AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.3090 OF 2009 Sabahuddin Ahmad Shaikh ... Petitioner Vs. The State of Maharashtra & Ors. ... Respondents Mr. Abhaykumar Apte, advocate appointed for the petitioner. Ms. P.H. Kantharia, A.P.P. for the State. CORAM: MRS. RANJANA DESAI & MRS. MRIDULA BHATKAR, JJ. DATED : 22ND JANUARY, 2010. P.C.:- 1. This petition is filed through jail. The petitioner is an accused in Special Case No.175 of 2009 which pertains to the terrorists attack on Mumbai which took place on 26/11/2008. 2, In this petition, the petitioner has made several AJN 2 allegations against learned Judge M.L. Tahliyani, who is conducting the trial. The petitioner has, inter alia, stated that learned Judge is biased against the petitioner; that he has displayed partial attitude towards the petitioner; that he has commented on the petitioner's religion; that he sits in the court late in the evening and thus the petitioner gets late for namaz; that the attitude of learned Judge is negative, discourageous and insulting towards the petitioner; that he leads the witnesses and acts as a public prosecutor; that he does not allow the petitioner to cross-examine the witnesses; that he has a prefixed mind; that he is hyper sensitive and that he tortures the petitioner. 3. We have heard Mr. Apte, learned counsel appearing for the petitioner and Ms. Kantharia, learned A.P.P. appearing for the State. The petition is dated 15/10/2009. The petitioner has quoted instances of 30/6/2009, 19/5/2009, 29/5/2009. 14/5/2009, 12/8/2009 and 12/10/2009. It is not understood as to why if the so-called AJN 3 insulting and objectionable behaviour of learned Judge began as early as 30/6/2009, the petitioner filed this petition as late as 15/10/2009. We are informed by learned A.P.P. that the trial is almost complete and the statements of the accused under Section 313 of the Criminal Procedure Code are being recorded. If the petitioner had any genuine grievance, we feel that he would have come to this court much earlier. We have already dismissed one petition making somewhat similar allegations on the ground that the allegations were not substantiated and that the petition was filed to protract the trial. So far as this petition is concerned, having perused the allegations and having heard the counsel, we are of the same opinion that the petition is aimed at protracting the trial. 4. Two grievances made by the petitioner, however, need to be noted. One is that learned Judge sits late in the court and, therefore, the petitioner is not able to do his namaz on time. We have already expressed and we AJN 4 say it again that namaz, pooja and any other religious rites should not obstruct the court proceedings. The court proceedings must go on. Namaz or pooja can always be done after the court proceedings are over. This does not mean that any disrespect is shown to anybody's religion or religious rites. There has to be some order and discipline in a court of law. This grievance cannot be entertained. 5. The second grievance which also needs to be noted is that during the trial, the petitioner is not provided with paper and pencil to note down points. We had asked learned A.P.P. to take instructions in that behalf. She has submitted letter dated 14/10/2009 addressed by the Sheristedar of the court to the Superintendent of Prison, Arthur Road Prison, Mumbai, which indicates that there is no such order passed by learned Judge that no paper or pencil should be given to any of the prisoners. There is yet another letter sent by the Superintendent of Bombay Central Prison, informing learned Judge that the accused AJN 5 have been told that should they need papers and pencil, they should make an application to learned Judge and if learned Judge permits, they would be supplied with papers and pencil. This letter does indicates that learned Judge must have directed the Superintendent of Bombay Central Prison to inform the prisoners accordingly. 6. Mr. Apte, learned counsel, who is appointed for the petitioner made a serious grievance. He submitted that the accused has every right to make notes of the court proceedings to help his defence. There can be no dispute about this. However, judicial notice can also be taken of the fact that there have been cases where facilities like this, which were given to the prisoners were misused. There are instances where messages are passed out of jail by the prisoners thereby endangering the security of the prison and its inmates. It can also cause danger to the law and order situation outside the prison. A balance has, therefore, to be struck. It is for this reason that in this letter it is stated that the prisoner should make an AJN 6 application to learned Judge if he requires papers and pencil. Learned Judge would then consider the application and pass appropriate order in accordance with law. We feel that if the petitioner wants to make notes, he may apply to learned Judge. Learned Judge may then pass appropriate order thereon. As to what conditions should be put on the petitioner will be left entirely to the discretion of learned Judge who, we are sure, will pass appropriate order striking a balance between the petitioner's rights and the concern of security of the prison and its inmates and security of people in general. Learned Judge may put the necessary conditions such as ensuring that the notes made by the petitioner are checked and then handed over to the defence lawyer. Care will have to be taken to ensure that no messages are sent outside the jail. We make it clear that we are not putting any restrain on the discretionary power of learned Judge. In a given case, if circumstances so demand, he will be entitled to refuse the prayer also considering the serious and sensitive nature of the case. AJN 7 7. The petition is disposed of in the aforestated terms. [MRS. RANJANA DESAI, J.] [MRS. MRIDULA BHATKAR, J.]