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POTA panel order binding on government: High Court

By A. Subramani

CHENNAI, APRIL 29. The Madras High Court today ruled that the Central POTA Review Committee's order was binding on the State government and declined to quash the April 8 directive of the panel asking it to withdraw criminal proceedings against Vaiko, Marumalarchi Dravida Munnetra Kazhagam leader, and eight other partymen.

The First Bench, comprising Chief Justice B. Subhashan Reddy and Justice V.S. Sirpurkar, was passing orders on two writ petitions, one filed by Mr. Vaiko and the other by the Chief Secretary.

Mr. Vaiko sought a direction to the government to implement the committee's order that the public prosecutor be instructed to file a petition under Section 321 of the Criminal Procedure Code in the light of the finding that there was no prima facie case to proceed against him under the Prevention of Terrorism Act. But the government contended that the committee was only an executive body and it could not be permitted to interfere with the administration of justice by a competent judicial forum. It sought to quash the panel order.

The judges said: "The Review Committee has formed its opinion, which is purely administrative in nature. It is binding on the government up to the point of addressing a letter to the prosecutor to consider whether it is a fit case to file an application under Section 321of Cr.P.C."

(According to Section 321, the public prosecutor in charge of a case may, with the consent of the court anytime before the judgment is pronounced, withdraw the prosecution.)

The judges said, "The public prosecutor is not bound by any consideration other than the one revolving round Section 321 and in accordance with well-settled legal principles enunciated by the Supreme Court. As such, we hold that the plea in the writ petition filed by the government is not justiciable." They also observed, "The writ petitions are premature as they have been filed even before the exercise under Section 321 is made."

Recalling its earlier order on the jurisdiction of the committee, which was upheld `in dictum' by the apex court, the Bench said, "in a judgment on February 4, 2004 a Division Bench upheld the constitutional validity of sub-sections 4, 5 and 6, and explained sub-section 7 that even if the committee comes to the conclusion that there is no prima facie case against the accused, the prosecution cannot be deemed withdrawn automatically.

"We explained that if the committee concludes that there is no prima facie case, then the administrative decision is binding on the government, which has to issue a letter to the prosecutor. With that the role of the committee and the government comes to an end.

"It is for the prosecutor to apply his mind independently, taking into consideration the interpretation given for Section 321 by the Supreme Court. Even if he files a petition, the court is not bound to automatically accept the plea. It has to assess the factual situation by applying legal principles and then formulate its opinion."

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