The Hindu : No embargo on POTA court powers: HC

Online edition of India's National Newspaper
Tuesday, Mar 04, 2003

Southern States

Southern States - Tamil Nadu

No embargo on POTA court powers: HC

By A. Subramani

CHENNAI MARCH 3. Settling a vital question of law and opening up an avenue to scores of POTA (Prevention of Terrorism Act) detenus for seeking bail, the Madras High Court today ruled that there was no absolute bar on their doing so within one year of detention.

Declaring as `erroneous' a contention by the POTA court that it could not entertain bail pleas — including by the Tamilar Desiya Iyakkam leader, P. Nedumaran — as the `mandatory' one-year period was yet to be over, a Division Bench said: "There is no embargo on the power of the court to consider a bail application and to grant bail... The proviso (of the POTA) does not really create any absolute embargo on the powers of the court".

On the impugned POTA court order that the applications of the petitioners were `premature', Justice V.S. Sirpurkar and Justice F.M. Ibrahim Kalifulla said: "... The court has presumed that the power to grant bail for these offences exists only via Section 49 (6) and that the sub-section will be applicable only after the expiry of one year from the date of the detention".

Mr. Nedumaran, Subha Veerapandian, Pavanan, A. Thayappan and Paranthaman, all belonging to the Tamilar Desiya Iyakkam, were arrested between July 3 and October 30 last. The special judge dismissed the pleas on a common point of law on the tenability of the bail applications made within a year of their arrest. N. Natarajan and K. Chandru, senior counsel for the petitioners, submitted that the power to grant bail flowed from Section 437 of the Cr.P.C. and a plain reading of sub-section (6) and proviso to sub-section (7) of Section 49 of the POTA did not in any manner spell out an embargo on the power of the court to grant bail.

Accepting the argument, the Bench said, "The error committed by the special court is that it considers sub-section (6) the sole repository of the power to grant bail. We clarify that the repository of the power to grant bail is Section 437 of the Code.''

"When we read sub-sections (6) and (7) conjointly, it is clear that if the bail application is made and is not resisted by the public prosecutor, then there is nothing to suggest that the court still does not have a power to grant bail... If we read an absolute bar in the proviso, then even where the prosecutor does not oppose the plea, the court will be divested of its power to grant bail."

Expressing its inability to accept the arguments of the Additional Solicitor-General of India, Altaf Ahmed, the Bench said, "if the bar is absolute as is being suggested, then even where a charge sheet is not filed within 180 days, the accused would have no right to apply for bail and the court would not have any right to grant the same".

The Bench, however, admitted that sub-section (7) departed from the normal rule in that it `heightens the burden of defence'. "Instead of showing that there is a prima facie case against the accused for his conviction, the accused would have to show that there is a prima facie case for his acquittal". Also, "sub-section (6) undoubtedly acknowledges the existing power of the court to grant bail, but suggests that the power shall not be used unless an opportunity is afforded to the public prosecutor of being heard".

Not going into the merits of the special court order, the Bench then said all factual and legal aspects would be open to the petitioners if they filed fresh bail applications in the court.

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