Full Judgment Text
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CASE NO.:
Appeal (crl.) 904 of 2007
PETITIONER:
Maulana Naseeruddin Mohd. Haneefuddin
RESPONDENT:
State of Gujarat
DATE OF JUDGMENT: 17/07/2007
BENCH:
Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NO. 904 OF 2007
(Arising out of SLP (Crl.) No.2882 of 2006)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order passed by a
Division Bench of the Gujarat High Court dismissing the
criminal Appeal filed by the appellant. The said appeal related
to the rejection of prayer for bail in connection with Crime
Register No.I-6 of 2003 registered with DCB (Crime Branch)
Police Station, Ahmedabad.
3. Factual position in a nutshell is as follows:
An FIR was lodged on 4.4.2003 with DCB Police Station,
Ahmedabad, alleging that a conspiracy was hatched by Mufti
Sufiyan and Rasulkhan Party at Ahmedabad and Hyderabad
to commit murder of Hindu leaders through boys by imparting
them training in arms in Pakistan. The complaint was filed for
the alleged commission of offences punishable under Sections
120(B), 121, 121(A), 122, 123 of the Indian Penal Code, 1860
(in short ’IPC’) and Sections 25(1) (b),(c), 27 and 29 of the
Arms Act, 1959 (in short ’Arms Act’). Thereafter on 19.4.2003,
in pursuance of report of police Inspector, Mr. M.M. Vaghela,
Sections 3(1)ab, 3(3), 4, 20, 2l(2)b, 22 (3) (a) (b) of Prevention of
Terrorism Act, 2002 (in short ’POTA’) were added. The charge
sheet was filed in POTA Court qua the co-accused on
10.9.2003 wherein 39 accused were shown as arrested and 43
accused as absconding. Confessional statements (28 in
number) were recorded during the remand period and
statements of 43 witnesses were taken. On 21.1.2004,
supplementary charge sheet was filed showing 8 accused
including 7 absconding accused of first charge sheet as
arrested and 7 new accused were named as wanted and 5
statements under Section 164 of Code of Criminal Procedure,
1973 (in short ’Cr.P.C.’) were recorded and confessional
statements of 8 accused were attached. The appellant filed
Special Criminal Application No.377 of 2004 in the High Court
for quashing of proceedings which, according to the appellant
is pending till date. The appellant was released on bail in
another offence at Hyderabad on health ground. Thereafter on
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30.10.2004 he was arrested in connection with the present
offence by the Gujarat Police. He was produced before Special
POTA Court on 2.11.2004 and was remanded till 9.11.2004.
Request for further remand was rejected and the appellant
was sent to judicial custody. Charge sheet qua the appellant
was filed in Special POTA Court on 27.1.2005. The appellant
moved an application for bail being Crl. Misc. Appln. No.762 of
2005. However, it was rejected by the learned Special (POTA)
Judge, vide order dated 24.5.2005. Questioning the same,
appeal was filed before the High Court.
4. Before the High Court, it was contended that there is no
evidence against the present appellant except the alleged
confessional statement recorded on 7.11.2004 by the DCP.
The confessional statement, it was contended, is
unsustainable in law and it was neither in the language
known to the appellant nor was it in his hand writing. The
confessional statement was recorded in Hindi. In any event,
the confessional statement was retracted by the appellant
which goes to show that the said confessional statement is
concocted with the sole object to involve the appellant falsely
in the offence and hence no reliance should be placed on it.
The appellant never provoked or instigated any youth to go to
Pakistan for Jihad training. The prime accused have not
stated in their confessional statements of having been inspired
by the speeches of the appellant and reference to the appellant
was not done by any witness. During the course of police
custody and remand no incriminating articles were recovered
by the investigating agency. Serious acts in the aftermath of
Godhra was done by the Rauf and not by the appellant and in
the absence of any prima facie material there was no basis for
keeping him in custody.
5. The stand of the State on the other hand was that there
is a confessional statement of the accused recorded under
Section 32 of POTA. It is the appellant who inspired young
boys to take Jihad training in Pakistan. There is nothing on
record to indicate that there was any coercion for giving the
confessional statement. The belated retraction is nothing but
afterthought. It was not done within the time stipulated and
therefore the appellant is not entitled to be released on bail.
6. The High Court found that the learned special Court had
elaborately dealt with various aspects of the case relating to
appellant. During the course of investigation confessional
statement was recorded by DCP, an authorized officer under
Section 32 of the POTA which is part of the charge sheet. The
same was retracted after about 40 days by sending letter to
the Special POTA Court through the jail authorities.
According to the High Court even if the confessional statement
recorded under Section 32 was retracted, same can be
considered as a piece of evidence at the time of deciding the
bail application. Further the retraction was not done within
the stipulated time. The High Court was of the view that the
learned Special Court was justified in refusing the bail
application.
7. The stands taken before the High Court were reiterated
before this Court. It was submitted by learned counsel for the
appellant that the FIR relates to the incidents allegedly taking
place between the period from April, 2002 to April, 2003.
8. In the FIR name of the present appellant-Maulana
Naseeruddin was not indicated. Charge sheet was filed before
the POTA Court on 10.9.2003, where names of 82 persons
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were indicated; out of them 39 have been arrested and 43 were
stated to be absconders. On 28th October, 2003 confessional
statements were recorded during appellant’s remand and 43
witnesses were examined under Section 164 of the Cr.P.C. The
appellant was arrested in terms of Section 151 Cr.P.C. and
was granted bail in October, 2004. On 21.1.2004 a
supplementary charge sheet was filed. Appellant’s name was
shown in Column 2 as accused No.40 as an absconded
accused in addition to those who were originally shown as
absconders. The confessional statement was purportedly
recorded on 7.11.2004 in Hindi. In between, several
applications had been filed but there is no mention about the
then so called retraction of confessional statement. On
27.1.2005, additional charge sheet had been filed.
9. It was further submitted that on retraction confession
cannot be treated as a relevant substantial evidence. Further,
the medical records and documents were not looked into.
10. Learned counsel for the State on the other hand
submitted that initially there was a petition filed under Section
482 of Cr.P.C. before the Gujarat High Court and one SLP had
also been filed and the same was subsequently withdrawn.
The trial court’s records have been sent back and the trial has
commenced on 18.1.2006.
11. It is to be noted that the Special POTA Court had directed
the jail authority to refer to the appellant to Civil Hospital and
on advice of the expert to get him examined and if required,
admit him to the Civil Hospital for the period as may be
prescribed by doctors. The experts have expressed the view
that he can be treated as an outdoor patient by examining him
at the Civil Hospital.
12. It is no doubt true that there is no time statutorily fixed
during which the confessional statement, if any, can be
retracted; but it has to be done within a reasonable time.
13. Considering the various factual aspects highlighted by
the trial Court and the High Court, we do not think this to be
a fit case where bail can be granted to the appellant.
14. Order of the learned Special Court, POTA as affirmed by
the High Court cannot be faulted and no interference is called
for.
15. Accordingly, the appeal is dismissed. However, it would
be in the interest of all concerned if the trial is completed
expeditiously.