SAQUIB ABDUL HAMEED NACHANversusSTATE OF MAHARASHTRA

                     [2010] 9 S.C.R. 833


            SAQUIB ABDUL HAMEED NACHAN                              A
                               v.
                 STATE OF MAHARASHTRA
          (Criminal Appeal Nos. 419-421 OF 2008)
                      AUGUST 11, 2010
                                                                    B
     [P. SATHASIVAM AND DR. B.S. CHAtJHAN, JJ.]

     Prevention of Terrorism Act, 2002: s.32 - Confession/
statement made u/s.32 by an accused person - Admissibility
of, against other co-accused - Held: Not admissible.                C
      Reference to larger bench: Questions referred to larger
'bench - After answering the questions, adjudication of matter
 on merits by larger bench - Held: Generally, there is no bar
 in deciding and considering the merits of the matter referred      0
 to the larger bench - However, after answering the reference
 by the larger Bench, it is for the reference court to decide the
 issue on merits on the basis of the answers given by the larger
 bench - Prevention of Terrorism Act, 2002.                  ·

    Reference was made by the Division Bench of the                 E
High Court for adjudication by the Full Bench of High
Court, on the nature and admissibility of the statement/
confession made by an accused under Section 32 of the
Prevention of Terrorism Act, 2002 (POTA).
                                                                    F
     The Full Bench answered the reference holding that
(1) the confessional statement recorded under Section 32
of POTA cannot be used as a substantive piece of
evidence against other co-accused and that (2) the
statement recorded under Section 32 of POTA is                      G
undoubtedly a statement made by a person and it can be
used for any purpose to the extent a statement under
Sections 161-164 of Cr.P.C. can be used.

     After answering the questions, the Full Bench
                        833                                         H
    834      SUPREME COURT REPORTS               [2010] 9 S.C.R.


A considered the claim of the parties on merits and remitted
  the matter back to the Special POTA Court for deciding
  the application of the original accused No.1 for discharge,
  on the ground mentioned therein and in the light of the
  observations made in the judgment. The appeals were
B filed challenging the conclusion as well the ultimate
  direction of the Full Bench of the High Court. By order
  dated 18.10.2005, this Court stayed the trial pending
  before the Special POTA Court. The writ petition under
  Article 32 of the Constitution by the accused no.4 and five
c others and the SLP by accused no.12 were filed for
  vacating the stay order dated 18.10.2005.

       Disposing of the appeals, the writ petition and the
    SLP, the Court

D      HELD: 1.1. The decision in *Navjot Sandhu's case
  makes it clear that a confession/statement made under
  Section 32 of Prevention of Terrorism Act, 2002 (POTA)
  by an accused person cannot be used as a piece of
  evidence for any purpose against the other co-accused.
E In this view of the matter, the decision of the Full Bench
  is set aside insofar as the applicability of confessional
  statement of an accused under Section 32 of POTA
  against the other co-accused is concerned. It is clarified
  that the decision of this Court in Navjot Sandhu's case
F shall govern the issue raised by the appellant. The
  interim order granted by this Court on 18.10.2005 staying
  the trial pending before the Special POTA Court is
  vacated. [Paras 10, 12] [847-C-H; 848-A]
      *State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru
G (2005) 11 sec 600 - relied on.
          State v. Nalini (1999) 5 SCC 253 - referred to.

          1.2. As regards the disposal of the matter by the Full
H
 SAQUIB ABDUL HAMEED NACHAN v. STATE OF                   835
              MAHARASHTRA
Bench on merits, generally, there is no bar in deciding         A
and considering the merits of the matter referred to the
Full Bench. However, normally, after answering the
reference by the larger Bench, it is for the reference Court
to decide the issue on merits on the basis of the answers
given by the larger Bench. In the case on hand, such            B
recourse was not followed by the Full Bench. As the
grievance of the appellant is not seriously disputed, it is
directed that the criminal writ petitions and the criminal
application be heard by the Division Bench of the High
Court on merits in the light of the decision in Navjot          c
Sandhu' s case. [Paras 11, 12] [847-D-G]
                     Case Law Reference:
   c2005) 11 sec soo        relied on           Paras 8,
                                                9,10,11,12      D
       (1999) 5 sec 253     referred to         Para 10
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 419-421 of 2008.
                                                                E
    From the Judgment & Order dated 05.11.2004 of the High
Court of Judicature at Bombay in Criminal Writ Petition Nos.
1650, 1742 & 983 of 2004.

                            WITH
                                                                F
W.P. (Crl.) No. 128 of 20013.

SLP (Crl.) D. No. 17899 of 2008.

   Akhil Sibal, Salim lnamdar, Sanjay Jain, Abhay Kumar,
Ranzing Tsering, Madhusmita Singh, Mushtaq Ahmad, Shaikh        G
Chandsaheb, Sanjay Kharde, Chinmoy A. Khaladkar, Asha
Gopalan Nair for the appearing parties.

    The Judgment of the Court was delivered by
                                                                H
    836      SUPREME COURT REPORTS                  [2010] 9 S.C.R.

A P. SATHASIVAM, J.

    Criminal Appeal Nos. 419-421 of 2008

      1. Aggrieved by the decision of the Full Bench of the High
  Court of Bombay dated 05.11.2004, the appellant has filed
B these appeals.

         2. In view of the limited issue, being the same covered by
    a subsequent decision of this Court and the course which we
    are going to adopt, we feel that there is no need to traverse
c   the factual details. After reference by a Division Bench, the Full
    Bench of the High Court of Bombay re-framed the following
    questions for adjudication which read as under:

          "Q.1 Whether Section 32 of the Prevention of Terrorism
          Act, 2002 so provides that a confession/statement made
D         under that section by an accused person can be used as
          a substantive piece of evidence against the other co-
          accused also?             ·

          Q.2 . In the event the answer to the question no.1 is in
E         negative, i.e. to say evidence is not substantive evidence
          in nature, to what extent such statement can be used in the
          trial?"

  After deliberations, the Full Bench answered the above
F questions as under:

          Ans. to Question No.1: In view of the discussion made
          above, in our considered view, the confessional statement
          recorded under Section 32 of POTA cannot be used as a
          substantive piece of evidence against other co-accused.
G
          Ans. to Question No.2: In our view, the statement
          recorded under Section 32 of POTA is undoubtedly a
          statement made by a person and it can be used for any
          purpose to the extent a statement under Sections 161-164
H         of Cr.P.C. can be used."
  SAQUIB ABDUL HAMEED NACHAN v. STATE OF                        837
      MAHARASHTRA [P. SATHASIVAM, J.]
     3. After answering the reframed questions, the Full Bench          A
considered the claim of the parties on merits and remitted the
matter back to the Designated Court for deciding the
application of the original accused No.1 for discharge, on the
ground mentioned therein and in the light of the observations
made in the judgment. The conclusion of the Full Bench as well          B
the ultimate direction is under challenge in the above appeals.

Writ Petition (Crl.) No. 128 of 2008

     4. Gulam Akbar Abdul Sattar Khotal, Accused No.4 and
five others filed this writ petition under Article 32 of the            C
Constitution of India seeking to issue a writ of mandamus to
the Special POTA Court to start the trial of the POTA Case No.
2 of 2003 in respect of the petitioners herein and for that
purpose to modify the order of this Court dated 18.10.2005
passed in Criminal Appeal Nos. 419-421 of 2008 entitled                 D
Saquib Abdul Hameed Nachan vs. State of Maharashtra.
In addition to the same, they also prayed for certain other
directions to the Special Court dealing with the case under
POTA Act.
                                                                        E
S.L.P.(Crl.) ... ...... .... (D.No. 17899/2008)

      5. Muzzamil Akhtar Abdul Raheem Ansari, Accused No.12
filed this petition from the Jail complaining that because of the
stay order granted by this Court on 18.10.2005 in Crl. Appeal
Nos. 419-421 of 2008 staying the trial pending before the               F
Special POTA Court, Mumbai, he has been prevented from
proceeding further in the trial, hence, prayed for appropriate
direction for vacating the stay order.

      6. Since the prayer in the 'writ petition' as well as the 'jail   G
petition' depends upon the disposal of the Crl. Appeal Nos.
419-421 of 2008, it is sufficient if we pass an order considering
the claim of the appellant in these appeals.

     7. Heard the respective counsel.
                                                                        H
    838      ·SUPREME COURT REPORTS                  [201 OJ 9 S.C.R.


A      8. Mr. Akhil Sibal, learned counsel appearing for the
  appellants in Crl. Appeal Nos. 419-421 of 2008, submitted that
  in view of the subsequent decision of this Court rendered in
  State (NCT of Delhi) vs. Navjot Sandhu @ Afsan Guru, (2005)
  11 SCC 600, the conclusion of the Full Bench cannot be
B sustained. He also submitted that in view of the same, the
  consequential direction to the POTA Court is also liable to be
  vacated.

       9. We have already noted the questions framed by the Full
  Bench of the High Court and the answers made therein.
C Subsequent to the decision of the Full Bench of the Bombay
  High Court, which is impugned in these appeals, the very same
  issue, viz., use of confessional statement made under Section
  32 of POTA by an accused person as a substantive piece of
  evidence against other co-accused and if the evidence is not
D a substantive evidence in nature, to what extent the statement
  can be used against other co-accused in the trial were
  considered by this Court in Navjot Sandhu's ca.Se(supra). The
  relevant portion of the judgment read as under:

E         "Law regarding confessions

                   27. We start with the confessions. Under the general
          law of the land as reflected in the Evidence Act, no
          confession made to a police officer can be proved against
          an accused. "Confessions" which is a terminology used in
F         criminal law is a species of "admissions" as defined in
          Section 17 of the Evidence Act. An admission is a
          statement, oral or documentary which enables the court to
          draw an inference as to any fact in issue or relevant fact.
          It is trite to say that every confession must necessarily be
G         an admission, but, every admission does not necessarily
          amount to a confession. While Sections 17 to 23 deal with
          admissions, the law as to confessions is embodied in
          Sections 24 to 30 of the Evidence Act. Section 25 bars
          proof of a confession made to a police officer. Section 26
H         goes a step further and prohibits proof of confession made
SAQUIB ABDUL HAMEED NACHAN v. STATE OF                   839
   - MAHARASHTRA [P. SATHASIVAM, J.]
  by any person while he is in the custody of a police officer, A
  unless it be made in the immediate presence of a
  Magistrate. Section 24 lays down the obvious rule that a
  confession made under any inducement, threator promise
  becomes irrelevant in a criminal proceeding. Such
  inducement, threat or promise need not be proved to the B
  hilt. If it appears to the court that the making of the
  confession was caused by any inducement, threat or
  promise proceeding from a person in authority, the
  confession is liable to be excluded from evidence. The
  expression "appears" connotes that the court need not go      c
  to the extent of holding that the threat, etc. has in fact been
  proved. If the facts and circumstances emerging from the
  evidence adduced make it reasonably probable that the
  confession could be the result of threat, inducement or
  pressure, the court will refrain from acting on such
                                                                  0
  confession, even if it be a confession made to a Magistrate
  or a person othe~ than a police officer. Confessions
  leading to discovery of a fact which is dealt with under
   Section 27 is an exception to the rule of exclusion of
   confession made by an accused in the custody of a police
   officer. Consideration of a proved confession affecting the E
   person making it as well as the co-accused is provided
   for by Section 30. Briefly and broadly, this is the scheme
   of the law of evidence vis-a-vis confessions. The allied
   provision which needs to be noticed at this juncture is
   Section 162 CrPC. It prohibits the use of any statement F
   made by any person to a police officer in the course of
   investigation for any purpose at ~ny enqµiry or trial in
   respect of any offence under investigation. However, it can
               a
 ·be used to limited extent to contradict a witness as
   provided for by Section 145 of the Evidence Act. Sub- G
   section (2) of Section 162 makes it explicit that the
   embargo laid down in the section shall not be deemed to
   apply to any statement falling within clause (1) of Section
   32 or to affect the provisions of Section 27 of the Evidence
   Act.                                                           H
    840      SUPREME COURT REPORTS                    [2010) 9 S.C.R.


A              28. In the Privy Council decision of Pakala Narayana
          Swami v. Emperor Lord Atkin elucidated the meaning and
          purport of the expression "confession" in the following
          words: (AIR p. 52)

                "[A] confession must either admit in terms the
B
          offence, or at any rate substantially all the facts which
          constitute the offence. An admission of a gravely
          incriminating fact, even a conclusively incriminating fact is
          not of itself a confession .... "

c                 29. Confessions are considered highly reliable
          because no rational person would make admission
          against his interest unless prompted by his conscience to
          tell the truth. "Deliberate and voluntary confessions of guilt,
          if clearly proved are among the most effectual proofs in
D         law." (Vide Taylor's Treatise on the Law of Evidence, Vol.
          I.) However, before acting upon a confession the court must
          be satisfied that it was freely and voluntarily made. A ·
          confession by hope or promise of advantage, reward or
          immunity or by force or by fear induced by violence or
E         threats of violence cannot constitute evidence against the
          maker of the confession. The confession should have been
          made with full knowledge of the nature and consequences
          of the confession. If any reasonable doubt is entertained
          by the court that these ingredients are not satisfied, the
          court should eschew the confession from consideration. So
F
          also the authority recording the confession, be it a
          Magistrate or some other statutory functionary at the pre-
          trial stage, must address himself to the issue whether the
          accused has come forward to make the confession in an
          atmosphere free from fear, duress or hope of some
G
          advantage or reward induced by the persons in authority.
          Recognising the stark reality of the accused being
          enveloped in a state of fear and panic, anxiety and despair
          while in police custody, the Evidence Act has excluded the
          admissibility of a confession made to the police officer.
H
SAQUIB ABDUL HAMEED' NACHAN v. STATE OF                    841
    MAHARASHTRA [P. SATHASIVAM, J.]
       30. Section 164 CrPC is a salutary provision which          A
 lays down certain precautionary rules to be followed by the
 Magistrate recording a confession so as to ensure the
 voluntariness of the confession and the accused being
 placed in a situation free from threat or influence of the
 police.                                                           B

       31 . Before we turn our attention to the more specific
 aspects of confessions under POTA, we should have a
 conspectus of the law on the evidentiary value of
 confessions which are retracted, which is a general feature       C
 in our country and elsewhere.

      41. What is the legal position relating to
 CONFESSIONS UNDER POTA is the next important
 aspect.
                                                                   D
       42. Following the path shown by its predecessor,
  namely, the TADA Act, POTA marks a notable departure
  from the general law of evidence in that it makes the
  confession to a high-ranking police officer admissible in
  evidence in the trial of such person for the offence under       E
  POTA. As regards the confession to the police officer, the
  TADA regime is continued subject to certain refinements.

        43. Now, let us take stock of the provisions
  contained in Section 32 of POTA. Sub-section (1) of this
  section starts with a non obstante provision with the words:     F
  "Notwithstanding anything in the Code [of Criminal
  Procedure] or in the Indian Evidence Act.. .. " Then it says:

  "subject to the provisions of this section, a confession
  made by a person before a police officer not lower in rank       G
  than a Superintendent of Police and recorded by such
  police officer either in writing or on any mechanical or
  electronic device ... shall be admissible in the trial of such
  person for an offence under this Act or the rules."

  By this provision, the ban against the reception of              H
    842       SUPREME COURT REPORTS                   [2010] 9 S.C.R.


A         confessional statements made to the police is lifted. That
          is why the non obstante clause. This sub-section is almost
          identical to Section 15(1) of TADA excepting that the
          words "or co-accused, abettor or conspirator" occurring
          after the expression "in the trial of such person" were
B         omitted. The other four sub-sections (2) to (5) of Section
          32 are meant to provide certain safeguards to the accused
          in order to ensure that the confession is not extracted by
          threat or inducement. Sub-section (2) says that the police
          officer, before recording a confession should explain in
c         writing to the person concerned that he is not bound to
          make a confession and that the confession if made by him
          can be used against him. The right of the person to remain
          silent before the police officer called upon to record the
          confession is recognised by the proviso to sub-section (2).
           Sub-section (3) enjoins that the confession shall be
D
           recorded in a threat-free atmosphere. Moreover, it should
           be recorded in the same language as that used by the
           maker of the confession. The most important safeguard
           provided in sub-sections (4) and (5) is that the person from
          whom the confession was recorded is required to be
E          produced before a Chief Metropolitan Magistrate or Chief
           Judicial Magistrate, within 48 hours, together with the
           original statement of confession in whatever manner it was
           recorded. The CMM or the CJM shall then record the
           statement made by the person so produced. If there is any
F          complaint of torture, the police shall be directed to produce
           the person for medical examination and thereafter he shall
           be sent to judicial custody.

          Use of confession under POTA against a co-accused
G
               49. Now, let us examine the question whether
          Section 32(1) of POTA takes within its sweep the
          confession of a co-accused. Section 32(1) of POTA which
          makes the confession made to a high-ranking police officer
          admissible in the trial does not say anything explicitly about
H
SAQUIB ABDUL HAMEED NACHAN v. STATE OF                     843
     MAHARASHTRA [P. SATHASIVAM, J.]
  the use of confession made by a co-accused. The words            A
  in the concluding portion of Section 32(1) are:

        "shall be admissible in the trial of such person for an
  offence under this Act or the rules made thereunder."

         It is, however, the contention of the learned Senior      B
  Counsel Shri Gopal Subramanium that Section 32(1) can
 .be so construed as to include the admissibility of
  confessions of the co-accused as well. The omission of
  the words in POTA "or co-accused, abettor or conspirator"
  following the expression "in the trial of such person" which     C
  are the words contained in Section 15(1) of TADA does
  not make material difference, according to him. It is his
  submission that the words "co-accused", etc. were
  included by the 1993 Amendment of TADA by way of
  abundant caution and not because the unamended section           D
  of TADA did not cover the confession of the co-accused.
  According to the learned Senior Counsel, the phrase "shall
  be admissible in the trial of such person" does not restrict
  the admissibility only against the maker of the confession.
  It extends to all those who are being tried jointly along with   E
  the maker of the confession provided they are also
  affected by the confession. The learned Senior. Counsel
  highlights the crucial words "in the trial of such person" and
  argues that the confession would not merely be admissible
  against the maker but would be admissible in the trial of        F
  the maker which may be a trial jointly with the other
  accused. persons. Our attention has been drawn to the
  provisions of CrPC and POTA providing for a joint trial in
  which the accused could be tried not only for the offences
  under POTA but also for the offences under IPC. We find          G
  no difficulty in accepting the proposition that there could
  be a joint trial and the expression "the trial of such person"
  may encompass a trial in which the accused who made
 .the confession is tried jointly with the other accused. From
  that, does it follow that the confession made by one
                                                                   H
    844      SUPREME COURT REPORTS                    [2010] 9 S.C.R.


A         accused is equally admissible against others, in the
          absence of specific words? The answer, in our view,
          should be in the negative. On a plain reading of Section
          32(1), the confession made by an accused before a police
          officer shall be admissible against the maker of the
B         confession in the course of his trial. It may be a joint trial
          along with some other accused; but, we cannot stretch the
          language of the section so as to bring the confession of
          the co-accused within the fold of admissibility. Such
          str~tching of the language of law is not at all warranted

c         especially in the case of a law which visits a person with
          serious penal consequences [vide the observations of
          Ahmadi, J. (as he then was) in Niranjan Singh v. Jitendra,
          sec at p. 86, which were cited with approval in Kartar
          Singh case. We would expect a more explicit and
          transparent wording to be employed in the section to rope
D
          in the confession of the co-accused within the net of
          admissibility on a par with the confession of the ma.ker. An
          evidentiary rule of such importance and grave
          consequence to the accused could not have been
          conveyed in a deficient language. It seems to us that a
E         conscious departure was made by the framers of POTA
          on a consideration of the pros and cons, by dropping the
          words "co-accused", etc. These specific words consciously
          added to Section 15(1) by the 1993 Amendment of TADA
          so as to cover the confessions of the co-accused would
F         not have escaped the notice of Parliament when POTA
          was enacted. Apparently, Parliament in its wisdom would
          have thought that the law relating to confession of the co-
          accused under the ordinary law of evidence, should be
          allowed to have its sway, taking a cue from the
G          observations in Kartar Singh case at para 255. The
           confession recorded by the police officer was, therefore,
           allowed to be used against the maker of the confession
           without going further and transposing the legal position that
           was obtained under TADA. We cannot countenance the
H
  .
' ,_
       .
SAQUIB ABDUL HAMEED NACHAN v. STATE OF                     845
    MAHARASHTRA [P. SATHASIVAM, J.]

  contention that the words "co-accused", etc. were added          A
  in Section 15(1) of TADA, ex majore cautela.

          50. We are, therefore, of the view that having regard
  to all these weighty considerations, the confession of a co-
  accused ought not to be brought within the sweep of              B
  Section 32(1). As a corollary, it follows that the confessions
  of the first and second accused in this case recorded by
  the police officer under Section 32(1 ), are of no avail
  against the co-accused or against each other. We also
  agree with the High Court that such confessions cannot be
  taken into consideration by the Court under Section 30 of        C
  the Evidence Act. The reason is that the confession made
  to a police officer or the confession made while a person
  is in police custody, cannot be proved against such
   person, not to speak of the co-accused, in view of the
   mandate of Sections 25 and 26 of the Evidence Act. If           D
  there is a confession which qualifies for proof in
   accordance with the provisions of the Evidence Act, then
  of course, the said confession could be considered
   against the co-accused facing trial under POTA. But, that
   is not the case here.                                           E

  Section 10 of the Evidence Act

       66. The next question is whether the confession of
  the accused which cannot be proved against a co-
  accused either under Section 32(1) of POTA or under              F
  Section 30 of the Evidence Act, would be relevant
  evidence against the co-accused involved in the
  conspiracy by reason of Section 10 of the Evidence Act.
  The section reads thus:
                                                                   G
        "10. Things said or done by conspirator in reference
  to common design.-Where there is reasonable ground
  to believe that two or more persons have conspired
  together to commit an offence or an actionable wrong,
  anything said, done or written by any one of such persons        H
    846       SUPREME COURT REPORTS                    [2010] 9 S.C.R.


A         in reference to their common intention, after the time when
          such intention was first entertained by any one of them, is
          a relevant fact as against each of the persons believed to
          be so conspiring, as well for the purpose of proving the
          existence of the conspiracy as for the purpose of showing
B         that any such person was a party to it."

               67. In Kehar Singh v. State (Delhi Admn.)
          Jagannatha Shetty, J., has analysed the section as follows:
          (SCC p. 734, para 278)

C                "278. From an analysis of the section, it will be seen
          that Section 10 will come into play only when the court is
          satisfied that there is reasonable ground to believe that two
          or more persons have conspired together to commit an
          offence. There should be, in other words, a prima facie
D         evidence that the person was a party to the conspiracy
          before his acts can be used against his co-conspirator.
          Once such prima facie evidence exists, anything said,
          done or written by one of the conspirators in reference to
          the common intention, after the said intention was first
E         entertained, is relevant against the others. It is relevant not
          only for the purpose of proving the existence of conspiracy,
          but also for proving that the other person was a party to
          it."

                68. Section 10 of the Evidence Act is based on the
F         principle of agency operating between the parties to the
          conspiracy inter se and it is an exception to the rule
          against hearsay testimony. If the conditions laid down
          therein are satisfied, the act done or statement made by
          one is admissible against the co-conspirators (vide Sardul
G         Singh Caveeshar v. State of Maharashtra).

         10. After adverting to various decisions including the State
    vs. Nalini, (1999) 5 sec 253, finally this Court concluded as
    under:
H
  SAQUIB ABDUL HAMEED NACHAN v. STATE OF                    847
      MAHARASHTRA [P. SATHASIVAM, J.]
    "In the light of the foregoing discussion, we have no option    A
    but to reject the contention of Mr. Gopal Subramanium on
    the interpretation of Section 10, though not without
    hesitation. However, in view of the fact that the
    confessional statement is not being relied on, the question
    of applicability of Section 10 fades into insignificance."      B

The decision in Navjot Sandhu's case (supra) makes it clear
that a confession/statement made under Section 32 of POTA
by an accused person cannot be used as a piece of evidence
for any purpose against the other co-accused. [Emphasis
supplied]. We reiterate the same. In this view of the matter,       C
said conclusion, the decision of the Full Bench is set aside
insofar as the applicability of confessional statement of an
accused under Section 32 of POTA against the other co-
accused is concerned.
                                                                    D
   · 11. Mr. Akhil Sibal strenuously contended that after
answering the reference, the Full Bench, without giving notice
to the counsel, without affording any opportunity to the parties
and without considering the merits of the matter disposed of
the main matter which is not warranted and permissible.             E
Generally, there is no bar in deciding and considering the merits
of the matter referred to the Full Bench. Normally, after
answering the reference by the larger Bench, it is for the
reference Court to decide the issue on merits on the basis of
the answers given by the larger Bench. In the case on hand,
                                                                    F
such recourse has not been followed by the Full Bench .
Counsel for other respondents have not seriously disputed the
grievance of the counsel for appellants herein. In the light of
the assertion by the counsel and not seriously disputed by other
parties, we are of the view that now it is for the Division Bench
to consider the claim of the parties on merits on the basis of      G
the ratio in Navjot Sandhu' s case(supra) .

    . 12. Inasmuch as we are disposing of the Crl. Appeal Nos.
419-421 of 2008, we vacate the interim stay order granted by
this Court on 18.10.2005 staying the trial pending before the       H
    848      SUPREME COURT REPORTS                   [2010] 9 S.C.R.


A   Special POTA Court, Mumbai. In view of the same, no
    separate orders are required in Writ Petition (Crl.) No. 128 of
    2008 and S.L.P.(Crl.) ...... (D.No. 17899 of 2008). However, in
    the light of the above discussion, we pass the following order:

          (i) The impugned judgment of the Full Bench of the
B
          Bombay High Court dated 05.11.2004 is set aside and we
          clarify that the decision of this Court in Navjot Sandhu's
          case(supra) shall govern the issue raised by the appellant.

          (ii) Criminal Writ Petition No. 1742 of 2004 with Criminal
c         Application Nos. 4260-4263 of 2004, Criminal Writ Petition
          Nos. 1650, 1992, 2001 and 983 of 2004 be heard by a
          Division Bench on merits in the light of the decision in
          Navjot Sandhu's case (supra) as expeditiously as
          possible.
D
          (iii) In view of the vacation of the interim order passed
          by this Court on 18.10.2005, the petitioners in Writ Petition
          (Crl.) No. 128 of 2008 and S.L.P.(Crl.) ...... (D.No.17899/
          2008) are free to move the POTA Court for appropriate
          relief and it is for the concerned court to decide as per law
E         applicable.

         13. We have not expressed anything on the merits of the
    claim made by the parties except pointing out the legal position.

F         14. In view of the foregoing reasons, Criminal Appeal Nos.'
    419-421 of 2008 are allowed on the above terms. Writ Petition
    (Crl.)No. 128 of2008 and S.L.P.(Crl.) ..... (D.No. 17899 of2008)
    are disposed of as indicted above.

     D.G.                                       Matters disposed of.