The order of the Supreme Court on Wednesday, upholding the constitutionality of the Pota Repeal Act and reaffirming that the decisions of the Pota review committee are valid, has again raised serious questions about the conclusions reached by the Justice Nanavati headed Commission of Inquiry.

The Commission’s conclusions are

primarily based on the police chargesheet and confessions of the accused arrested under Pota, all which have no legal sanctity now.

“It means two things. First that the Pota charges be dropped, and secondly, all the evidence collected under Pota is now of no use. The whole conspiracy case has been built on the evidence collected under Pota. Now, all of that no longer stand,” said Mukul Sinha, advocate representing the Jan Sangharsh Manch (JSM).

Furthermore, the decisions of the Pota review committee, which is binding on all subordinate courts where Pota cases are going on, was completely overlooked by the Nanvati Commission.

In fact, the order of the Central Review Committee on Pota was placed before the Nanavati Commission as an exhibit by the JSM, one of the parties appearing before it, and is part of the record. For reasons not disclosed, the Commission did not even once mention the order of the review committee in its 168-page report.

The review committee’s decision had categorically not accepted the police case where it was said the conspiracy was planned the night before the attack on the train at a guest house near the Godhra railway station.

It had said, “Regarding the conspiracy alleged to have been hatched during the night of February 26, 2002 at the Aman Guest House, this theory does not seem to be probable on the case of prosecution itself.”

While the Godhra accused can still be tried for criminal conspiracy under Section 120-B of the Indian Penal Code, under which they were booked in the first chargesheet filed on May 22, 2002, all the evidence collected in support of the conspiracy theory has been done under Pota.

The police case of conspiracy is primarily based on the confessions of one Jabir Behra recorded under the provisions of Pota.

However, Behra retracted his confession later, a fact noted by the Commission but not given any credence.