated. In the light of brief facts discussed above, it is imperative to say that the arrest was executed before the date of coming into force of notification notifying the State of U.P as a notified area. It is clear from the facts that as the accused persons were against the Government of Mayawati, they have pretended to show that the arrest was made on the date of publication and made them be behind the bars. Thus, there would be a presumption raised in this particular situation that the State Government already knows about the proper meaning of Section 4(a) and finally made an order for the police raid to be made in the residence of Udai Pratap Singh.
Firstly, to state that the review committee’s decision is invalid, it is noteworthy to mention that it is unlikely that a law-abiding citizen will keep such a quantity of explosives at his house. In the light of facts discussed, keeping such kinds of explosives at their house does not show that it was meant for the bonafide purpose of use. When the issue is about whether the substances possessed are hazardous tell us that the very fact of keeping such a huge quantity of explosives in the house is on the face of it is hazardous. It is normally not kept by a person unless he deals with such explosives with an authorized license where in this case, the accused person does not possess. The court has rightly interpreted the meaning of lethal weapons and held that AK-56 comes under the category of lethal weapons and the possession of such weapons becomes punishable under Section 4(b) of POTA. The possession of “hazardous explosive substances” or “lethal weapons” capable of mass destruction” are relevant for making them liable under this provision.
In the case of State (NCT of Delhi) v. Navjot Sandhu, it was held by the court that the purpose for which the Act was enacted i.e. Prevention of Terrorist Activities has to be viewed and both the provisions of Sections 4(a) and (b) have to be exclusive to each other.
Secondly, the role given to the review committee under POTA is very limited. The committee has to see whether there is a prima facie case and cannot enter into the merits by saying that the evidence is weak to proceed against the accused. This indicates that it has committed irregularity or illegality and has played the role which is out of their discretion. These principles of administrative law can be related to judgment in cases like Anisminic Ltd v. Foreign Compensation Commission which draws out the difference between in-jurisdiction and of-jurisdictional. The other illustrating case is a question to be posed to the court based on Express Newspapers Pvt. Ltd v. Union of India, where the political motivation and malafide intention are playing the main role. The Supreme Court had made Lt. Governor of Delhi to be liable in this case. Then, why can’t in Shukla’s Case, the accused be made liable or has not been made liable?
The only reason behind taking such an improper decision is because the case involves high political eminent persons and as a result of which the authorities were not ready to take any action against such persons. It is further submitted that the Review Committee has not exercised its power legitimately as it is clear that it has not applied its mind to the facts of the case and was intending to release all the three accused. Hence, the researcher would like to comment on this particular background that there is a need for judicial accountability to attain the ‘rule of law society’. This could be attained by limiting the powers, rules, and conditions for such Committees to be laid by the courts so that they are not influenced by the political motive and use the Act for the personal benefit of the political leaders in the parties. In Shukla’s Case, the decision about setting aside such a kind of order given by the Review Committee proves that the judicial system has played a very crucial role by not denying justice to the aggrieved party. In Sheonandan Paswan v. State of Bihar, it was held that the withdrawal of prosecution is an executive function and the decision will be on such person whether to withdraw or not only after applying his mind to the facts of each case but no one can compel him to do so.
Last but not the least, there was a petition filed for the transfer of the case from the State of Uttar Pradesh to the State of Madhya Pradesh under Section 406 of the Criminal Procedure Code, 1973. The decision about the allowance of such a petition is perfect because it is already observed that the State Government has withdrawn the POTA cases from which it is quite evident that it has not taken up the issue very seriously. If such a case is not transferred there would be a likelihood of a miscarriage of justice as the accused persons are politically influential people and it has to be proved that even today the judiciary is capable of ensuring a fair trial without considering irrelevant matters for deciding a case.