Full Text
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.491 OF 2024
Munib Iqbal Memon
Aged:42 years, Occu: Tailor
Flat No. 24, 4th
Floor, Global Heights, Kondwa, Pune.
(Presently in Judicial Custody ...Appellant
At Mumbai Central Prison, Mumbai.) (Orig. Accused No.5)
At the instance of Anti-Terrorism Squad ...Respondent
Kala Chowkie, Mumbai. (Orig. Complainant)
Mr. Mubin Solkar a/w Ms. Tahera Qureshi, Mr. Tahir Hussain, and Mr. Anas Shaikh, for the Appellant.
Mr. Vaibhav Bagade, Spl. P.P. a/w Ms. Kranti T. Hiwrale, A.P.P for the
Respondent – State.
N. S. Chitnis 1/26
JUDGMENT
1. Heard learned counsel for the parties.
2. Admit. Learned Special Public Prosecutor waives notice on behalf of the respondent-State.
3. By this appeal, preferred under Section 21(4) of the National Investigation Agency Act, ('NIA Act’), the appellant seeks quashing and setting aside of the impugned order dated 5th February 2024, passed by the learned Special Judge, City Civil and Sessions Court, Greater Bombay in Bail Application (Exhibit–445) filed in Special Case No.7 of 2013, by which, the appellant’s application (Exhibit–445) seeking his enlargement on bail, came to be rejected by the said Court. Accordingly, the appellant seeks his enlargement on bail in connection with C.R. No. 9 of 2012 registered with the Anti Terrorism Squad Police Station (‘ATS’), Mumbai (Original C.R. No.168 of 2012, registered with the Deccan Police Station, Pune), for the alleged offences punishable under Sections 307, 435 and 120B of
N. S. Chitnis 2/26 the Indian Penal Code (‘IPC’); Sections 3, 4 and 5 of the Explosive Substances Act; Sections 3 and 25 of the Arms Act; Sections 16(1)(b), 18, 20, 23, 38 and 39 of the Unlawful Activities (Prevention) Act of 1967 (‘UAPA’) as amended in 2008; and, under Sections 3(1)(ii), 3(2) and 3(4) of the Maharashtra Control of Organized Crime Act (‘MCOC Act').
4. Admittedly, the appellant’s first appeal being Criminal Appeal No.299 of 2022 seeking his enlargement on bail in connection with the aforesaid C.R. was dismissed by this Court vide order dated 27th September 2022, having regard to Section 43(D)(5) of the UAPA, after observing that there are reasonable grounds for believing that the accusations against the appellant are prima facie true. The said order dismissing the appellant’s first appeal seeking his enlargement on bail is at Exhibit – A, at page 27 of the appeal.
5. The aforesaid appeal has been filed by the appellant on the ground of delay in the trial, resulting in infringement of the appellant’s
N. S. Chitnis 3/26 constitutional right guaranteed under Article 21 of the Constitution of India i.e. right to speedy trial.
6. Mr. Solkar, learned counsel for the appellant submits that the appellant is in custody i.e. pre-trial detention, since 26th December 2012 i.e. for almost 11 ½ years. He submits that although the incident took place in December 2012, charge came to be framed in the said case only in 2022 and it is only in February 2024 that the first witness stepped into the witness-box. Learned counsel submits that despite this Court’s order dated 27th September 2022 expediting the appellant’s trial, till date, the prosecution has examined only 7 witnesses and that the 8th witness is in the witness-box. He submits that the prosecution had made a statement that although there are 300 odd witnesses, they propose to examine only 107 witnesses. He submits that since no death had occurred, none of the offences are punishable with death and that the minimum sentence for the offences with which the appellant is charged under the UAPA are under 5 years, extending upto imprisonment for life. He submits that although
N. S. Chitnis 4/26 charge was framed on 4th April 2022, for the offence punishable under Sections 307 r/w 120B, Sections 435 r/w 120B of the IPC and Section 16(1)(b) of the UAPA against the appellant in addition to the other Sections under the IPC, UAPA as well as under MCOC Act, the aforesaid Sections i.e. Sections 307 r/w 120B, Sections 435 r/w 120B of the IPC and Section 16(1)(b) of the UAPA came to be amended and as such deleted qua the appellant on 20th April 2022. Mr. Solkar relied on the roznama which is there in the compilation of the documents tendered by him. Mr. Solkar submits that after the said ground was argued before this Court i.e. the appellant is not charged for the offences under Sections 307 r/w 120B of the IPC and other sections, the prosecution clandestinely moved an application and again got the said sections added and that now the appellant has moved the trial Court, pointing to the conduct of the prosecution and that the said application is pending before the trial Court.
7. Mr. Solkar relied on the judgment of the Apex Court in the case of Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari v/s State
N. S. Chitnis 5/26 of Uttar Pradesh[1], in which the Apex Court by emphasizing the right to life and personal liberty enshrined under Article 21 of the Constitution of India granted bail to the accused therein, since the right of the accused-undertrial under Article 21 of the Constitution of India had been infringed. He submitted that in the said judgment it is categorically stated that the statutory restrictions would not come in the way, where there is a delay in the trial. Learned counsel submitted that the Apex Court has further observed that ‘Even in the case of interpretation of a penal statute, howsoever stringent it may be, a constitutional court has to lean in favour of constitutionalism and the rule of law of which liberty is an intrinsic part’.
8. Mr. Bagade, learned Special Public Prosecutor submitted that there is no change of circumstance warranting grant of bail to the appellant, more particularly when the appellant’s appeal seeking his enlargment on bail i.e. Criminal Appeal No.299 of 2022, was dismissed by this Court on merits vide order dated 27th September
2022. He submitted that the trial of the appellant has already been
N. S. Chitnis 6/26 expedited and that the prosecution will take all steps to ensure that the trial will conclude at the earliest.
9. Perused the papers. At the outset, we may note that the appellant had preferred Criminal Appeal No.299 of 2022 seeking his enlargement on bail in connection with C.R. No. 9 of 2012 registered with the Anti Terrorism Squad Police Station (‘ATS’), Mumbai i.e. original C.R. No.168 of 2012, registered with the Deccan Police Station, Pune, in this Court. By the said appeal, the appellant had sought bail on merits, on parity, as well as, on the ground of delay in commencement of the trial i.e. at the relevant time, the appellant had undergone pre-trial detention of about 9 years and 9 months. The said order by which the appeal seeking bail was dismissed is at Exhibit – A, at page 27 of the appeal.
10. The prosecution case, is as under: The case pertains to five bomb blasts that took place in Pune City on 1st August, 2012 at around 7:00 p.m. in the areas of
N. S. Chitnis 7/26
Deccan Gymkhana, Bal Gandharv Rang Mandir and other adjoining areas. A live bomb was also recovered from one of the spots. The bombs which were used in the commission of the offences were placed in bicycle baskets. All the bicycles were placed in one of the prominent business and crowded areas in Pune. Pursuant to the said five blasts that took place at various locations in Pune City, an FIR came to be lodged initially with the Deccan Police Station, Pune as against unknown persons. The offences alleged were Sections 307, 427 and 120B of the Indian Penal Code etc. Thereafter, the investigation came to be transferred to the ATS, Mumbai. Nine persons came to be arrested in connection with the aforesaid offences and some accused are stated to be still absconding. It is the prosecution case, that the said bomb blasts were planned by the accused with the intent of striking terror in the minds of the people and for causing deaths/injuries to persons and/or causing loss or damage or destruction of property. It is the prosecution case, that the said bomb blasts were planned to avenge the death of one Quatil Siddique, a member of a banned terrorist organization, Indian Mujahideen. We may note here, that Quatil
N. S. Chitnis 8/26
Siddique was arrested in connection with the conspiracy to commit bomb blast at Dagadu Sheth Ganpati Mandir in Pune. In connection with the said case, Quatil Siddique was arrested and was lodged at Yerwada Central Jail, Pune, where he was murdered by two persons, whilst in jail. It is the prosecution case, that to avenge the death of Quatil Siddique, the members of the Indian Mujahideen, a banned terrorist organization, acting as an organized crime syndicate conspired to cause bomb blasts, in Pune City. It is alleged by the prosecution, that initially there was a plan to kill the assailants of Quatil Siddique when they were brought to Court, by firing at them, however, as the said plan could not be executed, it was decided to cause bomb blasts.
11. Whilst considering the appellant’s first appeal seeking his enlargement on bail, we had noted that admittedly even according to the prosecution, the appellant was not amongst the accused, who had planted the bombs on bicycles on 1st August, 2012. As far as the appellant is concerned, his role was only spelt out by the co-accused -
N. S. Chitnis 9/26
Irfan Mustafa Landge (original accused No.4), Farooq Bagwan (original accused No.6) and Firoz @Hamza Sayyed (original accused No.3) in their confessional statement, recorded under Section 18 of the MCOC Act on 9th January, 2013. The said three confessional statements of the aforesaid accused recorded under Section 18 of the MCOC Act revealed (i) that the appellant was a friend of Quatil Siddique, who was killed in jail custody; (ii) that the appellant was working with Firoz @Hamza (original accused No.3), in his tailoring shop (iii) that the appellant was present in the secret meeting which took place on 8th July 2012 at Firoz @Hamza's (original accused No.3) tailoring shop, when the conspiracy to plant bombs was hatched; (iv) that the appellant alongwith another co-accused i.e. Farooq Bagwan (original accused No.6), who was present in the said meeting had agreed to purchase SIM Cards by using fake documents;
(v) that pursuant thereto, the appellant was assigned with the task of procuring bogus Sim Card based on fabricated documents prepared by some of the accused; (vi) that the appellant visited the shop and purchased the Sim Card in the name of Mohsin Shaikh (vii) that the
N. S. Chitnis 10/26 statement of the shopkeeper shows that the appellant had purchased the Sim Card in the name of Mohsin Shaikh (viii) that the said Sim Card was used in the commission of the offence; and (ix) that the appellant was entrusted to keep Firoz’s mobile with him, till Firoz’s return, post the blasts.
12. Thus, having regard to the confessional statements of the co-accused, which prima facie revealed the complicity of the appellant in the crime, we prima facie came to the conclusion that there were no reasonable grounds for believing that the appellant was not guilty of the offences with which he was charged, as mandated under Section 21(4) of the MCOC Act nor were there any reasonable grounds for believing that the allegations against the appellant were not prima facie true, as mandated under Section 43(D)(5) of the UAPA and as such we rejected the appeal of the appellant seeking his enlargment on bail, on merits.
N. S. Chitnis 11/26
13. As far as parity as prayed for i.e. parity with co-accused - Sayed Arif Amil @Kashif Biyabani and Aslam Shabbir Sheikh @Bunty Jagirdar, is concerned, we found that there was no parity with the said co-accused.
14. Insofar as, delay in commencement of the trial was concerned, we in paras 18 and 19 of our order dated 27th September 2022 passed in the appellant’s first appeal being Criminal Appeal No.299 of 2022 seeking his enlargement on bail, had observed as under:- “18. As far as delay in commencement of the trial is concerned, it appears that charge was framed in the said case on 25th May 2022 and that the prosecution intends to examine about 107 witnesses. In this connection heavy reliance was placed on the judgment of the Apex Court in Shaheen Welfare Association (supra), in which the Apex Court considered the conflicting claims of personal liberty emanating from Article 21 of the Constitution of India and protection of the society from terrorist acts, which the Terrorist and Disruptive Activities (Prevention) Act, 1987, professed to achieve. Whilst reconciling the two, the Apex Court issued directions for release of undertrial prisoners, who had suffered long incarceration, depending upon the gravity of the charges. The observations in paras 9 to 11 and 13 to 14 are material
N. S. Chitnis 12/26 and hence reproduced hereinunder:-
9. The petition thus poses the problem of reconciling conflicting claims of individual liberty versus the right of the community and the nation to safety and protection from terrorism and disruptive activities. While it is essential that innocent people should be protected from terrorists and disruptionists, it is equally necessary that terrorists and disruptionists are speedily tried and punished. In fact the protection to innocent civilians is dependent on such speedy trial and punishment. The conflict is generated on account of the gross delay in the trial of such persons. This delay may contribute to absence of proper evidence at the trial so that the really guilty may have to be ultimately acquitted. It also causes irreparable damage to innocent persons who may have been wrongly accused of the crime and are ultimately acquitted, but who remain in jail for a long period pending trial because of the stringent provisions regarding bail under TADA. They suffer severe hardship and their families may be ruined.
10. Bearing in mind the nature of the crime and the need to protect the society and the nation, TADA has prescribed in Section 20(8) stringent provisions for granting bail. Such stringent provisions can be justified looking to the nature of the crime, as was held in Kartar Singh case, on the presumption that the trial of the accused will take place without undue delay. No one can justify gross delay in disposal of cases when undertrials perforce remain in jail, giving rise to possible situations that may justify invocation of Article 21.
N. S. Chitnis 13/26
11. These competing claims can be reconciled by taking a pragmatic approach.
13. For the purpose of grant of bail to TADA detenus, we divide the undertrials into three (sic four) classes, namely, (a) hardcore undertrials whose release would prejudice the prosecution case and whose liberty may prove to be a menace to society in general and to the complainant and prosecution witnesses in particular; (b) other undertrials whose overt acts or involvement directly attract Sections 3 and/or 4 of the TADA Act; (c) undertrials who are roped in, not because of any activity directly attracting Sections 3 and 4, but by virtue of Sections 120-B or 147, IPC, and; (d) those undertrials who were found possessing incriminating articles in notified areas and are booked under Section 5 of TADA.
14. Ordinarily, it is true that the provisions of Sections 20(8) and 20(9) of TADA would apply to all the aforesaid classes. But while adopting a pragmatic and just approach, no one can dispute the fact that all of them cannot be dealt with by the same yardstick. Different approaches would be justified on the basis of the gravity or the charges. Adopting this approach we are of the opinion that undertrials falling within group (a) cannot receive liberal treatment. Cases of undertrials falling in group (b) would have to be differently dealt with, in that, if they have been in prison for five years or more and their trial is not likely to be completed within the next six months, they can be released on bail unless the court comes to the conclusion that their antecedents are such that releasing them may
N. S. Chitnis 14/26 be harmful to the lives of the complainant, the family members of the complainant, or witnesses. Cases of undertrials falling in groups (c) and (d) can be dealt with leniently and they can be released if they have been in jail for three years and two years respectively. Those falling in group (b), when released on bail, may be released on bail of not less than Rs.50,000 with one surety for like amount and those falling in groups (c) and (d) may be released on bail on their executing a bond for Rs.30,000 with one surety for like amount, subject to the following terms: (1) The accused shall report to the police station concerned once a week; (2) The accused shall remain within the area of jurisdiction of the Designated Court pending trial and shall not leave the area without the permission of the Designated Court; (3) The accused shall deposit his passport, if any, with the Designated Court. If he does not hold a passport, he shall file an affidavit to that effect before the Designated Court. The Designated Court may ascertain the correct position from the passport authorities, if it deems it necessary; (4) The Designated Court will be at liberty to cancel the bail if any of these conditions is violated or a case for cancellation of bail is otherwise made out; (5) Before granting bail, a notice shall be given to the public prosecutor and an opportunity shall be given to him to oppose the application for such release. The Designated Court may refuse bail in very special circumstances for reasons to be recorded in writing.”
N. S. Chitnis 15/26
19. Having regard to the gravity of the offence, the role of the appellant, the evidence qua him and the observations made by us as stated aforesaid, we also decline to consider the appellant’s plea for bail on the ground of delay in commencement of the trial. However, at the same time, we cannot be oblivious to the right of the appellant to an expeditious trial guaranteed to him under Article 21 of the Constitution of the India. Charges in this case were framed on 25th May 2022. Accordingly, we expedite the trial of the appellant and direct the learned Special Judge, to conclude the trial, as expeditiously as possible, and in any event by December
2023. All parties i.e. prosecution and defence to cooperate with the learned Judge in the expeditious disposal of the trial.”
15. When the appellant’s first appeal being Criminal Appeal No.299 of 2022 seeking his enlargement on bail, was dismissed, the appellant was in custody for about 9 years and 9 months. Today, the appellant is in custody for more than 11 ½ years with no prospect of the trial concluding within a reasonable period.
16. As noted aforesaid, although the incident took place in December 2012, charge was framed in the said case only in 2022 and it is only in February 2024 that the first witness stepped into the
N. S. Chitnis 16/26 witness-box. According to the prosecution, although there are 300 witnesses cited by them in the charge-sheet, the prosecution intends to examine only 107 witnesses. As noted aforesaid, till date only about 8 witnesses have been examined and as such the possibility of the trial concluding in the immediate near future appears to be bleak.
17. The Apex Court in the case of Javed Gulam Nabi Shaikh v/s State of Maharashtra and Another[2] whilst dealing with the case under the UAPA has in para 19 observed, as under:
18. A three-Judge Bench of this Court in Union of India v/s K.A. Najeeb[3] had an occasion to consider the long incarceration and 2 Cri.Appeal No. 2787/2024 dated 3rd July, 2024
N. S. Chitnis 17/26 at the same time the effect of Section 43(D)(5) of the UAPA and observed as under:
19. Similarly, in Satender Kumar Antil v/s Central Bureau of Investigation and Another[4], the Apex Court, in para 86 has observed as under:-
20. As noted above, in the incident that took place in 2012, only one person was injuried and no death was reported. It appears that initially charges were framed against the appellant on 4th April 2022, for the offences punishable under Sections 307 r/w 120B of the IPC, Sections 435 r/w 120B of the IPC; Sections 16(1)(b), 18, 20, 38 and 39 of the UAPA and, under Sections 3(1)(ii), 3(2) and 3(4) of the MCOC Act and subsequently on an application being made by the Counsel for the appellant the charge was modified. A perusal of the roznama shows that the prosecutor had conceded that Sections 307 r/w 120B, 435 r/w 120B of the IPC and Section 16(1)(b) of the
N. S. Chitnis 19/26
UAPA, did not apply insofar as the appellant is concerned and as such the charge came to be amended. The said charge was amended vide order dated 20th April 2022 by the learned Special Judge.
21. We may note that when the matter was heard by us on an earlier occassion, the aforesaid argument was advanced by the learned Counsel for the appellant, that there was no charge vis-a-vis the appellant under Section 307 of the IPC, the prosecutor on realising the same, filed an application before the learned Special Judge on 1st August 2024. The prosecutor in its application had stated as under:- “Application for correction/ modification/ Alternation in charge at "Seventhly" May it please your honour.
1. That The Ld. Session court was pleased to frame charge against all accused including wanted accused in the case vide Exh 344, Dated 20/04/2022.
2. After charges were framed, trial proceeded with examination of 09 prosecution witnesses. After reading charge it is now noticed that charge framed at "seventhly" needs further considerations in view of charge of conspiracy and objective of crime to be achieved pursuant to
N. S. Chitnis 20/26 conspiracy.
3. Prosecution proposes correction or modification or alteration or addition in the charge as follows: a) In charge firstly, thirdly, fourthly, fifthly, sixthly, tenthly & eleventhly, instead of "you accused nos. 1 to 10", as "you accused nos. 1 to 9". b) In charge seventhly, add as "you accused nos. 1 to 9". In view of above it is prayed that: a) By passing suitable orders proposed charge against all accused be kindly be framed. b) Any other just and further reliefs. And for this act of kindness the Prosecution shall pray forever.”
22. Pursuant thereto, the trial Court on 1st August 2024 passed the following order:- “..........Prosecution filed application for correction/ modification/ alteration in charge at Seventhly, TOR and marked as Exh.535. O - Otherside to say. Order- Modification sought are in respect of technical and clerical mistake. The corrections do not at all cause prejudice to the defense in any manner. Hence, application Exhibit-535 is allowed........”
N. S. Chitnis 21/26
23. It appears that thereafter an application was filed by the learned counsel for the appellant, for recall of the order dated 1st August 2024 passed on Exhibit-535 which was obtained by misrepresenting the Court. Pursuant thereto, the trial Court vide order dated 6th August 2024, passed the following order:- “........... Adv. for accused No.5, filed application for recalling of order dated 01.08.2024 on Exhibit-535 obtained by misrepresenting to this Hon'ble Court by Ld. SPP, TOR and marked as Exh.540. O - SPP to say. The case is already adjourned to 12/08/2024 for Evidence (part heard).”
24. Thus, the matter is presently pending for consideration as to whether the charge under Section 307 of the IPC, is to be applied to the appellant or not. It may be noted here, that there is no charge under Section 302 of the IPC in the said case against any of the accused.
25. It is not in dispute, that some of the offences with which the appellant is charged, the minimum sentence is 5 years, with the maximum sentence of imprisonment for life. As noted above, the
N. S. Chitnis 22/26 appellant has already undergone 11 ½ years of pre-trial detention. As noted above the prosecution has examined only 8 witnesses till date and about 100 odd witnesses are yet to be examined. It is thus evident that the possibility of the trial concluding in the immediate near future appears to be bleak. The right to a speedy trial under Article 21 of the Constitution of India, is a fundamental right.
26. Keeping in mind the aforesaid, the charges with which the appellant is charged and the judgments of the Apex Court, we pass the following order:- ORDER
(i) The appeal is allowed;
(ii) The impugned order dated 5th February 2024, passed by the learned Special Judge, City Civil and Sessions Court, Greater Bombay in Bail Application (Exhibit–445) in Special Case No.7 of 2013, stands quashed and set-aside;
N. S. Chitnis 23/26
(iii) The appellant be enlarged on bail, on executing PR Bond in the sum of Rs.1,00,000/- with one or more solvent sureties in the like amount, to the satisfaction of the learned Judge, NIA Court;
(iv) The appellant shall report to the office of the ATS,
(v) The appellant shall not, either himself or through any other person, tamper with the prosecution evidence and give threats or inducement to any of the prosecution witnesses;
(vi) The appellant shall not leave the jurisdiction of NIA
N. S. Chitnis 24/26
(vii) The appellant shall not leave India, without the prior permission of the NIA Court;
(viii) The appellant shall surrender his passport, if any, before the NIA Court, before his release.
(ix) The appellant shall inform his latest place of residence and mobile contact number immediately after being released and/or change of residence or mobile details, if any, from time to time to the Court seized of the matter and to the Investigating Officer of the concerned Police Station;
(x) The appellant to cooperate with the conduct of the trial and attend the NIA Court on all dates, unless exempted;
(xi) The appellant shall file an undertaking with regard to clauses (iv) to (x) before the NIA Court, within two weeks of his release;
N. S. Chitnis 25/26
(xii) If there is breach of any of the aforesaid conditions, the prosecution shall be at liberty to seek cancellation of the appellant's bail.
27. Appeal is allowed in the aforesaid terms and is accordingly disposed of.
28. It is made clear that the observations made herein are prima facie, and the learned Special Judge shall decide the case on its own merits, in accordance with law, uninfluenced by the observations made in this judgment. All concerned to act on the authenticated copy of this judgment.
SHARMILA U. DESHMUKH, J. REVATI MOHITE DERE, J.
N. S. Chitnis 26/26