New Socialist Movement

Tuesday’s Supreme Court order has rekindled the hopes of securing bail for close to 100 men lodged in Gujarat’s jails in connection with the Godhra train burning incident of February 27, 2002.

The Supreme Court’s decision where it upheld the constitutionality of the POTA Repeal Act and held the recommendations of the Central Review Committee on POTA to be valid, is also a setback to the Gujarat government in several important cases, most notably the Godhra train burning case.

With this Supreme Court order, the bail petitions of the Godhra accused that are pending in the Supreme Court will get a fresh lease of life. The procedure for bail is very stringent under POTA and the repeal has given vast powers to the public prosecutor to oppose a bail application.

The Supreme Court’s decision came in the case filed by Mohammad Hussain Kalota, one of the Godhra accused, who had challenged the decisions of the Gujarat High Court that had upheld the validity of the POTA Repeal Act and the Central Review Committee formed under it.

However, the division bench of the Gujarat High Court, while upholding the Repeal law, had placed a rider by insisting that the Committee’s decision would be subject to Section 321 of the Code of Criminal Procedure, which bestows upon the public prosecution a right to withdraw prosecution with the consent of the court.

This rider was challenged by Kalota in the Supreme Court which overruled it.

Eighty-two accused out of the 133 originally booked under POTA for committing acts of terrorism and being a part of the conspiracy to set on fire the Sabarmati Express carrying karsevaks from Ayodhaya, are lodged in jail.

Kalota’s advocate Mukul Sinha said: “It is an important judgment for all the accused still in jail in spite of the order of the Central Review Committee. The Committee had clearly said that there was no scope of any terrorist conspiracy in the Godhra case and all proceedings under POTA be dropped. The Supreme Court has upheld the validity of the POTA Review Committee’s powers to pass such an order and as of now it is totally binding on all courts of the land.”

However, the POTA Review Committee’s decision can be challenged before the High Court. In fact, a challenge of the committee’s orders on merits is pending before the Gujarat High Court but no stay has been granted by the High Court on the implementation of the Review Committee’s decision.

The POTA Review Committee had in its decision of May 16, 2005 concluded that there was not even a ‘prima facie case’ to show that the events that took place on February 27, 2002 that led to the burning of the S-6 coach of the Sabarmati Express were part of the terrorist conspiracy as defined under POTA.

The POTA Review Committee had also come to the conclusion that the Godhra case was a “simple case of unlawful assembly committing various offences under the Indian Penal Code and other Special Acts, but certainly not POTA.” 

(Source)