- (1.) In these appeals altogether 9 persons were arraigned before a Designated Court for the offences under Sections 3 and 4 of Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short TADA'). The four persons involved in this appeal were included in the above list of 9 accused. Taking qua from the decision of the Constitution Bench of this Court in Kartar singh v. State of Punjabi a Review committee was constituted by the State Government of Rajasthan. On the recommendations made by the Review Committee, an application was made before the Designated Court for withdrawal from prosecution in respect of 4 appellants in these two appeals. However, the designated Court did not accede to the said application as per the impugned order. Hence these appeal.
(2.) Learned counsel for the appellants has taken us through the confessional statement recorded, attributing the same to appellant, mumtaz Mohammad. He contended that even if the entire confessional statement is accepted as true, these appellants cannot be convicted, particularly in view of Section 94 of the Indian penal Code
(3.) We are not inclined to consider the said contention due to another development which took place subsequently. The Special Public prosecutor appointed for conducting the prosecution before the Designated Court concerned has now submitted a fresh application containing very many details to show how he reached the satisfaction envisaged in Section 321 of the Code of Criminal Procedure. Our attention has now been invited to a decision of this court in P. M. Tewari, Advocate v. State (NCT of Delhi) and Ors2. it is advantageous to have paragraphs 10, 11 and 12 of this decision and hence they are extracted below : "10.The observations in Kartar Singh have to be understood in the context in which they were made. It was observed that a review of the cases should be made by the High Power Committee to ensure that there was no misuse of the stringent provisions of the TADA Act and any case in which report to the tada Act was found to be unwarranted, the necessary remedial measures should be taken. The Review Committee is expected to perform its functions in this manner. If the recommendation of the review Committee, based on the material present, is, that resort to provisions of the TADA Act is unwarranted for any reason which permits withdrawal from prosecution for those offences, a suitable application made under Section 321, Cr. P. C. on that ground has to be considered and decided by the designated Court giving due weight to the opinion formed by the Public prosecutor on the basis of the recommendation of the High Court Committee. 11. It has also to be borne in mind that the initial invocation of the stringent provisions of the TADA Act is itself subject to sanction of the Government and, therefore, the revised opinion of the government formed on the basis of the recommendation of the High Power committee after scrutiny of each case should not be lightly disregarded by the court except for weighty reasons such as mala fides or manifest arbitrariness. The worth of the material to support the charge under the TADA Act and the evidence which can be produced, is likely to be known to the prosecuting agency and, therefore, mere existence of prima facie material to support the framing of the charge should not by itself be treated as sufficient to reduce the consent for withdrawal from prosecution. It is in the manner an application made to withdraw the charges of offences under the TADA act pursuant to review of a case by the review Committee has to be considered and decided by the Designated Courts. 12. The applications made under section 321, Cr. P. C. not having been decided on the basis indicated above, fresh applications made in all such cases pursuant to the recommendations of the review Committee or the revised opinion of the Government have to be considered and decided by the Designated courts in manner indicated above. ";