C.B.I vs Mustafa Ahmed Dossa

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

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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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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-

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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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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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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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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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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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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-

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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-

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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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922/2009 2nd December 2008 12

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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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 It is held 14

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-

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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 subsequently vide 16

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 learned counsel has 17

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-

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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-

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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

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