Rajendra Chaudhary S/O Vikram Singh Chaudhary @ Dashrath And Anr vs Union Of India And Ors
- Court
- Bombay High Court
2026:BHC-AS:19094-DB
Cri. Appeal No.107 & 2772 of 2026.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.107 OF 2026
Digitally
signed by
BALAJI
GOVINDRAO
PANCHAL
Date:
2026.04.22
23:12:35
+0530
BALAJI
GOVINDRAO
PANCHAL
1. Rajendra Chaudhary S/o
Vikram Singh Chaudhary @
Dashrath @ Samander @ Badal Yadav
@ Laxman Das Maharaj,
Age: 43 years, Occ: Service,
R/o: Dhakad Seri, Depalpur,
Indore, Madhya Pradesh-453 115.
2. Dhan Singh S/o Shiv Singh @ Ram
Lakhan Das Maharaj @ Subhash @ Lakhan,
Age: 45 years, Occ: Service,
R/o: Hanuman Chowk, Hatod, Indore,
Madhya Pradesh-453 112. .. Appellants
(Accused Nos.15 & 16)
Vs.
1. Union of India
Represented by its Secretary,
Ministry of Home Affairs, North Block,
New Delhi-110 001.
2. State of Maharashtra
Represented by Home Secretary,
Ministry of Home Affairs.
3. Director General of Police
Special Task Force, Police Head
Quarters, Shahid Bhagat Singh Road,
Mumbai-400 001.
4. The Additional Director General
Anti-Terrorism Squad,
Through Chief Public Prosecutor,
High Court (A.S.), Mumbai.
5. The Director General
Central Bureau of Investigation,
th
Plot No.5B, 10 Floor, B-Wing CGO
Complex, Jawaharlal Nehru Stadium
Marg, New Delhi-110 003.
6. Additional Superintendent of Police,
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CBI STF.
Having its office at
th
13 Floor, Plot No.C-35A,
Near MTNL Exchange, G Block,
BKC, Bandra (East), Mumbai-400 098.
7. The Director General,
National Investigation Agency (NIA),
CGO Complex, Lodhi Road,
New Delhi-110 003.
8. Superintendent of Police,
National Investigating Agency,
Having its office at
th
7 Floor, MTNL Building,
Peddar Road, Kambala Hills,
Mumbai-400 026. .. Respondents
WITH
CRIMINAL APPEAL (STAMP) NO.2772 OF 2026
1. Manohar S/o Ram Singh Narwaria @
Digaria @ Sumer Thakur,
Age: 43 years, Occ: Service,
R/o: C/o Rama Singh,
Gurda Khedi, Indore,
Madhya Pradesh-453 111.
2. Lokesh Sharma S/o Gopal Krishan
Sharma @ Kalu Pandit @ Ajay Tiwari @ Tiwari,
Age: 49 years, Occ: Service,
R/o: 180, Sanghi Street,
Dr. Ambedkar Nagar, Mahu,
Indore, Madhya Pradesh-453 441. .. Appellants
(Accused Nos.14 & 17)
Vs.
1. Union of India
Represented by its Secretary,
Ministry of Home Affairs, North Block,
New Delhi-110 001.
2. State of Maharashtra
Represented by Home Secretary,
Ministry of Home Affairs.
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3. Director General of Police
Special Task Force, Police Head
Quarters, Shahid Bhagat Singh Road,
Mumbai-400 001.
4. The Additional Director General
Anti-Terrorism Squad
Through Chief Public Prosecutor
High Court (A.S.), Mumbai.
5. The Director General
Central Bureau of Investigation,
th
Plot No.5B, 10 Floor, B-Wing CGO
Complex, Jawaharlal Nehru Stadium
Marg, New Delhi-110 003.
6. Additional Superintendent of Police,
CBI STF.
Having its office at
th
13 Floor, Plot No.C-35A,
Near MTNL Exchange, G Block,
BKC, Bandra (East), Mumbai-400 098.
7. The Director General,
National Investigation Agency (NIA),
CGO Complex, Lodhi Road,
New Delhi-110 003.
8. Superintendent of Police,
National Investigating Agency,
Having its office at
th
7 Floor, MTNL Building,
Peddar Road, Kambala Hills,
Mumbai-400 026. .. Respondents
...
Mr. Girish Kulkarni, Senior Advocate a/w Mr. Abhishek
Kunchikor, Mr. Himanshu Indise & Mr. Sujay Shingade,
Advocates for the Appellants in Appeal (Stamp) No.2772/2026.
Mr. Kaushik Mhatre a/w Mr. Sanket Dhawan, Mr. Prakash
Salsingikar, Mr. Vighneswar Subramanian & Mr. Himanshu
Mane, Advocates for the Appellants in Appeal No.107 of 2026.
Ms. Manisha Jagtap, Advocate for the Respondent-UOI in both
the Appeals.
Mr. Anil C. Singh, Additional Solicitor General a/w Mr. Chintan
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Shah, Special PP, Mr. Krishnakant Deshmukh & Mr. Adarsh
Vyas, Advocates f or the Respondent-NIA in both the Appeals.
Mr. Kuldeep Patil a/w Mr. Anay Joshi, Mr. Digvijay Kachare,
Ms. Saili Dhuru, Mr. Sumitkumar Nimbalkar & Ms. Sanika
Joshi, Advocates for the Respondent-CBI in both the Appeals.
Mrs. M. M. Deshmukh I/C PP a/w Mr. K. V. Saste, Addl. PP for
the Respondent-State.
Mr. Sandip Salave, PI, NIA, & Mr. Akhilesh Singh, PI, NIA,
Mumbai present.
...
CORAM : SHREE CHANDRASHEKHAR, CJ &
SHYAM C. CHANDAK, J.
th
RESERVED ON : 15 APRIL 2026
nd
PRONOUNCED ON : 22 APRIL 2026
JUDGMENT
Per, Shree Chandrashekhar, CJ:-
These criminal appeals filed under section 21 of the National
Investigation Agency Act, 2008 (in short, NIA Act) seek to
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challenge the order dated 30 September 2025 framing charges
against the appellants in Special Case No.8 of 2013. By the said
order, the Special Judge (under NIA Act), City Sessions Court,
Greater Mumbai framed charges under nineteen heads against
the appellants, namely, (i) Manohar Ramsingh Narwaria @ Digaria
@ Sumer Thakur (ii) Rajendra Vikramsingh Chaudhari @
Dashrath @ Samander @ Badal Yadav @ Laxman Das (iii) Dhan
Singh Shiv Singh @ Ram Lakhan Das Maharaj @ Subhash @
Lakhan, and (iv) Lokesh Sharma @ Kalu Pandit @ Ajay Tiwari.
2. The gist of the allegations against the appellants is that they
along with the accused persons, namely, Dr. Farogh Iqbal Ahmed
Magdumi, Shaikh Mohd. Ali Alam Anamat Ali Shaikh, Aasif Khan
Bashir Khan @ Junaid @ Abdulla and Mohd. Jahid Abdul Majjid
Ansari and a few other unknown persons entered into a criminal
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conspiracy between January 2006 to September 2006 to commit
terrorist acts at various places more specifically at Malegaon in
the district of Nashik by causing bomb blasts. It is alleged that
the appellants and the other accused persons triggered a series of
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bomb blasts on 8 September 2006 which was a Friday between
1:45 pm to 2:00 pm at Hamidiya Masjid, Bada Kabrastan and
Mushawarat Chowk at Malegaon on the occasion of Shab-e-Barat
and caused death of 31 persons and grievous hurt to 312 persons
and severe loss, damage and destruction of the properties. The
appellants have been asked to face the trial mainly for the
offences punishable under sections 302, 307, 326, 325, 324, 327,
436, 295 read with sections 34 and 120-B and under section
153-A of the Indian Penal Code; sections 6A and 9B of the
Explosive Act, 1884 read with sections 3, 4, 5 and 6 of the
Explosive Substances Act, 1908 and; section 15 read with
sections 16 and 18 of the Unlawful Activities (Prevention) Act,
1967 in connection to the crime registered as First Information
Report No.RC-03/2011/NIA-DLI which is commonly known as
Malegaon Blast-2006.
3. The primary submission made on behalf of the appellants
against the order framing charge is that there is no such
evidence collected by the NIA so as to ask them to face the trial in
Special Case MCOC No.8 of 2013 corresponding to RC-
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03/2011/NIA-DLI dated 6 April 2011 vide Exhibit No.766.
4. Section 21 of the National Investigation Agency Act, 2008
provides that an appeal shall lie from any judgment, sentence or
order, except an interlocutory order of a Special Court to the
High Court both on facts and on law. Section 21 apparently
confers wide powers on the High Court to examine the propriety
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and legality of any judgment, sentence or order passed by a
Special Court. Unlike other statutory provisions, section 21
makes a statutory requirement to be followed by the High Court
in an appeal under section 21 that the appeal so laid by the
aggrieved party must be examined on facts collected by the NIA
having regard to the applicable law on the subject. In the
matters of discharge from the criminal liability, the High Court
shall be entitled to scrutinize and assess the materials collected
by the NIA to find out whether there is sufficient material to
proceed against the accused person. In doing so, the High Court
shall keep in mind the principles governing a discharge
application under section 227 Cr.P.C. which provides that if the
Judge forms an opinion upon consideration of the record of the
case including the documents and after hearing the
submissions of the accused and the prosecution that there is
not sufficient ground for proceeding against the accused, he
shall discharge the accused and record his reasons for so doing.
The expression “not sufficient ground for proceeding against the
accused” enjoins upon the Judge to apply his mind and not to
act as mere Post Office before framing the charge against the
accused person at the behest of the prosecution. At this stage,
the Judge is not required to weigh and balance the evidence but
he has to merely sift the evidence in order to find out whether or
not there is sufficient evidence against the accused person. The
language of section 228 Cr.P.C. also indicates that the Judge
shall frame a charge only upon forming an opinion that there
are grounds to presume that the accused person has committed
1
the offence. This is also relevant law as held in “Almohan Das" ,
1
Almohan Das & Ors. v. State of W.B.: (1968) SCC Online SC 85.
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that a Magistrate conducting an inquiry is not intended to act
merely as a recording machine but is entitled to sift and weigh
the materials on record whether there is sufficient evidence for
commitment. Before that, the law was laid down in “K. P.
2
Raghavan" wherein the Hon'ble Supreme Court observed that a
Magistrate inquiring into a case under section 209 Cr.P.C. is not
to act as a mere Post Office, and has to come to a conclusion
that whether a case before him is fit for commitment of the
accused to the Court of Sessions.
5. Briefly stated, two crimes were registered at Azad Nagar
Police Station vide Crime No.95 of 2006 under sections 302,
307, 324, 325, 326, 121-A, 120-B and 34 of the Indian Penal
Code; sections 4 and 5 of the Explosive Substances Act read
with sections 3, 6 and 9-B of the Explosive Act and Crime No.
No.96 of 2006 under sections 302, 307, 324, 325, 326, 121-A,
120-B and 34 of the Indian Penal Code; sections 4 and 5 of the
Explosive Substances Act read with sections 3, 6 and 9-B of the
Explosive Act. The Maharashtra Police claimed that one fake
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bomb was also found on 13 September 2006 at Mohammadia
Masjid Shopping Complex and Crime No.3088 of 2006 was
registered under sections 153-A and 505(2)(3) of the IPC at City
Police Station, Malegaon in district Nashik.
6. After initial investigation conducted by the Maharashtra
police, the Anti-Terrorism Squad, Mumbai renumbered the
aforementioned case as Crime No.07 of 2006 after it took over
the investigation in those three cases by virtue of an order dated
rd
23 October 2006 passed by the Director General of Police,
Maharashtra. The ATS added further offences in the Report and
2
K. P. Raghavan & Anr. v. M. H. Abbas & Anr.: (1966) SCC Online SC 76.
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started investigation also under sections 3(1)(i), 3(2), 3(3) and
3(4) of the MCOCA; sections 10, 13, 16, 17, 18, 19, 20 and 23 of
the Unlawful Activities (Prevention) Act, 1967; sections 6 and
9(b) of the Explosive Act, 1884; sections 3, 4, 5 and 6 of the
Explosive Substance Act, 1908; section 12(1)(c) of the Passport
Act, 1967 and; section 7 of the Criminal Law Amendment Act
against 13 accused persons, namely, A1 Noorul Huda
Samsudoha, A2 Shabbir Ahmed Masiullah, A3 Raees Ahmed
Rajjab Ali Mansuri, A4 Dr. Salman Farsi Abdul Latif Almi, A5
Dr. Farogh Iqbal Ahmed Magdumi, A6 Shaikh Mohd. Ali Alam
Anamat Ali Shaikh, A7 Aasif Khan Bashir Khan @ Junaid @
Abdulla, A8 Mohd. Jahid Abdul Majjid Ansari and A9 Abrar
Ahemd Gulam Ahmed. However, A10 Riyad Ahmed Shafi
Ahmed, A11 Ishtiyaq Ahmed Mohd. Issaq, A12 Munnawar
Ahmed Mohammed Ahmed and A13 Muzammil were shown as
wanted accused persons. A charge-sheet was laid by the ATS on
st
21 December 2006 in Crime No.07 of 2006 and the trial Court
took cognizance of the offence and registered the crime as
MCOC Special Case No.23 of 2006. At that time, this was the
prosecution’s case as narrated by the ATS that the
aforementioned accused persons were members of the Students
Islamic Movement of India (SIMI). They formed an organized
crime syndicate and committed illegal acts in pursuance of a
criminal conspiracy with an object to promote insurgency and to
overthrow the Government. This is the case projected by the
ATS that A6 Shaikh Mohd. Ali Alam Anamat Ali Shaikh visited
st
Pakistan on 1 February 2003 and received terrorist training.
Thereafter, A2 Shabbir Ahmed Masiullah was also sent for
undergoing terrorist training in Pakistan. T he ATS further
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claimed that there was a meeting of the accused persons after
the marriage of Noorul Huda Samsudoha in May 2006 and they
decided to cause bomb blasts in Muslim populated area to
infuriate Muslims for causing riots. A6 Shaikh Mohd. Ali Alam
Anamat Shaikh and A7 Aasif Khan Bashir Khan @ Junaid @
Abdulla procured the materials including 20 kilogram RDX for
making the bombs and handed over the same to A2 Shabbir
Ahmed Masiullah who stored the materials in his godown at
Malegaon. It was on the instructions of two Pakistani nationals
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in 4 week of July 2006 that Muzammil provided guidance to
other accused persons for making the bombs which was
prepared at the godown of A2 Shabbir Ahmed Masiullah. They
purchased bicycles from Hindu shop owners for the operations
and caused bomb blasts on the busy day of Shab-e-barat which
was a Friday.
7. After the trial Court took cognizance of the offences and
registered MCOC Special Case No.3 of 2006, the CBI came into
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picture by virtue of Notification dated 5 February 2007 and
registered BS-2/2007/S/0001/CBI/STF/MUM. After further
investigation, a supplementary charge-sheet was filed by the
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CBI on 11 February 2010 against the aforementioned thirteen
accused persons. In the meantime, A2 Shabbir Ahmed
Masiullah and other accused persons were arrested. In the
course of further investigation, the CBI collected CD of
intercepted conversation etc. and received forensic voice
examination report from the CFSL. The CBI intercepted
conversation of the accused persons which were stored in Sony
audio cassette. It contained a voice of Mohammed Jahid Abdul
Majid Ansari and others. The CFSL report gave a positive
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information confirming that the voice samples were matching
with the voice of Mohammed Jahid Abdul Majid Ansari in
linguistic and phonetic features. The CBI further claimed that
Mohammed Amin Choudhary gave a statement that Abrar
Ahmed Gulam Ahmed was the son-in-law of his maternal uncle
Iqbal Choudhary. The said accused visited him around 8:00 pm
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on 8 September 2006 and disclosed that he was aware of the
accused persons who were involved in Malegaon bomb blast.
The CBI laid in evidence the confidential letter dated
st
1 February 2010 from Pradip Sawant to Additional SP CBI/SPF
regarding Customer Application Form of Mobile No.9823436809
which belonged to Abrar Ahmed Gulam Ahmed. This witness
further confirmed that necessary permission was obtained for
secret interception of Mobile No.9823436809. The CBI produced
another witness to confirm that a call from Mobile
No.9823436809 was recorded in hard-disk of the computer kept
in the technical room of ATS.
8. However, the Government of India directed the NIA vide its
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order dated 4 April 2011 to take over the case for further
investigation and the NIA registered RC-03/2011/NIA/DLI on
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6 April 2011. Quite surprisingly, the NIA filed a supplementary
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charge-sheet on 25 May 2013 against Manohar s/o Ram Singh
Narwaria, Rajendra s/o Vikram Singh Chaudhary, Dhan Singh
s/o Shiv Singh, Lokesh s/o Gopal Krishan Sharma, Sunil s/o
Shyamlal Joshi, Ramchandra s/o Gopal Singh Kalsangara,
Ramesh s/o Venkat Mahalkar and Sandeep s/o Vishwas Dange.
Among these accused persons, Sunil Shyamlal Joshi was shown
as dead, Ramcharan Kalsangara was described as absconding,
and Ramesh Mahalkar and Sandeep Dange were described as
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wanted accused persons. In its supplementary charge-sheet, the
NIA stated that one Assemanand who was an accused made a
confessional statement wherein he made a disclosure that Sunil
Joshi had told him that the Malegaon bomb blasts were handy
work of his boys. According to him, it was proposed in the
meeting held in June 2006 that Malegaon may be a suitable
place which has 86% Muslim population and Sunil Joshi
assured that during the Diwali his persons would cause bomb
blasts in Malegaon. The NIA recorded statements of a few
accused persons among A1 to A11 who had previously suffered
disclosure statements in MCOCA and were in judicial custody.
According to the NIA, those accused persons stated that their
confessions were recorded by the ATS under duress and
pressure and they retracted their confessional statements. For
example, the confessional statement of Abrar Ahemd Gulam
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Ahmed was recorded on 19 December 2006 and 20 December
2006 by a Deputy Commissioner of Mumbai Police. He gave his
confessional statement also before the Chief Metropolitan
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Magistrate on 20 December 2006 and moved an application on
st
21 December 2006 for turning approver but, later on, he
retracted from his earlier statement before the NIA. There were
protected witnesses out of whom C3 and C4 stated before the
NIA that they were not present at the time of seizure of soil
samples from the godown of Shabbir Ahmed Masiullah. The
protected witness A-369 was a key witness for the ATS who gave
his confessional statement under section 164 of the Code of
rd
Criminal Procedure on 23 November 2006 but, thereafter, he
became traceless. However, the NIA claims that it examined him
and he retracted from his previous statement under section 164
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Cr.P.C. He gave a new statement under section 164 Cr.P.C.
which contradicts his previous statement.
9. In the counter affidavit filed on behalf of the respondent
nos.7 and 8, the NIA states that the appellants, namely,
Manohar Narwaria, Rajendra Chaudhary, Dhan Singh and
Lokesh Sharma filed their discharge applications on different
th th
dates between 14 January 2020 to 15 March 2020 vide Exh.
Nos.645, 649, 653 and 654 which were disposed of as not
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pressed on 15 September 2025. It is further stated that the
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order framing charge made on 30 September 2025 is a well
reasoned order based on appreciation of evidence produced with
the charge-sheet and no interference is called for, at this crucial
stage. In this counter affidavit, the NIA states that the evidence
collected by it in course of further investigation did not match
with the materials collected by the ATS and CBI. However,
except narrating the incident and filing of the charge-sheet and
supplementary charge-sheets by the CBI and NIA, nothing
relevant has been stated by the NIA so as to support the order
framing charge.
10. Mr. Girish Kulkarni, the learned senior counsel for the
appellants contended that the appellants cannot be put on trial
on the same set of materials which were collected by the ATS
and CBI and, more particularly, because the evidence collected
by the NIA is inadmissible in evidence and not sufficient to put
the appellants on trial. Supporting him, Mr. Kaushik Mhatre,
the learned counsel submitted that the disclosure statements
made by the appellants before the NIA and so-called pointing
evidence relied upon by the NIA or the retracted statements of
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12 witnesses recorded on 29 and 30 July 2011 can not be a
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valid ground to discard the prosecution story in the charge-
sheet filed by the ATS which was adopted by the CBI and
cognizance of the offence thereon was taken by the Special
st
Judge on 21 December 2006. The learned counsel referred to
3 4
the decision in “Gireesan Nair" , “Vinay Tyagi" and “K.
5
Chandrashekhar" and submitted that there is no legally
admissible evidence collected by the investigating agency in
course of further investigation on the basis of which a charge for
committing any of the offences under nineteen heads as
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indicated in the order dated 30 September 2025 can be framed
against the appellants. Mr. Mhatre, the learned counsel
contended that the Test Identification Parade conducted by the
NIA has no evidentiary value and that cannot even be
considered as an independent circumstance in the chain of
circumstances required to be proved by the NIA ( vide , “Gireesan
Nair” ). The learned counsel further submitted that the NIA has
conducted a fresh and new investigation in the garb of further
investigation which is impermissible in law ( vide , “ Vinay Tyagi”) .
Per contra , Mr. Anil C. Singh, the learned Additional Solicitor
General appearing for the NIA submitted that there are
additional incriminating materials collected by the NIA such as
arrest panchanama, pointing out discovery and disclosure
statements, TIP evidence, production-cum-seizure memo,
handwriting specimen, finger prints and FSL reports which
prima-facie disclose participation of the appellants in the crime.
11. The disclosure statements of the appellants were not
recorded in the presence of a Magistrate under section 164
3
Gireesan Nair v. State of Kerala: (2023) 1 SCC 180.
4
Vinay Tyagi v. Irshad Ali: (2013) 5 SCC 762.
5
K. Chandrashekhar v. State of Kerala & Ors.: (1998) 5 SCC 223
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Cr.P.C. and the NIA relies upon the statements made by the
appellants while they were in their custody and led them to the
places where planning and preparation of the bomb blasts took
place. The Latin phrase "habemus optimum testem confitentem
reum” which means "we have the best witness, a confessing
defendant" was the guiding thought in earlier times. Lord
Sumner said that the rules of common law relating to
confessions were "as old as Lord Hale". Lord Sumner made the
6
following noteworthy statement of law in "Ibrahim" :-
"It has long been established as a positive rule of English criminal
law, that no statement by an accused is admissible in evidence
against him unless it is shown by the prosecution to have been a
voluntary statement, in the sense that it has not been obtained
from him either by fear of prejudice or hope of advantage exercised
or held out by a person in authority. The principle is as old as Lord
Hale."
12. The jurisprudence on Criminal Law in India does not
recognize the general perception that “he would never have
confessed unless he was guilty”. The Indian Evidence Act, 1872
does not recognize the confession of a person accused of an
offence admissible in evidence. Section 25 makes a confession
to a police officer inadmissible against the accused person.
Similarly, section 26 puts a bar on a confession of a person in
the custody of a police officer being proved unless it is made in
the immediate presence of a Magistrate. However, the statement
made by an accused person in the police custody can be utilized
by the prosecution provided it relates distinctly to the facts
discovered in consequence of the information supplied by the
accused. The disclosure statements of the appellants and other
materials collected by the NIA cannot be relied upon to frame
charges against them. The disclosure statements given by the
6
Ibrahim v. The King: (1914) A.C. 599.
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appellants cannot be used against them and the recovery of any
incriminating articles six years after the occurrence and, that
too, from a place accessible to general public shall not come
within the sweep of section 27.
13. The NIA seeks to rely on the evidence of identification of
the appellants in test parade. The Test Identification Parade
refers to a process by which a witness confirms the identity of
the suspect. In the Test Identification Parade, the suspect is
mixed up with several “fillers” who may be prisoners, actors,
police officers or common citizen and stand side by side. The
evidence of the Test Identification Parade is required to be
appreciated having regard to the background of entire case and
not in isolation. A Test Identification Parade is conducted under
section 9 of the Indian Evidence Act as a part of investigation
and it is not considered as a substantive piece of evidence. It is
never considered such a piece of evidence on which conviction
of an accused can be recorded. There is requirement in law that
the witnesses should have spoken about descriptive features
and particulars of the accused persons before he was put on the
Test Identification Parade. There is also a necessity for
conducting the Test Identification Parade without delay. The
reason is that the accused person may be shown to the
witnesses or there may be an occasion for them to see the
7
photographs of the accused person. In “Budhsen” , the Hon'ble
Supreme Court set aside the conviction of the accused person
which was based solely on the identification made in a Test
Identification Parade. There are decisions where the evidence of
Test Identification Parade was found not worthy of consideration
7
Budhsen v. State of U.P.: (1970) 2 SCC 128.
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on account of the delay and the accused person was acquitted
8
on that ground alone. In “ Subash” the delay was of three
9
weeks; “Dr M.V. Ramana Reddy” refers to a delay of 10 days;
and there was a delay of one month in “Rajesh Govind
10
Jagesha” . The Test Identification Parade conducted by the NIA
about six years after the occurrence would have no probative
value. This also is not a ground available to the NIA to make use
of the evidence of Test Identification Parade as corroborative
evidence on the ground that the appellants were put on “6
11
pack” immediately after their arrest.
14. Notwithstanding that, the materials gathered by the NIA in
course of further investigation are found sufficient by the
Special Judge to frame charges on nineteen heads against the
appellants. The appellants have been charged for causing death
by triggering a series of bomb blasts in furtherance of a criminal
conspiracy to incite hatred leading to riots. For framing a charge
against an accused person for a serious crime like murder etc.
which may invite punishment for death, the trial Court must be
on guard to see whether there is sufficient material for
proceeding against the accused person. Mr. Kaushik Mhatre,
the learned counsel for the appellants-Rajendra Chaudhary and
Dhan Singh contended that the disclosure statement of
Assemanand recorded in the course of the investigation in
Makkah Masjid blast case by the Central Bureau of
Investigation is a piece of inadmissible evidence. The said
disclosure statement of Assemanand was not found to be
voluntary by the trial Courts at Ajmer and Hyderabad and he is
8
Subhash v. State of U.P.: (1987) 3 SCC 331.
9
State of A.P. v. Dr. M. V. Ramana Reddy: (1991) 4 SCC 536.
10
Rajesh Govind Jagesha v. State of Maharashtra: (1999) 8 SCC 428.
11
A term used in USA for Test Identification Parade
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not a listed witness in the supplementary charge-sheet filed by
the NIA. The discharge applications filed by A1, A2, A3 and A5
to A9 were opposed by the ATS on several grounds. The ATS
opposed the discharge applications on the ground that the
disclosure statements of A1, A2, A3 and A5 to A8 were recorded
under section 18 of MCOCA and they confirmed their
confessional statements when they were produced before the
Magistrate. A-369 who was produced by the ATS gave a
statement under section 164 Cr.P.C that the first set of accused
persons had prepared bombs along with the Pakistani
nationals. A Test Identification Parade was conducted by the
th
ATS on 18 December 2006 in which A-396 identified A6 and
A7 who were present in the godown at the time of preparation of
the bombs in July 2006. Several literature of banned
organization SIMI were recovered from the possession of A1 and
A4. Besides other evidences such as voice sample, FSL reports
etc., the ATS relied on an order passed by the trial Court under
section 306 Cr.P.C. granting pardon to A9 and he became an
th
approver. However, the Special Judge in his order dated 25
April 2016 referred to the supplementary charge-sheet filed by
the NIA, the retracted statements of A1 to A3 and A5 to A8 and
A-369 and held that A1 to A9 were projected as accused persons
by the ATS merely on suspicion because they had criminal
12
antecedents. In "Damu Gopinath Shinde & Ors.” , the Hon’ble
Supreme Court reiterated that conviction of an accused can be
based on his retracted confession even though recorded by the
Magistrate under section 164 Cr.P.C. T he discharge applications
filed by A1, A2, A3 and A5 to A9 vide Exh. Nos.501, 505 and
12
State of Maharashtra v. Damu Gopinath Shinde & Ors.: (2010) 6 SCc 269.
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508 in MCOC Case No.23 of 2006 were allowed by the Special
th
Judge on 25 April 2016. The Special Judge further held that A-
4 who appeared in person and did not file any application for
discharge was also entitled to similar treatment and discharged
him.
15. This is an admitted case that no person has come forward to
make a statement before the NIA that he has seen any one of the
appellants engaged in the bomb blasts. The case of the NIA solely
rests on circumstantial evidence which is primarily in the nature
of confessional statements by the appellants and Assemanand
and the retracted statements of the witnesses and the first set of
accused persons sent up for trial by the ATS and CBI. This is also
a matter of record that on receiving the information about
disclosure statement made by Assemanand the Central
nd th
Government passed the orders dated 22 March 2011 and 4
April 2011 directing the NIA to take over Crime No.07 of 2026.
There seems to be considerable force in the argument that the NIA
conducted a fresh and de-novo investigation inasmuch as it has
relied on the retracted confessional statements of the accused
persons who were sent-up for trial by the ATS and CBI. In “ Vinay
Tyagi” , the Hon'ble Supreme Court held that no investigation
agency is empowered to conduct fresh, de-novo or reinvestigation
in relation to the offence for which it had already filed a report in
terms of section 173(2) Cr.P.C.
16. Lord Russel Killowen rendered an opinion in “Sheo
13
Swarup" that the High Court in its conduct of an appeal
should and will act in accordance with the rules and principles
well-known and recognized in the administration of justice. A
13
Sheo Swarup v. King Emperor: AIR 1934 PC 227(2).
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criminal trial is not like a fairy tale where one is free to give
flight to one’s imagination and fantasy. [ vide , "Jagir Singh &
14
Ors.” ]. To recapitulate, the NIA projected an altogether new
story that the appellants and other accused persons entered
into a criminal conspiracy to commit terrorists acts with an
intention to strike terror in the minds of the people. They were
given arms and bomb preparation training at Bagli (MP) under
the supervision of Sunil Shyamlal Joshi, Ramchandra Gopal
Singh Kalsangara and Lokesh Sharma. In the supplementary
charge-sheet, the NIA narrated its story on how appellants along
with the wanted accused persons made preparations, planning
and procurement of materials and caused the bomb blasts.
However, what is important to keep in mind is that the NIA
created the prosecution story mainly on the basis of confession
and spot discovery statements of the appellants. The new story
propounded by the NIA is based on retraction of confessional
statements made by A1 to A3 and A5 to A8 and A-369. In the
nd
supplementary charge-sheet dated 22 May 2013, the NIA has
described the spot verification by the appellants as under:-
“(xxvii) During the course of further investigation, the important
locations at Malegaon where the accused persons got down from
the bus and the places where IED/bombs were planted have
been identified by arrested accused Rajendra Chaudhary (A-15),
Dhan Singh Shiv Singh (A-16) and Manohar Narwaria (A-14). The
spot identifications were done by the arrested accused persons
after recording their disclosure memorandums. All the three
arrested accused persons also identified the spot at the bus
stand at Jalgaon where they got down from the bus and also the
spot from where they boarded private bus to Indore after
plantation of the bomb at Malegaon on 08/09/2006. All the four
arrested accused persons were taken to Bagli where they
identified the place of training camp in which the assembling of
IED/bomb was demonstrated. They also identified the spot
where the explosion of IED/bomb was demonstrated. A map
from forest department, Bagli (M.P.) indicating the above spot was
collected during investigation. The arrested accused persons also
14
State of Punjab v. Jagir Singh & Ors.: (1974) 3 SCC 277.
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identified the bouse where the bombs/IED used at Malegaon
bomb blast was prepared.”
17. On the other hand, the ATS claimed that the accused
Mohd. Jahid Majjid Ansari was one of the planters of the bomb
at Malegaon. The ATS is supported by the CBI on every
particulars of the case and relied on the evidence collected by
the ATS. However, the NIA says that on the day of the blast the
said accused was located at Fulsawangi in the district of
Yavatmal which is about 400 km from the blast site. According
to the ATS, the responsibility of purchasing bicycles was
entrusted to A3-Munnawar Ahmed Mohammed Amin but the
NIA claims that Rajendra Chaudhary went to a Cycle shop and
purchased Atlas cycle in the name of Badal Yadav. The NIA
further claims that Manohar Narwaria went to another Cycle
shop and purchased a Hero Jet cycle in the name of Sumer
Thakur. This new story of involvement of the appellants is based
on the disclosure statements suffered by the appellants. In
15
“Pulukuri Kotayya & Ors" , it was held that the information as
to past user or past history of the object produced would not
relate to any discovery of a fact. The materials collected by the
NIA to show that the appellants purchased bicycles which were
used in the crime are hearsay evidence. This was a fact known
to the Investigating Agency that bicycles were purchased and
used in the crime by the first set of accused persons who were
sent up for trial by the ATS and CBI. The NIA has projected an
entirely different story and states that the investigation of the
case is still continuing and further evidence is being collected
against the accused persons and requested the Special Court to
permit it to continue further investigation of the case as per the
15
Pulukuri Kotayya & Ors. v. King-Emperor: 1949 SCC Online PC 47.
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provisions of section 173(8) Cr.P.C. The NIA completely ignored
the charge-sheet laid by the ATS which gives a vivid narration of
the entire planning by A1 to A13. The ATS collected
incriminating materials from the place of incident and those
materials were sent for forensic examination. This is the report
of the Forensic Science Laboratory (FSL) that there were traces
of RDX in the soil samples collected from the place of
occurrence and the godown of A2 Shabbir Ahmed Masiullah and
both the samples were found to be the same. There is another
FSL report which confirmed the presence of RDX and
Ammonium Nitrate, charcoal, fuel oil etc. in the samples.
18. The Special Judge overlooked the inherent contradiction
and intrinsic improbability in the prosecution story as put forth
by the NIA. There is no explanation coming forth as to how the
voice samples and FSL reports collected by the ATS and CBI
can be ignored by the trial Court. The things as stand today give
two contradictory versions of the incident and both stories as
floated by the ATS and NIA cannot be reconciled by any stretch
of imagination. The evidence collected by the ATS in course of
the investigation is not wiped out from the record and have to
be considered by the trial Court even if the appellants are
required to face the trial. There seems to be no answer in law as
to how the trial Judge can deal with the materials collected by
the ATS which implicates another set of accused persons. The
case seems to have reached a dead end.
19. This is well settled that the Court while considering the
question of framing the charges has undoubted power to sift
and weigh the evidence for the limited purpose of finding out
whether a case is made out against the accused person. The
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Court shall be within its powers to frame the charge against the
accused person if the materials placed before it disclose grave
suspicion which is not properly explained by the accused
16
person to the Court. In “Ramesh Singh" , the Hon'ble Supreme
Court held that the Court is not required to meticulously
examine the truth and veracity of the evidence which the
prosecutor proposes to adduce at the initial stage of the trial.
More precisely, the Court is not required at this stage to see
that there is sufficient ground for conviction of the accused
person or that the trial is sure to end in his conviction. In
17
“Chandra Deo Singh" , the Hon'ble Supreme Court observed
that unless the Magistrate finds that the evidence laid before
him is self-contradictory or untrustworthy, the process cannot
be refused if the evidence laid before him makes out a prima-
facie case. In “Superintendent and Remembrancer of Legal
18
Affairs, West Bengal" , the Hon'ble Supreme Court held that
even a very strong suspicion founded upon materials before the
Magistrate, which leads him to form a presumptive opinion as to
the existence of the factual ingredients constituting the offence
alleged, may justify the framing of charge against the accused
person in respect of the commission of that offence. This is also
quite well settled that the accused person is not required to
undergo the rigors of trial if he is able to demonstrate before the
Court that the order framing charge is based on such evidence
collected by the Investigating Agency which does not involve the
19
accused person in the crime. ( vide , “Rajiv Thapar & Ors." ). In
16
State of Bihar v. Ramesh Singh: (1977) 4 SCC 39.
17
Chandra Deo Singh v. Prokash Chandra Bose & Anr.: (1963) SCC Online SC
4.
18
Superintendent and Remembrancer of Legal Affairs, West Bengal v. Anil
Kumar Bhunja & Ors: (1979) 4 SCC 274.
19
Rajiv Thapar & Ors. v. Madan Lal Kapoor: (2013) 3 SCC 330.
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20
"N. Suresh Rajan" , the Hon'ble Supreme Court held that the
trial Judge is required at this stage to examine the probative
value of the materials without going deep into the matter. In
21
“Sajjan Kumar" , the Hon'ble Supreme Court laid down the
following principles:
“(i) The Judge while considering the question of framing the
charges under Section 227 CrPC has the undoubted power to sift
and weigh the evidence for the limited purpose of finding out
whether or not a prima facie case against the accused has been
made out. The test to determine prima facie case would depend
upon the facts of each case.
(ii) Where the materials placed before the court disclose grave
suspicion against the accused which has not been properly
explained, the court will be fully justified in framing a charge and
proceeding with the trial.
(iii) The court cannot act merely as a post office or a mouthpiece of
the prosecution but has to consider the broad probabilities of the
case, the total effect of the evidence and the documents produced
before the court, any basic infirmities, etc. However, at this stage,
there cannot be a roving enquiry into the pros and cons of the
matter and weigh the evidence as if he was conducting a trial.
(iv) If on the basis of the material on record, the court could form an
opinion that the accused might have committed offence, it can
frame the charge, though for conviction the conclusion is required
to be proved beyond reasonable doubt that the accused has
committed the offence.
(v) At the time of framing of the charges, the probative value of the
material on record cannot be gone into but before framing a charge
the court must apply its judicial mind on the material placed on
record and must be satisfied that the commission of offence by the
accused was possible.
(vi) At the stage of Sections 227 and 228, the court is required to
evaluate the material and documents on record with a view to find
out if the facts emerging therefrom taken at their face value
disclose the existence of all the ingredients constituting the alleged
offence. For this limited purpose, sift the evidence as it cannot be
expected even at that initial stage to accept all that the prosecution
states as gospel truth even if it is opposed to common sense or the
broad probabilities of the case.
(vii) If two views are possible and one of them gives rise to
suspicion only, as distinguished from grave suspicion, the trial
Judge will be empowered to discharge the accused and at this
stage, he is not to see whether the trial will end in conviction or
acquittal.”
20
State of T. N. v. N. Suresh Rajan & Ors.: (2014) 11 SCC 709.
21
Sajjan Kumar v. CBI: (2010) 9 SCC 368.
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20. The diagonally opposite stories in the charge-sheet filed by
the ATS and the NIA lead nowhere. The witnesses proposed by
the NIA are mostly hearsay witnesses. The materials collected
by the NIA regarding purchase of bicycles etc. even if found
truthful and admissible, cannot be considered as incriminating
material against the appellants. A further investigation does not
start with recording the statement of the accused person in a
case. The further investigation is carried for the purposes of
recording the evidence of a few more witnesses and for collection
of additional materials to add other offences or another accused
person. This is a mystery why the NIA did not collect fresh
materials and started recording the retracted statement of the
accused persons A1 to A3 and A5 to A8. The retracted
statements of a few witnesses on which the NIA seeks to lay a
case against the appellants can also not be admissible evidence.
A witness who gives two versions of a story and retracts his
previous statement becomes an unreliable witness and his
testimony is liable to be discarded.
21. For the foregoing reasons, we hold that there is no
sufficient material on record to proceed against the appellants.
The Special Judge did not apply his judicial mind to the
materials laid before him and considered the materials which
are not admissible in evidence to frame charges against the
appellants, namely, (i) Manohar Ramsingh Narwaria @ Digaria
@ Sumer Thakur (ii) Rajendra Vikramsingh Chaudhari @
Dashrath @ Samander @ Badal Yadav @ Laxman Das (iii) Dhan
Singh Shiv Singh @ Ram Lakhan Das Maharaj @ Subhash @
Lakhan, and (iv) Lokesh Sharma @ Kalu Pandit @ Ajay Tiwari.
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th
The order dated 30 September 2025 framing charges against
them is set aside and the appellants are discharged. They are
also discharged of the liability of bail bonds furnished by them.
22. Criminal Appeal No.107 of 2026 and Criminal Appeal
(Stamp) No.2772 of 2026 are allowed.
[SHYAM C. CHANDAK, J.] [CHIEF JUSTICE]
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