Full Judgment Text
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2005:BHC-AS:18405-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE
CRIMINAL APPLICATION NO. 716 OF 2005 CRIMINAL APPLICATION NO. 716 OF 2005 CRIMINAL APPLICATION NO. 716 OF 2005
ADNAN BILAL MULLA .. APPELLANT
Versus
THE STATE OF MAHARASHTRA .. RESPONDENS
Mr. Mubin Solkar for appellant
Mr. S. R.Borulkar PP
CORAM: SMT. RANJANA DESAI & CORAM: SMT. RANJANA DESAI & CORAM: SMT. RANJANA DESAI &
ANOOP V. MOHTA, JJ. JJ. JJ.
DATED: 6/10/2005
ORAL JUDGMENT: (Per Smt. Ranjana Desai, J.)
. Admit. Respondent waives service. By consent
of the parties taken up for hearing forthwith.
2. The appellant along with others is being tried
in POTA Special Case No. 2/03 in the Special Court
constituted under The Prevention of Terrorism Act,
2002 ("POTA" for short).
3. In this case the appellant accused preferred
application for certain reliefs. The application
preferred by the appellant is M. A. No. 26/05.
The application contained following prayers:
a) To restrain the Prosecution from proceeding with
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a joint trial in respect of Mulund Bomb Blast
offence i.e. DCB, CID C.R. No. 21/03, the Vile
Parle Bomb Blast i.e. C.R. No. 09/03 and the
Bombay Central Bomb Blast i.e. C.R. No. 124/02
i.e. 59/03.
b) To direct the Respondents/Prosecution to take
comply with the necessary pre-trial formalities in
order to separately proceed in respect of Mulund
Blast vide C.R. No. 21/03. Vile Parle Blast vide
C.R. No. 09/03 and Mumbai Central Blast vice C.R.
No. 59/03.
c) To stay framing of charges of Joint Trial in
POTA SPL. Case No. 2/2003 till final hearing and
disposal of this application.
4. The special court by its order dated 30th July,
2005, rejected the application. Being aggrieved by
the said judgment and order, the appellant has
preferred this appeal under Section 34 of the POTA.
5. Before we go to the rival contentions it is
necessary to have a look at the facts. The city of
Mumbai and it’s suburbs were rocked by a series of
bomb blasts which took place between 2/12/2002 and
13/3/2003 i.e. within a period of about three
months. The first bomb blast occurred on 2/12/2002
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at Ghatkopar in a bus near the railway station. It
was registered as DCB CID C.R. No. 156/02. The
second bomb blast took place on 6/12/02 near Mc
Donald Restaurant at Bombay Central Railway
Station. It was registered as DCB CID C.R. No.
59/03. The third bomb blast took place on 27/1/03
at Vile Parle vegetable market and it was
registered as DCB CID C.R. No. 9/03 and the
fourth bomb blast took place on 13/3/03 at Mulund
in Karjat bound train. It was registered as DCB
CID C.R. No. 21/03 It is a matter of common
knowledge that these blasts caused heavy damage to
the property and resulted in loss of human lives.
6. The basic submission of Mr. Solkar, learned
counsel for the appellant is that all these blasts
are distinct incidents constituting distinct
offences and investigated by distinct officers.
They are cases registered at distinct police
stations. Independent applications are preferred
by different officers in these cases and,
therefore, they cannot be clubbed together and
cannot be tried together.
7. Mr. Solkar pointed out that in respect of
Ghatkopar bomb blast six accused were arrested. In
respect of Bombay Central and Vile Parle blasts no
arrests were effected till April, 2003. On 10/4/03
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Nachan accused 1 surrendered in Mulund blast case.
Mr. Solkar pointed out that all 16 accused who are
implicated in Mulund blast case are not implicated
in Mumbai Central and Vile Parle bomb blast cases.
The appellant was arrested on 9/6/2003 only in
connection with Mulund blast. He is not arrested
in connection with other blasts. Only 11 accused
are implicated in Vile Parle bomb blast incident
and 8 accused are implicated in Mumbai Central bomb
blast incident. He contended that there is no
material to show that all these acts form part of
the same transaction. Mr. Solkar further pointed
out that the two replies filed by the prosecution
in the special court contain contradictory
averments. Whereas in one reply it is stated that
different acts have been committed by different
accused persons in pursuance of and in
accomplishment of the same object of conspiracy
and, therefore, all the offences committed by the
accused can be jointly tried in the other affidavit
it is stated that there is no question of joint
trial. Mr. Solkar then contended that the learned
judge has wrongly relied on Sections 184 and 219 of
the Criminal Procedure Code (2 of 1974) ("Code" for
short). He submitted that Section 184 only refers
to place of trial for offence. It refers to the
jurisdiction or competence of a court to try
offence and Section 219 refers to a specific
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person. It does not refer to different accused,
accused of different offences which is the case
here.
8. He drew our attention to Section 219(2) where
the meaning of phrase offence of the same kind is
given. The learned counsel submitted that the
offences are of the same kind when they are
punishable with the same amount of punishment under
the same section of the Indian Penal Code or of any
special or local laws. He submitted that if this
meaning of the term offence of the same kind is
taken into consideration Section 219 can never have
application to the facts of this case. He
submitted that the prosecution cannot resort to
Section 219 when there are different accused,
accused of different offences because there is an
express provision under Section 223 of the Code for
that purpose. He, therefore, submitted that the
special court has fallen into a grave error in
coming to the conclusion that Section 184 and
Section 219 of the Code are attracted to the facts
of the present case. The judgment of the Special
Court, therefore, suffers from patent illegalities
and deserves to be set aside.
9. The learned counsel contended that to the facts
of this case even Section 223 of the Code will not
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be applicable because to fall under this category
the appellant will have to be accused of all the
offences which is not the case here. He submitted
that the appellant is arrested only in the Mulund
blast case. Drawing our attention to Section 223
(d) the learned counsel contended that Section 223
(d) has three ingredients. He submitted that there
must be more than one person, such persons must be
accused of different offences and the offences must
be committed in the course of the same transaction.
The learned counsel urged that undoubtedly there
are more than one persons in this case, and there
are three different offences. But it can never be
said that these offences are committed in the
course of the same transaction.
10. In support of his submission the learned
counsel relied on Jayaraj alias James v. State of
Kerala, 2001 CRI. L.J. 4059, D. K. Chandra v.
The State, 1952 Cri. L.J. 779, Yusuf Khan v.
Emperor A.I.R. (35) 1948 Patna 122.
11. Referring to Jayaraj’s case Mr. Solkar
contended that there two separate cases were not
registered for the two offences, but the seizure in
question had taken place in quick succession. The
Kerala High Court observed that the two acts were
so connected together as to form the same
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transaction and they are committed by the same
person and, therefore, one trial was sufficient for
two acts. Mr. Solkar contended that, therefore,
if there are different offences registered at
different police stations, they cannot form the
same transaction and cannot be tried together.
12. The learned counsel referred to following
observations of the Full Bench of this court in D.
K. Chandra’s case where this court was considering
the relevant provisions of the Criminal Procedure
Code (1898) ("Code of 1898" for short);
. "If the prosecution wishes to justify a trial in
which charges are joined, it is for the prosecution
strictly to establish that the joinder is
permissible under either S. 234, 235 or 236. It
is well known canon of construction that exceptions
must be strictly construed, and unless the
prosecution satisfies the Court that the exception
has been strictly complied with, the joinder of
charges in a trial must be held to be contrary to
law. It may be possible in a conceivable case for
the prosecution to establish that a case falls
under more than one exception. But if it falls
under more than one exception it must so fall that
it must not infringe the provisions of any of the
three sections. It is not permissible for the
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prosecution to combine and supplement the three
sections in such a manner as to contravene the
provisions of any of these three sections."
13. He then took us to following observations of
the Patna High Court in Yusuf Khan’s case (supra);
. "Whether the offences are committed in course of
the same transaction is to be judged from a common
sense point of view. Uniformity of time or place
are not sufficient to make one transaction of the
acts committed then and there. There must be
accomplishment of a certain object or performance
of a certain act in view. In order that the
different acts will make up one transaction, it
must be inherent in them that from the very
beginning of the earliest act or the first act, the
other acts should either be in contemplation, or
should from the very nature of the transaction in
view form the component parts of one whole.
Continuity of action is not intended in the sense
that one act must immediately follow the other
without any other connection. Continuity refers
not to the time so much as to the intimate
connection between the acts."
14. Mr. Solkar also relied on Imtiaz Ahmed v.
State of Madhya Pradesh 1997 Cr. L. J. 1841 and
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urged that in cases of incidents involving more
than one accused persons, if offences are not prima
facie made out against the accused persons
individual framing of common charges against all
the accused is improper.
15. Relying on these judgments the learned counsel
contended that unless there is intimate connection
between the acts or the acts form the component
parts of one whole they cannot be said to have been
committed in the course of the same transaction.
Such connection according to Mr. Solkar is lacking
in this case.
16. Mr. Solkar further submitted that the
prosecution does not have any evidence to establish
conspiracy. He submitted that the confessional
statement of accused Dr. A. Wahid Ansari, who has
allegedly confessed of his involvement in two
offences of bomb blasts, i.e. i.e. at Vile Parle
and Bombay Central is absolutely silent about
Mulund blast. The confessional statement of
accused 2 Muzammil Ansari does not reveal any facts
against the appellant. In the circumstances there
is nothing to indicate that the different offences
are committed in the course of same transaction or
there is any conspiracy at all.
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17. We have also heard at length Mr. Borulkar,
learned PP. He submitted that the accused are
charged with conspiracy. There is enough
indication in the evidence that all the offences
form part of the same transaction. He contended
that the present case is covered by Section 223(d)
of the Code. He relied on Aftab Ahmed Khan v.
State of Hyderabad, AIR 1954 SC 436, Kadiri
Kunhahammad v. The State of Madras AIR 1960 SC
661, The State of Andhra Pradesh v. Cheemalapati
Rao & Anr., AIR 1963 SC 1850, Mohan Baitha & Ors.
v. State of Bihar & Anr., AIR 2001 SC 1490 and a
judgment of this court in State of Maharashtra v.
Anjanabai, 1997 Cr. L.J. 2309, and contended that
no interference is necessary with the impugned
order.
18. The relevant provisions of the Code will have
to be seen to understand the submissions of the
learned counsel. Section 218 of the Code states
that for every distinct offence of which any person
is accused there shall be a separate charge and
every such charge shall be tried separately.
Sub-section (2) further states that Nothing in
sub-section (1) shall affect the operation of the
provisions of sections 219,220,221 and 223.
Therefore, separate trial is a rule. Section 219,
220, 221 and 223 carve out exceptions to this rule.
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Section 219 says that when a person is accused of
more offences than one of the same kind committed
within the space of twelve months from the first to
the last of such offences, whether in respect of
the same person or not he may be charged with and
tried at one trial for the same. However, the
offences shall not exceed three. Section 220
provides for trial for more than one offence.
Section 220(1) says that if, in one series of acts
so connected together as to form the same
transaction, more offences than one are committed
by the same person, he may be charged with, and
tried at one trial for, every such offence.
Section 223 states what persons may be charged
jointly. In our opinion in this case we would be
concerned with Section 223 (d) because different
offences are committed in the course of the same
transaction. Section 223 so far as it is relevant
reads thus:
. "223. What persons may may be charged jointly-
The following persons may be charged and tried
together, namely:-
(a) . . . . . .
(b) . . . . . .
(c) . . . . . .
(d) persons accused of different offences committed
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in the course of the same transaction;
(e) . . . . . .
(f) . . . . . .
(g) . . . . . .
19. Before we proceed further we may note that
though Mr. Solkar has tried to address us on
Ghatkopar blast we propose to leave it out because
the said case was tried separately. The accused
therein have been acquitted. We may also note that
some of the judgments which have been cited before
us on the question of joint trial deal with the
relevant provisions of the Code and some deal with
the relevant provisions of the Code of 1898. These
provisions are almost identical and the principles
underlying them are the same.
20. In Aftab’s case (supra) the Supreme Court was
considering the question of joint charges and joint
trials. In that case the offence of extortion was
committed on 14th September. It was one of series
of acts connected with the offence of murder and
attempt to murder committed on the previous day so
as to form the same transaction. The Supreme Court
was dealing with the relevant provisions of the
Code of 1898. The Supreme Court noted that section
233 embodies the general law as to the joinder of
charges and lays down a rule that for every
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distinct offence there should be a separate charge
and every charge should be tried separately. It
was observed that the object of Section 233 is to
save the accused from being embarrassed in his
defence, if distinct offences are humped together
in one charge or in separate charges and are tried
together, but the legislature has engrafted certain
exceptions upon this rule contained in Sections
234, 235, 236 and 239. The Supreme Court referred
to Section 235 which provided that if in one series
of acts so connected together as to form the same
transaction, more offences than one are committed
by the same person he may be charged with and tried
at one trial for every such offence. The Supreme
Court observed that the fact that the offence of
extortion was committed at a different place and at
a different time does not any the less make the act
as one committed in the course of the same
transaction.
21. In Kadiri Kunhahammad’s case (supra) the
Supreme Court was again considering the question of
joint trial. It was interpreting the relevant
provisions of the Code of 1898. The Supreme Court
observed as under:
. "It is true that, in framing the charge against
more persons than one and directing their joint
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trial, courts should carefully examine the nature
of the accusation; but if they are satisfied that
prima facie the accusation made shows that several
persons are charged of different offences and that
the said offences prima facie appear to have been
committed in the course of the same transaction,
their joint trial can and should be ordered."
22. In Cheemalapati Ganeswara Rao’s case (supra)
the same question fell for consideration before the
Supreme Court. The Supreme Court was dealing with
the Code of 1898. It was urged that there was
misjoinder of charges and persons in that the
various provisions of S. 239 were clubbed together
and an omnibus charge of conspiracy was framed
which on its face was likely to embarrass the
accused and make their task of defending themselves
difficult. The Supreme Court noted that under
Section 235 (1) (which corresponds to present
Section 220(1)) what has to be ascertained is
whether the offences arise out of acts so connected
together as to form the same transaction but the
words "so connected together as to form" are not
repeated after the words "same transaction" in
Section 239 (which correspondence to present
Section 223). The Supreme Court, therefore,
considered whether these words are also to be read
in all the clauses of Section 239 which refers to
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the same transaction. Following are the material
observations of the Supreme Court.
. "What is meant by "same transaction" is not
defined anywhere in the Code. Indeed, it would
always be difficult to define precisely what the
expression means. Whether a transaction can be
regarded as the same would necessarily depend upon
the particular facts of each case and it seems to
us to be a difficult task to undertake a definition
of that which the Legislature has deliberately left
undefined. We have not come across a single
decision of any Court which has embarked upon the
difficult task of defining the expression. But it
is generally thought that where there is proximity
of time or place or unity of purpose and design or
continuity of action in respect of a series of
acts, it may be possible to infer that they form
part of the same transaction. It is, however, not
necessary that every one of these elements should
co-exist for a transaction to be regarded as the
same. But if several acts committed by a person
show a unity of purpose or design that would be a
strong circumstance to indicate that those acts
form part of the same transaction. The connection
between a series of acts seems to us to be an
essential ingredient for those acts to constitute
the same transaction and therefore, the mere
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absence of the words "so connected together as to
form" in cls. (a), (c) (sic) and (d) of S. 239
would make little difference."
23. We may also note that Full Bench decision of
this court in D. K. Chandra’s case on which Mr.
Solkar has placed reliance has been considered and
distinguished by the Supreme Court in this case.
24. In Mohan Baitha’s case (supra) the Supreme
Court interpreted Section 220 of the Code and
observed as under:
. "It may be noticed that under Section 220 of the
Code of Criminal Procedure, offences more than one
committed by the same persons could be tried at one
trial, if they can be held to be in one series of
acts, so as to form the same transaction. The
expression "same transaction" from its very nature
is incapable of an exact definition. It is not
intended to be interpreted in any artificial or
technical sense. Common sense and the ordinary use
of language must decide whether on the facts of a
particular case, it can be held to be in one
transaction. It is not possible to enunciate any
comprehensive formula of universal application for
the purpose of determining whether two or more
acts constitute the same transaction. But the
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circumstances of a given case indicatting proximity
of time, unity or proximity of place, continuity of
action and community of purpose or design are the
factors for deciding whether certain acts form
parts of the same transaction or not. Therefore, a
series of acts whether are so connected together as
to form the same transaction is purely a question
of fact to be decided on the aforesaid criteria".
25. The above authoritative pronouncements of the
Supreme Court lay down that, if there is proximity
of time or place or unity of purpose and design or
continuity of action in respect of series of acts
it can be said that the acts form part of the same
transaction. It is not necessary that every one of
these elements must coexist. But connection
between a series of acts is an essential ingredient
for those acts to constitute the same transaction.
26. If these principles are applied to the present
case, we feel that the appellant can be jointly
tried with other accused. The three bomb blasts
took place between 6//12/02 and 13/3/2003. They
occurred within a span of about three months. They
occurred in thickly populated areas. In all the
three cases common people were targeted. The three
blasts prima facie have similar pattern and mode.
In our opinion, a common thread runs through all
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these incidents. Though initially these cases were
registered at different police stations, by office
order dated 12th July, 2003 they were clubbed
together and the investigation was directed to be
conducted under a chief investigating officer. In
our opinion, these incidents are so connected
together as to form part of the same transaction.
27. Besides the accused have been charged with
conspiracy. The criminal conspiracy alleged is to
inter alia commit terrorist acts or to commit
preparatory acts towards terrorist acts to threaten
the unity, integrity, security or sovereignty of
India or to strike terror in the people or section
of the people by aiding and abetting each other to
commit terrorist acts or acts preparatory to
terrorist acts in or around Mumbai by use of bombs,
dynamites, other explosive substances or
inflammable substances, fire arms or other lethal
weapons of hazardous nature in such a manner to
cause death or injuries of persons and to cause
damage or destruction of property and disruption of
services essential to the life of the community.
28. It was argued by Mr. Solkar that there is
hardly any evidence of conspiracy. In order to
satisfy ourselves and in view of the statement made
by Mr. Solkar that this court can have a look at
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the confessional statements, we had a look at them.
At this stage, we are of the prima facie opinion
that the charge of conspiracy is borne out by the
material which is in possession of the police.
29. Once the accused are charged with conspiracy
it is not necessary that the person sought to be
jointly tried must be actual party to the
committing of all offences which are committed in
the course of same transaction. His actual
participation may be only in one or some of the
offences but if there is common concert and
agreement which constitute the conspiracy it serves
to unify the acts done in pursuance thereof In such
cases all the acts of all the persons must be held
to have been done in the course of one and the same
transaction.
30. Viewed in the light of the above judgments of
the Supreme Court, we have no manner of doubt that
the present accused can be tried jointly with
others. In our opinion the case would clearly be
covered by Section 223(d) of the Code. The learned
counsel urged that the reliance placed by the
Special Court on Section 184 and Section 219 of the
Code is wholly misplaced. We are of the opinion
that the ultimate view taken by the Special Court
that the appellant can be tried jointly is correct,
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hence we need not delve into this issue. In the
circumstances the appeal is dismissed.
31. At this stage Mr. Solkar seeks extension of
stay which is already granted by this court Mr.
Borulkar, learned PP vehemently opposes this. He
says that this is a tactic employed by the
appellant to delay disposal of the case. In the
facts and circumstances of the case, we deem it fit
to extend the stay by a period of further two
weeks.
(SMT. RANJANA DESAI, J.)
(ANOOP V. MOHTA, J.)
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