In what could be a body blow to the Samajwadi Party (SP) government, UP, the lucknow bench of the Allahabad High Court, on Thursday, observed that the state government cannot withdraw terror cases against persons accused of indulging in terror activities without prior permission of the Central Government.
The aforesaid observation of the larger bench comprising justices Devi Prasad Singh, Ajai lamba and Ashok Pal Singh on questions raised by a division bench on a PIl filed by Ranjana Agnihotri and other local lawyers.The PIl had demanded quashing of the impugned order of state government for withdrawal of cases against people accused of terrorist activities and serial blasts in Varanasi, Gorakhpur, Bijnor, lucknow, Kanpur, Rampur and Barabanki districts.
The larger bench observed that a state government can not withdraw prosecution under central acts without prior permission of the Central Government. The bench further observed that for offences under Unlawful Activities (Prevention) Act, Explosive Substances Act and Arms Act and the offences falling in Chapter VI of IPC or alike offences, the executive power of the Union of India extends and hence the prior permission of the Central Government with regard to withdrawal of prosecution shall be necessary. The bench also observed that the prosecution cannot be withdrawn without assigning reason.
"If an application is moved for withdrawal from prosecution in a case relating to terrorism and waging of war against the country, specific and special reason has to be assigned," the bench observed.It may be noted that on June 7, while staying the State Government’s order to withdraw cases against people accused of terror activities, a division bench comprising justices Rajeev Sharma and Mahendra Dayal, had referred the matter to the chief justice requesting to constitute a larger bench to look into the four issue framed by the division bench.
The Court’s order came after the state government withdrew terror cases against 19 persons, Shamin aka Sarfaraz, Md Tariq Kazmi, Ahamd Hasan aka Babu, Mukhtar Husain, Md Ali, Azizur-rehman, Naushad Hafiz, Nurul Islam, Yakoob, Nasir Husain, Md Kalim, Saed Abdul Mobin, Imtiaz Ali, Sitara Begum, Arshad, Maqsood Javed aka Guddu, Taj Mohammed and Khalid Mujahid, who were accused in terror cases.
The afore said details were given to the court by the principal secretary Home in its affidavit dated August 23, 2013, in which the state government had stated that in some of the cases chargesheet was filed while in other cases investigation was under way while some were going under trail. But later a notification was issued by the state government due to which the cases could not be proceeded further and lying pending.
The petitioners have also challenged the validity of section 321 of the CrPC (provision for withdrawing the cases) stating that the present section came under the purview of central act meaning thereby that a permission from the central government should be sought by the state government for issuing the notification on withdrawal of the case.
After answering queries of the division bench, the larger bench remanded the matter to the division bench to decide the matter on merit after hearing the parties.