HC stays Uttar Pradesh move to free terrorism accused

Dealing something of a blow to Uttar Pradesh's vote-bank based politics, the Allahabad High Court today stayed the state government's order to withdraw cases against persons accused of terrorist activities, referring the matter to a larger bench.

The order was passed by a bench of Justices Rajeev Sharma and Mahendra Dayal on a public interest litigation (PIL) filed by local lawyer Ranjana Agnihotri and five others.

While referring the matter to a larger bench, the court said that it will pass a detailed order on Monday. Meanwhile it gave six weeks' time to the respondents, including the union and the state government, to file their reply; and four weeks for rejoinders thereafter.

The vacation bench in Allahabad referred the matter to a larger bench because earlier, a division bench of the high court had dismissed a similar petition.

In case of a difference of opinion in a matter between the two division benches of the high court, the bench hearing the matter can pass an interim order and refer the case to a larger bench.

The petitioners had sought direction for quashing an order issued by the Samajwadi Party government, led by Akhilesh Yadav, son of SP supremo Mulayam Singh, to withdraw cases against persons accused of terrorist activities, including bomb blasts in public places.

The order for withdrawing the cases against terrorism accused shall be kept in abeyance, the court said.

Appearing on behalf of the UP government, additional advocate general Bulbul Godiyal submitted that the PIL was not maintainable as earlier a similar petition was dismissed by the Allahabad bench.

She submitted that the Centre's permission was not required for withdrawing the cases.

Petitioner's counsel H S Jain opposed the submission of the state government and said sanction from the union government was certainly required for withdrawing the cases.

Jain further argued that the entire record of the terrorism accused was not produced by the state government as directed by the bench earlier. Instead only a list of their names was submitted with the affidavit.

The court had last Wednesday directed the state to file an affidavit of alleged terrorist whose cases were recently withdrawn and whether the consent of the central government had been obtained.

Adding a Constitutional twist to their case, the petitioners have also challenged the validity of Section 321 of the Criminal Procedure Code, which deals with provisions for withdrawing cases.

The PIL challenges the UP government's decision to withdraw terror cases against those accused in the 2007 serial blasts in Lucknow, Varanasi and Faizabad, in which 16 people were killed and more than 60 were injured.

At the earlier hearing on 5 June, the court had directed state authorities to present within two days the full list of terror accused whom the government was seeking to exonerate.

The PIL stated that in all terror cases, the government granted sanction for prosecution of the accused on the basis of material collected by the investigating agencies. Hence the government cannot recall, review or nullify the sanction orders by proceeding to withdraw these cases.

It further said that the accused were also booked under central legislations like the Unlawful Activities (Prevention) Act, Arms Act and Explosives Act.

Wheels within wheels
The government's decision to withdraw cases may not have been dictated by its hunger for Muslim votes. It was based on the report of what is known as the Nimesh Commission, which found discrepancies in arrests of Tariq Qasmi and Khalid Mujahid – indicating the usual ham-handed work of Indian police, who are quicker at arbitrary arrest and interrogation than at actual investigation.

Mujahid died in police custody on 18 May. Various social and Muslim organisations alleged foul play in Mujahid's death, forcing government to refer the case to the Central Bureau of Investigation.

The state government then promulgated an order to withdraw cases against 16 other Muslim youths booked for terror in different parts of the state.