1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Criminal Application No.385 of 2010 In Criminal Appeal No.1324 of 2004 Mohammed Yaqub Abdul Majid Appellant (Org. Accused No.13) Vs. State of Maharashtra Respondent Mr.Majeed Memon with Mr.Subhash Kanse and Mr.Parvez Memon for applicant. Mr.J.P.Yagnik, APP for State. CORAM: B. H. MARLAPALLE & MRS.MRIDULA BHATKAR, JJ. May 6, 2010. P.C. 1. We have heard Mr.Memon, the learned counsel for the applicant (accused no.13) and appellant in Criminal Appeal No.1324 of 2004. This is an application for being released on bail during the pendency of Criminal Appeal No.1324 of 2004. The application has been opposed by Mr.Yagnik, 2 the learned APP. 2. It is not in dispute that the accused was arrested on 1st March 1998, he was an under trial prisoner till the order of conviction and sentence was pronounced on 9/7/2004 and which is a subject matter of challenge in Criminal Appeal No.1324 of 2004. The applicant did not apply for being released on bail at any time earlier to this application, though some other co-accused applied for bail and their bail applications were rejected on merits. 3. The applicant has been convicted and sentenced to suffer imprisonment for life for the offences punishable under Section 120-B, Section 302 read with Section 120-B and Section 150(2) of the Indian Railways Act read with Section 120-B of IPC. He has also been sentenced to suffer imprisonment for ten years for the offence punishable under Section 304 read with Section 120-B, he has been sentenced to suffer RI for ten years for committing an offence punishable under Section 307 read with Section 120-B, sentenced to suffer seven years RI for the offence punishable punishable under Section 326 3 read with Section 120-B, sentenced to suffer RI for three years for the offence punishable under Section 324 read with Section 120-B, sentenced to suffer RI for seven years for the offence punishable under Section 435 read with Section 120-B, sentenced to suffer RI for five years for the offence punishable under Section 151 of the Indian Railways Act, 1989 read with Section 120-B, sentenced to suffer RI for ten years for the offence punishable under Section 4 of the Prevention of Damage to Public Property Act, 1984 read with Section 120-B of IPC, sentenced to suffer RI for five years for the offence punishable under Section 435 read with Section 34 of IPC, in relation to the blast at Jama Masjid on 28/8/1997. As per Clause 19 of the operative part of the order of conviction and sentence, the sentences awarded to the applicant have been directed to run consecutively i.e. one after the other except the sentence of imprisonment for life. 4. He has been under imprisonment from 1/3/1998 till this date i.e. more than 12 years. As per the Rules he was released on parole leave from time to time and he has surrendered on expiry of the said leave or the extended leave and he has followed the conditions set out while granting such leave. 4 5. The prosecution in support of its case against the applicant has mainly relied upon the testimony of two witnesses i.e. PW 6 – Deepak Narottamdas Sheth and PW 42 – Sanjay Ramsingh Chouhan. With the assistance of both the parties we have gone through the depositions of these two witnesses. PW 6 could not be cross-examined by the learned counsel for the applicant as he was absent. However, an application at Exhibit 113 was submitted before the trial Court on 11th March 2003 seeking permission to cross-examine PW 6 but the said application was rejected on 3/6/2003. His statement under Section 313 of Cr.P.C. was recorded on 2nd August 2003 and PW 42 stepped in the witness box thereafter on 25/9/2003. Though he was identified by PW 6 before the Court in connection with the blast in Jama Masjid on 28/8/1997, the test identification parade was held on 25th March 1998 i.e. after about seven months. He was arrested on 1st March 1998. 6. As per the roaster published and effective from 7th June 2010, the Criminal Appeals are to be taken up for final hearing chronologically. As of now we have started with Criminal Appeals (in jail) of the year 2002 and Criminal Appeals (on bail) of the year 1991. We are hearing Criminal 5 Appeals (in jail) for three days in a week and Criminal Appeals (on bail) for two days in a week. Having regard to the number of Appeals (in jail) pending for the year 2002, Criminal Appeal No.1324 of 2002 filed by the present applicant along with the connected appeals filed by the co-accused who are in jail, is not likely to be listed for final hearing till 31st August 2010. The accused was released on parole leave which was extended for sixty days and he surrendered on 1st May 2010. This application was amended with an additional prayer to release him on temporary bail in case the appeal was likely to be listed for final hearing within a specific period. The prayer for temporary bail was also opposed on the ground that it would set a wrong precedent. The applicant claims that he has to attend to his ailing mother and he has no antecedents of any criminal record prior to the bomb blasts which are the subject matter of the impugned order of conviction and sentence and he has undergone imprisonment for more than 12 years. 7. Having regard to all the circumstances and the evidence relied upon by the prosecution of the two main witnesses i.e. PW 6 and PW 42, we are satisfied that the applicant deserves to be released on bail with certain conditions. 6 8. Hence we allow this application and direct the applicant to be released on bail in the sum of Rs.15,000/- with one solvent surety in the like amount, unless required in some other case, forthwith, on the following conditions: (i) He shall report to the nearest police station i.e. Vakola police station on every day between 9.30 a.m. to 11.30 a.m. during the pendency of Criminal Appeal No.1324 of 2004. In case he fails to report to the police station on more than two occasions consecutively or Criminal Appeal No.1324 of 2004 remains pending for any reason attributable to the applicant, the bail so granted, shall stand cancelled. (ii) He shall not leave the limits of Greater Mumbai Municipal Corporation till his appeal is decided, without the leave of the Court. (iii) The applicant shall surrender his passport, if he has one, to the Vakola Police Station forthwith. (MRS.MRIDULA BHATKAR, J.) (B. H. MARLAPALLE, J.)