C.B.I. Vs MUSTAFA AHMED DOSSA
Bench: HARJIT SINGH BEDI,CHANDRAMAULI KR. PRASAD, , ,
Case number: Crl.A. No.-000920-000922 / 2009
Diary number: 11650 / 2009
Advocates: ARVIND KUMAR SHARMA Vs
SUSHIL BALWADA
[REPORTABLE]
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOs. 920-922 OF 2009
CBI ……APPELLANT
VS.
MUSTAFA AHMAD DOSSA ….RESPONDENT
J U D G M E N T
HARJIT SINGH BEDI, J.
1. These appeals, at the instance of the Central Bureau of
Investigation, are directed against the order of the Designated
Court under the Terrorist and Disruptive Activities
(Prevention) Act, 1987 (herein called TADA) dated 26th
February 2009 allowing the application of the respondent
herein and directing that the evidence collected before 31st
December 1997 in the Bombay Blast Case (BBC) No.1 of 1993
could not be used against him unless the witnesses already
examined were allowed to be cross-examined by the
respondent. The facts are as under:
2. On the 12th March, 1993, a series of bomb blasts took
place in Bombay and its surrounding areas resulting in the
death of 257
persons, injuries to 713 and damage of Rs.27 crores to
property. The State Police registered 27 criminal cases on
account of the blast. A single charge-sheet dated 4th November
1993 was filed in the Designated Court against 189 persons of
which 44 were shown to be absconding. 15 days later, on the
19th November 1993 the investigation was transferred to the
CBI which registered its own case as Crime No. RC1
(S)/93/STF/BB. 19 supplementary reports were thereafter
filed before the Designated Court by the CBI under Section
173(8) of the Cr.P.C. The trial commenced on the 14th July
1994 and the Designated Court, Mumbai after hearing
arguments from both sides framed the charges on the 10th
April, 1995 including a common charge of criminal conspiracy
against all the accused present before it or absconding as well
as those who were still unidentified. An application dated 12th
April 1994 was thereafter moved by the prosecution seeking
orders from the Designated Court for recording the evidence of
the prosecution witnesses in the absence of those who were
not before the Court. The application was, however, kept
Crl. Appeal Nos.920- 922/2009
2
pending, as the CBI
was making efforts to trace out the absconding accused. The
CBI also filed a fresh list of those accused who were
absconding and others whose name had surfaced later in the
investigation and they too were included in the list of
absconding persons. As the case had reached the trial stage
and the prosecution witnesses were to be examined from the
20th June 1995 onwards, the Designated Court passed an
order on the 19th June 1995 observing that as “there was no
immediate prospect of the arrest of the absconders and as
they were wanted for offences committed by them pursuant to
a conspiracy it was appropriate that the evidence which was
led by the prosecution may be recorded on the arrest of the
accused persons whose names figure in list Annexure-A (to
the order) be given in evidence against them on the enquiry on
the into or trial for the offences with which they will be
charged as, if the deponent was dead or incapable of giving
evidence or could not be found or his presence could not be
procured without expense or inconvenience which in the
circumstances of the case would be unreasonable and that if
Crl. Appeal Nos.920- 922/2009
3
during the trial any
of the accused wanted in this case was arrested the
prosecution would be at liberty to move this Court to join him
in the trial.” On the 20th August 1995 the confessional
statement of accused Salem Mira Moiuddin Sheikh was
recorded which disclosed the involvement of Mustafa Ahmed
Dossa, the respondent herein, and five others. It also came
out that the respondent had attended several meetings in
Dubai in furtherance of the conspiracy and contraband
material had also been sent to India by him. On the 3rd June
1996, an application was moved by the CBI for the issuance of
non-bailable warrants qua the respondent Mustafa Ahmed
Dossa and 5 others and it was prayed that orders for the
publication of a written proclamation under Section 8(3)(a) of
the TADA requiring the respondent and others to appear
before the TADA Court on a specified date and further that
non-bailable warrants and a Red Corner notice, be issued.
This application was dismissed by the Designated Court on
the 1st August 1996. The order of the Designated Court was,
however, reversed by this Court on the 7th May 1997 with a
Crl. Appeal Nos.920- 922/2009
4
direction that the
application of the CBI should be taken up for reconsideration
by the Designated Court. This application was decided on the
29th August 1997 and the prayers made by the CBI were
allowed. A proclamation was thereafter issued on the 16th
September 1997 and the respondent and the others were
called upon to appear in the Designated Court within 30 days
thereof. As the respondent did not appear in response to the
proclamation, he was declared a proclaimed offender on the
31st December 1997 in BBC No.1 of 1993. The respondent
was, however, arrested at the Indira Gandhi International
Airport, New Delhi on the 20th March 2003. It transpired from
the documents recovered from him that he had acquired
Pakistani nationality under the assumed named of Mustafa
Umar Merchant and had also obtained a National Residential
Permit for the UAE on the basis of his Pakistani Passport. A
supplementary charge-sheet was accordingly filed before the
Designated Court in Case No. BBC No.1 of 1993 against the
respondent on the 3rd May 2003. It appears the prior to the
arrest of the respondent, another absconder named Eizaz
Crl. Appeal Nos.920- 922/2009
5
Pathan had been
deported from the UAE to India and arrested in BBC No.1 of
1993. Eizaz Pathan made an application to the Designated
Court making two prayers (1) that the Court allow him to join
the trial and (2) requesting that all the 684 prosecution
witnesses who had been also examined thus far should be
recalled for cross-examination. This application was allowed
qua the first prayer but rejected qua the second one on the
ground that a similar application had already been rejected
earlier on the 28th May 2003. After a supplementary charge-
sheet had been filed against the respondent, the prosecution
moved an application that he be also joined in the trial
proceedings in BBC No.1 of 1993. The respondent opposed
the application and prayed that his trial should be separated
whereas the co- accused also opposed the application saying
that if the respondent was joined in the trial at that stage it
would cause serious prejudice to them and further delay the
trial which had run for almost 11 years. The application was,
however, dismissed by the Designated Judge Shri P.D.Kode
vide order dated 4th July 2003 holding that the evidence
Crl. Appeal Nos.920- 922/2009
6
recorded after the
31st December 1997 with respect to the respondent could be
used by the prosecution but in so far as the evidence recorded
prior to that date was concerned the respondent was required
to be given an opportunity to meet the said evidence. The
order dated 4th July 2003 was challenged by the respondent by
way of SLP(Crl) No. 3806 of 2003. This Special Leave Petition
was disposed of on the 21st November 2003 with the following
order:
“Heard the learned counsel for the parties. The petitioner is challenging an order by which separate trial has been ordered as regards the petitioner. The petitioner pays that trial should have been along with other accused learned ASG submitted that case of the other accused have already been over and judgment is reserved. In view of the above circumstances, the prayer made by the petitioner has become infructuous. The petitioner prays that his trial may be initiated at the earliest and be completed urgently. The Special Judge shall conduct the trial expeditiously. The SLP is disposed of.”
3. The respondent thereupon filed application No. 57 of
2004 on the 10th March 2004 before the Designated Court
Crl. Appeal Nos.920- 922/2009
7
highlighting that
the evidence collected during the main trial of the accused in
BBC No.1 of 1993 could not be used against him and prayed
that the Court be called upon to opine on this aspect and to
give a reasoned order. This application was dismissed on the
11th July 2005 by observing that the matter had already been
concluded by the order dated 4th July 2003. Special Leave
Petition (Crl.) No. 387 of 2006 was filed by the respondent
challenging the order of 11th July 2005, inter-alia, praying that
this Court opine that the evidence recorded and documents
and articles exhibited in BBC 1 of 1993 after the issuance of
proclamation against the respondent could not be taken on
record in his trial as despite the fact that he had been declared
a proclaimed offender on the 31st December 1997, no request
application or proceedings under section 299 of Code of
Criminal Procedure Code or under Section 14 (5) of the TADA
had been taken against him. The Special Leave Petition was,
however, disposed of as withdrawn on the request of the
counsel for the petitioner (respondent herein) on the 16th
November 2006. It is the case of the appellant CBI that the
Crl. Appeal Nos.920- 922/2009
8
orders passed by
the Designated Court on the 4th July 2003 and 11th July 2005
with regard to the admissibility of the evidence recorded in
BBC No.1 of 1993 had attained finality on account of the
subsequent orders passed by this Court and noted above. The
respondent, however, still undeterred, filed another
application on the 8th October 2008 before the Designated
Court again praying for an order that the prosecution could
not rely on the evidence collected in BBC No.1 of 1993. It was
pleaded, inter-alia, that the order of the Designated Court
dated 4th July 2003 made by Shri P.D.Kode was an
interlocutory order and subject to review or re-appraisal under
Section 362 of the Code of Criminal Procedure and there was
no bar on a successor Judge to re-examine the issue more
particularly as the circumstances had changed as the trial in
BBC No.1 of 1993 had since been completed and that the
conditions for the applicability of section 299 which permitted
the recording of evidence in the absence of the accused could
not be applied to the facts of the case. A reply was filed by the
prosecution bringing out the facts of the case, as already
Crl. Appeal Nos.920- 922/2009
9
revealed above, and
further highlighting that orders on similar prayers of the
applicant had already been made by Shri Kode on the 21st
February 2004 and 11th July 2005 and the question of
admissibility of the evidence earlier collected had already been
settled and could not be re-examined. In para 8 the
Designated Judge noted that the point in dispute was thus:
“In the light of the rival submissions the point to be decided is whether prosecution can rely on and use the evidence recorded in main trial BBC 1/1993 in absence of even before arrest of this accused Mustafa Dosa.”
4. The Designated Court thereafter re-examined the matter
in the light of the provisions of Sections 273 and 299 of the
Cr.P.C. and Section 14 (5) of the TADA and observed that as
the conditions envisaged under these provisions were not
satisfied, the evidence recorded in the absence of the accused
could not be admissible without his right of cross-examination
being respected. The Court noted that the order of Shri Kode
dated 4th July 2003 had been challenged in the Supreme Court
but observed that the application had not been decided on
Crl. Appeal Nos.920- 922/2009
10
merits but had been
disposed of as infructuous in the light of the submission made
by the State counsel that the main trial was fixed for
judgment. The Designated Court also observed that the order
of 4th July 2003 was an interlocutory one and could be
reviewed in the interests of a fair trial, and that the evidence
collected in the absence of the accused-respondent was not
admissible unless he had been given a right of cross-
examination. In support of its decision, the Designated Court
also cited the precedent of a co-accused of the respondent,
Abu Salem Ansari, Riyaz Ahmed Siddique and Abdul Karim
Shaikh who had been arrested on the 2nd August 2005 and
charge-sheeted in the year 2006 pertaining to the same
incident although given a separate case number of BBC1- of
1993. In these proceedings, the Designated Judge by order
dated 2nd December 2008 directed that the prosecution was
not entitled to rely on or to use any evidence in BBC 1 of 1993
qua Abu Salem Ansari and the others and it was for the
prosecution to establish the existence of circumstances in
terms of Section 299 of the Code. It appears that the order of
Crl. Appeal Nos.920- 922/2009
11
2nd December 2008
was challenged by the CBI before this Court in SLP(Crl.)
No.569 of 2009 and the matter was disposed of on the first
hearing in the following terms on the 6th February 2009:
“In the present case, sub-section (2) of the Section 299 Cr.P.C. has no application. Therefore, we make it clear that the prosecution may rely on the earlier evidence recorded in the earlier trial against the first respondent subject to establishment of existence of any of the conditions precedent as described in first part of Section 299 Cr.P.C. The appeal is disposed of accordingly.”
5. The Designated Court accordingly sought support for its
opinion from the order dated 6th February 2009 in the case of
Abu Salem and observed that:
“In both the trials i.e. BBC 1-A/93 of this accused (i.e. the present trial) and BBC 1- B/93 against accused Abu Saleem and others some of the evidence is recorded in common. Some of the witnesses are examined afresh by the prosecution. And when in the case of accused Abu Salem Hon’ble Apex Court has held that the earlier evidence would not be available against Abu Saleem unless witnesses are examined afresh the same being the statement of law is also binding. In this case which is arising out of the same crime number and is simply separated for the sake of convenience as the accused is arrested later on
Crl. Appeal Nos.920- 922/2009
12
when the earlier trial was already over and case was reserved for judgment. No any contrary matrix can be applied to this case otherwise it will amount to discrimination before law as court will have to give distinct treatment and legal protection to two distinct sets of accused involved in the same crime. So far the evidence regarding the confessional statement is concerned I am compelled to reiterate that law does not permit the acceptance against this accused as the matter is not charged or tried together in the same case with this accused. In the circumstances prosecution cannot rely on or even prove the confessional statement of any of the accused whose trial has come to end by declaration of judgment in the year 2007 by examining any Police Officer who recorded the same. It will be inadmissible evidence and no purpose of law will be served by allowing an inadmissible evidence on record.”
6. The Court also held that in view of the order dated 6th of
February 2009 the circumstances had changed and as such it
was appropriate that a similar order be made and ultimately
issued the following directions on the 26th February 2009:
“It is held that prosecution is not entitled to rely on any piece of evidence recorded in earlier trial BBC 1/93 AS IT IS without examining those witnesses afresh in this trial.
Crl. Appeal Nos.920- 922/2009
13
It is held that prosecution may rely on the evidence recorded in earlier trial BBC 1/93 against accused Mustafa Dosa subject to establishment of existence of any of the condition precedent as described in Second part of Sec.299 of Cr.P.C. subject to further condition that such evidence u/sec.299 of Cr.P.C. must relate to the later evidence recorded after 31/12/1997 i.e. the date accused Mustafa Dosa was declared as proclaimed offender.
It is further held that the prosecution is not entitled to rely on any evidence tending to prove confessional statements of any of the accused who is already charged and tried in main trial BBC 1/93 which is terminated by judgment declared 12/9/2006 to 31/7/2007.
The Prosecution is at liberty to proceed to rely on any piece of evidence recorded in the aforesaid earlier trial strictly within the above parameters and subject to the conditions mentioned herein-in-above.”
This order has challenged before us by the CBI.
7. Mr. P.P.Malhotra, the learned Additional Solicitor
General, has first and foremost argued that the observations of
the Designated Court in the impugned order that the order of
Designated Judge Shri Kode dated 11th July 2005 was an
interlocutory one which could be tinkered with at any time
Crl. Appeal Nos.920- 922/2009
14
under Section 362
of the Cr.P.C. were wrong as the said order had settled the
rights in a very specific manner and more particularly Section
362 could operate only to correct clerical or arithmetical
errors. It has been pointed out that review was a creature of a
statute and there was no inherent power of review vested in a
Designated Court and that even the criminal procedure did
not envisage review of an order except in the limited situations
mentioned in Section 362. It has also been submitted that in
any case the power under Section 299 of the Code of Criminal
Procedure could be exercised in the case of respondent herein
as he had been an absconder and that the CBI while
submitting its challan had done so not only with respect to
those accused who were in the custody but even to those who
were absconding or who were not yet identified and could be
identified at a later stage. He has further submitted that the
changed circumstances on which emphasis had been laid by
the Designated Court in the impugned order had further
changed as the order of 6th February 2009 in SLP (Crl.) No.
569/2009 had further been modified by this Court
Crl. Appeal Nos.920- 922/2009
15
subsequently vide
order dated 24th August 2009 and that in this view of the
matter the trial in the case of respondent herein was also
required to proceed in accordance with the directions issued
by this Court on 24th August 2009 in the case of Abu Salem.
8. The arguments raised by Mr. Malhotra, ASG have been
countered by Mr. R.S.Sodhi, the learned senior counsel for the
respondent. It has been pointed out that the order made by
Shri Kode was nonest in the eyes of law and, therefore,
interference by the successor Designated Judge ignoring them
was fully justified. It has further been pleaded that the
conditions for the applicability of Section 299 of the Cr.P.C.
were not made out and the respondent was not an accused
person or a proclaimed offender till a formal declaration to
that effect and as such the evidence produced by the
prosecution prior to the 31st August 1997 could not be utilized
against him. It has been highlighted that Section 273 of the
Cr.P.C. clearly envisaged the recording of evidence in the
presence of the accused and if such a direction was violated, it
would amount to a complete miscarriage of justice. The
Crl. Appeal Nos.920- 922/2009
16
learned counsel has
relied upon certain documents on its plea. 9. As would be
evident, several legal issues have been raised in his matter.
We, however, see that the Bombay blast took place in the year
1993 and the trial with respect to some of the accused,
including the respondent herein, has yet not been completed
though a series of applications have been filed before the
Designated Judges to be followed by appeals in this Court at
the instance of the aggrieved parties. We are, therefore, of the
opinion that the legal issues need not be gone into at this
stage for the simple reason that the last order in this matter is
the order dated 24th August 2009 made by this Court in SLP
(Crl) No. 3586/2009 in the case of Abu Salem. It appears that
after the order dated 2nd December 2008 in the case of Abu
Salem, the matter was carried to this Court in SLP (Crl.) No.
569/2009. This SLP was disposed of on 6th February 2009 by
the order already quoted above. An application was thereafter
filed by the prosecution on 23rd February 2009 that the
depositions of the witnesses recorded in the absence of the
accused in BBC No.1/1993 may be taken on record in the
Crl. Appeal Nos.920- 922/2009
17
case of Abu Salem
and others without recalling the witnesses in view of the
provisions of Section 299 of the Cr.P.C. This application was,
however, dismissed vide order dated 6th February 2009 in the
light of the order dated 2nd December 2008 in the case of Abu
Salem. It appears that the order dated 16th March 2009 in the
case of Abu Salem was carried to the Supreme Court by way of
SLP (Crl.) No. 3586/2009 and after hearing both parties the
SLP was disposed of on the 24th August 2009 with the
following directions:
“Respondent accused will file a statement within one week before the Special Judge as to who are all the witnesses whom they propose to cross-examine in BBC-1 of 1993. Thereafter the prosecution will take further steps to produce those witnesses for cross- examination. The Trial Judge will expedite the matter.
Earlier interim order is vacated.
The Special Leave Petition is disposed of accordingly.”
Crl. Appeal Nos.920- 922/2009
18
10. It is the case
of the CBI that it would be satisfied if a similar order is passed
in the present case. We find merit in the submission for the
simple reason that the trial of the respondent herein and Abu
Salem, which arises out of the same incident, cannot proceed
under different procedures. Even otherwise the observations
of the Designated Court in the impugned judgment dated 16th
March 2009 that as the changed circumstances in the order
passed by the Supreme Court in the case of Abu Salem were
pre-dominant and would hold the field, on this very premise
the order of the Supreme Court dated 24th August 2009 would
now be the final word in the matter. We, therefore, dispose of
these Appeals and make direction in terms of the order dated
24th August 2009. No other order is necessary.
…………………………….J. (HARJIT SINGH BEDI)
………………………… ….J.
(CHANDRAMAULI KR. PRASAD)
FEBRUARY 22, 2011
Crl. Appeal Nos.920- 922/2009
19
NEW DELHI.
Crl. Appeal Nos.920- 922/2009
20