[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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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.

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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  

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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  

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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  

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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  

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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.”

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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