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Section 321 in The Code Of Criminal Procedure, 1973
The Prevention of Terrorism Act, 2002
Section 2 in The Prevention of Terrorism Act, 2002
Section 362 in The Code Of Criminal Procedure, 1973
Section 374(2) in The Code Of Criminal Procedure, 1973

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Madras High Court
Chennai @ Poonamallee vs Pudukottai Povanan @ R.Pavanan on 16 November, 2009



DATED : 16.11.2009



CRL. APPEAL No.657 of 2009

State, represented by
Special Public Prosecutor
Special Court under Prevention of
Terrorism Act,2002,
Chennai @	 Poonamallee.					..Appellant

Pudukottai Povanan @ R.Pavanan
S/o Ramanathan,
Pudukottai							..  Respondent  

	This criminal appeal is  preferred under Section 374(2) Cr.P.C. and POTA Act against the  order dated 6.3.2008 made in SR.No.1/2008 by the Special Judge (under the Prevention of Terrorism Act 2002 Chennai at Poonamallee)
	For Appellant 	  : Mr.P.Venkatasubramanian	
				    Special Public Prosecutor for POTA.	

	For Respondent     : Mr.N.Chandrasekaran


(The judgment of the Court was delivered by M.CHOCKALINGAM,J.) This appeal challenges an order of dismissal of an application filed under Section 321 Cr.P.C. by the State represented by the Deputy Superintendent of Police, Gobichettipalayam, Erode, passed by the Special Court under the Prevention of Terrorism Act,2002, Chennai at Poonamallee.

2. The Court heard the learned counsel for the appellant/State and also the learned counsel for the respondent.

3. The respondent was booked by Kavundapadi Police for the alleged commission of offence under section 124-A, 153(A), 1(a) of IPC in Crime No.201 of 2002 on the basis of a report given by the Head Constable-911, one Balasubramaniam attached to the Kavundapadi Police Station against the accused. The report was given by the Head Constable in view of the public speech delivered by the accused at Nanjappa Chettiyar, Thiruvamana Mandapam conducted by the Paventhar Bharathidasan Ilakkia Mandram.

4. The offence alleged to have been committed by the accused is that the accused supported the L.T.T.E., a banned Terrorist Organisation with provoked and objectionable speech. He provoked the public against the Government and also to wage war against the democratic set up. The accused also involved in several other criminal cases filed and pending on the file of various Police Stations. Hence, the case against the respondent was brought into the provision of POTA.

5. It was stated before the trial Court by the State that the Principal Secretary to Government of Tamil Nadu by his letter dated 14.10.2006 had enclosed an order of the Review Committee under POTA to act in terms of the order and on the basis of the report of the Review Committee and the letter of the Secretary to Government, the said application was filed under Section 321 Cr.P.C. to withdraw the case as against the accused.

6. The learned trial Judge after quoting the provision under section 321 of Cr.P.C. mentioning the circumstances under which the prosecution could withdraw the application, interalia, in paragraph 13 of the order has stated that the application for withdrawal was filed by the Deputy Superintendent of Police and not by the Special Public Prosecutor. It is true that the Special Public Prosecutor has also signed the petition but that is not sufficient. Apart from that, no averments were found as to the satisfaction of the Prosecutor before taking a decision to file an application for withdrawal. Under such circumstances, it was not a fit case where withdrawal could be ordered. Accordingly, the application was dismissed by the trial Court.

7. After the application was dismissed, the prosecution took up another application rectifying the mistakes already crept in, in the earlier application. But the trial Judge was not ready to accept the same. Hence, dismissed the said application on 6.3.2008. The order made in the said Application, S.R.No.1/2008 in Spl.C.C.No.2/03 dated 6.3.2008 reads as follows:

"The contents of the petition were perused with the case records. It is seen that the petitioner has already filed similar application under Section 321 Cr.P.C. of withdrawing the case pending against the respondent accused. In Crl.M.P.No.472/06, this Court passed a detailed order on merits on 26.11.07, dismissing the similar request made by the petitioner at present. In that order elaborate reasons have been given for the dismissal under section 321 Cr.P.C. In this application, the petitioner has filed clarification as much as substituting for the omissions made in the earlier application. In view of Section 362 of Cr.P.C. when an final order has been passed disposing of a case no alteration or review can be done by the Judge except for a clerical or arithmetical error. The relief sought for in Crl.M.P.No.472/06 and this application is one and the same. Final order has been passed in earlier application filed under Section 321 Cr.P.C. Accepting this application into court for further scrutiny will only amount to reviewing the order passed by this court earlier, which is not permissible. Therefore, the above petition is rejected in view of the law laid down under Section 362 of Cr.P.C. and as this court does not have power to review its order."

Under such circumstances, this appeal has arisen.

8. The only contention putforth by the Special Public Prosecutor for the State is that, in the instant case, it is true that the application was filed for withdrawal of the case under section 321 Cr.P.C. and it was a fit case where withdrawal should have been ordered but the trial Court found certain technical defects and dismissed the application. Even the materials available did not make out a prima facie case. Under such circumstances, the learned trial Judge should have ordered for withdrawal of the case by the prosecution.

9. The Court heard the learned counsel for the respondent. After doing so, the Court is of the considered opinion that there is no infirmity in the order made by the trial Judge. It was an application filed by the prosecution under section 321 Cr.P.C. The language and linguistic would make it clear that the application has got to be filed by the Special Public Prosecutor subject to the satisfaction of the Prosecutor and thus, found a mistake in the application filed. Hence, the trial Judge has dismissed the application and rightly too. Under such circumstances, the Court is unable to appreciation the contention now putforth by the learned Special Public Prosecutor. At the same time, the learned Special Public Prosecutor brought to the notice of the Court the decision of the Apex Court reported in (2009)1 Supreme Court Cases (Crl.) 620 ( Mahmadhusen Abdulrahim Kalota Shaikh(2) v. Union of India) wherein it is held as follows:

"24. The POTA accused contend that the clear legislative intent is that after the repeal of POTA continuance of any proceedings initiated under POTA, continuance of any proceedings initiated under POTA in which cognizance has been taken by the Court, shall be subject to the opinion of the Review Committee under Section 2(3) of the repealing Act and once the Review Committee holds that there was no prima facie case to continue the proceedings against the accused, the case shall be deemed to have been withdrawn with effect from the date of issuance of the direction by such Review Committee. It is submitted that in such cases, Section 321 of the Code would have no application and there is neither any need for the Public Prosecutor to file any application for withdrawal from prosecution, nor any need or occasion for the court to consider whether consent should be given for such withdrawal from prosecution, as the proceedings are deemed to have been withdrawn with effect from the date of the issuance of the direction by the Review Committee.

25. The counsel for the State of Gujarat, on the other hand, contended that the High Court had rightly held that sub-section (3) of Section 2 of the repealing Act does not dispense with the requirements of Section 321 of the Code for withdrawal and that after the Review Committee formed an opinion, the same will have to be placed before the court by the Public Prosecutor, with an application and the court will have to independently consider such application and come to a conclusion whether it should consent to the prosecution being withdrawn or not."

							M.CHOCKALINGAM, J.									and		


The learned Special Public Prosecutor also took the Court to the materials placed before the trial Court. Under such circumstances, the Court is of the considered opinion that there cannot be any impediment for the prosecution to make a fresh application and place materials before the trial Court.

10. In view of the above, the prosecution is permitted to file a fresh application before the trial Court and if such an application is filed, the trial Judge is directed to consider the application afresh and pass orders in accordance with law. Accordingly, the criminal appeal is disposed of.

						(M.C.,J.)         (V.P.K.,J.)								  16.11.2009
Index : Yes/No
Internet : Yes/No.
1. The Special Judge, 
   (Prevention of Terrorism Act 2002)
   Chennai at Poonamallee
2. The Public Prosecutor,
   High Court, Chennai.															Crl.Appeal.No.657  of  2009