The Telegraph
Since 1st March, 1999
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Bail blow to Godhra accused

New Delhi, Sept. 8: The Supreme Court today set aside an order of Gujarat High Court granting bail to four accused in the Godhra train-burning incident that had triggered communal clashes throughout the state last year, but said they could move the special trial court constituted under the anti-terror legislation to seek bail.

A division bench of Justices S. Rajendra Babu and G.P. Mathur, in a 14-page judgment, said the high court should not have entertained the petition filed by the accused as the Prevention of Terrorism Act had been invoked against them. Under the act, an appeal can be made only after the designated special trial court rejects the bail plea.

Once the anti-terror court decides on the bail applications, the appellant or the prosecution can move the high court seeking bail or its cancellation, the apex court said, explaining the provisions of the anti-terror legislation.

As the accused have not approached the special court for bail, they should “first invoke the jurisdiction of the said court, which shall dispose of the matter expeditiously without being influenced by any observation made by the high court and any party feeling aggrieved thereby will have a right to prefer an appeal before the high court in accordance with section 34” of the act, explained Justice Mathur, writing the judgment for the bench.

Salimbhai Abdulgaffar Shaikh, Mohammad Hussein Abdulrahim Kalota, Siraj Abdulla Jamsa and Mohammad Abdul Sattar Giteli, who were granted bail by the high court, are accused of being involved in the burning of the Sabarmati Express at Godhra on February 27, 2002, leading to the death of 57 passengers.

The prosecution contended that the sessions court had rejected their bail plea even before cases were booked against them under the anti-terror legislation and the high court had granted bail despite the prosecution contention that bail pleas in such cases should first be heard by the anti-terror court.

The counsel for the accused contended that all the cases were foisted on these “leaders of the minority community on the basis of various statements of a few VHP leaders who were defeated in local corporation elections”.

The apex bench said “as a constitutional court” it would go only into the legality of an act and once a procedure is established in an act for bail applications, high courts could not invoke their original jurisdiction. An application for bail under the anti-terror legislation has to essentially first go before the special court established under the act and only then can an appeal go before the high court concerned.

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