CR.A/177020/2008 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1770 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA Sd/- HONOURABLE MR.JUSTICE DN PATEL Sd/- ======================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ======================================================= MOHAMMEDYUNUSKHAN YAKUBKHAN PATHAN - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ======================================================= Appearance : MR LR PATHAN for Appellant(s) : 1, MR JM PANCHAL SPL. PP for Opponent(s) : 1, ======================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE DN PATEL CR.A/177020/2008 2/8 JUDGMENT Date : 10/09/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) 1. The present Criminal Appeal being successive bail application under Section 34 of the Prevention of Terrorism Act has been preferred by the appellant- original accused viz., Mohammedyunuskhan Yakubkhan Pathan for releasing him on regular bail in connection with DCB Crime Police Station, Ahmedabad I-C.R.No.6/2003 (POTA Case No.2/2004). Prior to that also, the appellant and other co-accused have filed various bail applications either before the trial Court or before this Court or before the Hon'ble Apex Court, which are 12 in number. This is one more attempt made by him. 2. Heard learned counsel appearing for the respective parties and perused the records. 3. Learned counsel for the appellant, Mr.Pathan has drawn our attention towards the order passed by the Hon'ble Supreme Court passed in S.L.P. (Cri.) No.754/2007 arising out of Criminal Appeal No.757/2007, more particularly, paragraph no.21 of the said order, wherein the Hon'ble Supreme Court has observed as under :- CR.A/177020/2008 3/8 JUDGMENT “In this view of the matter, we are of the opinion that the interest of justice shall be subserved if the learned Designated Judge is directed to conclude the trial as expeditiously as possible and preferably within six months from the date of communication of this order. With this observation, the appeals are dismissed.” 4. Learned counsel, Mr.Pathan has argued that in the aforesaid order, direction was given to complete the trial within six months, however, though six months have been passed, the trial is not yet completed. Over and above this, it has been argued that the present appellant has been arrested later on after a period of one year and, therefore, supplementary chargesheet has been submitted before the Court against the present appellant, which came to be numbered as POTA Case No.2/2004. It is argued that except confessional statements of the appellant as well as co-accused, there is no material evidence, which connect the appellant- accused with the crime in question. It is also argued that most of the important witnesses have been examined and, therefore, it is requested that the appellant may be released on bail. 5. Learned Special P.P., Mr.Panchal has drawn our CR.A/177020/2008 4/8 JUDGMENT attention that here in this case, the prosecution has already examined about 168 witnesses and now approximately 30-35 witnesses are to be examined and the Court is also taking care to deal with the matter as early as possible, for which, the concerned Judge is visiting and conducting the trial in the Central Jail itself and, hence, the trial will be completed as early as possible. Mr.Panchal has also drawn our attention towards various applications filed by the present appellant as well as other co-accused before the trial court, this Court as well as before the Hon'ble Supreme Court namely Criminal Misc. Application No.1022/2004, SLP No.6171/2004, Criminal Misc. Application No.582/2007, Criminal Misc. Application No.716/2007, Criminal Appeal No.1553/2005, Criminal Appeal No.1681/2005, Criminal Appeal No.1662/2006, Criminal Appeal No.1676/2006, Criminal Appeal No.716/2007, Criminal Appeal No.741/2007, Criminal Appeal No.757/2007 and Criminal Appeal No.758/2007. It is also argued by Mr.Panchal that it is a serious offence and the role of the present appellant has been fully established and to connect him with the crime in question, his own confessional statement along with the confessional statement of the co-accused are on record. It is, CR.A/177020/2008 5/8 JUDGMENT therefore, submitted that looking to the seriousness of the offence, the bail is required to be rejected. 6. We have carefully gone through the confessional statement of the present appellant recorded under Section 32 of the POTA Act. 7. We have considered the Judgment delivered by the Hon'ble Supreme Court in the case of Afzalkhan @ Babu Murthuzakhan Pathan V/s. State of Gujarat reported in 2007 (3) GLR 2283, which is equivalent to (2007) 3 SCC (Cri) 563 arising out of the same Crime Register Number i.e. DCB Crime Police Station, Ahmedabad I-C.R.No.6/2003, wherein it has held by the Hon'ble Supreme Court in the case of co-accused that this is a very serious offence, which affects the society at large targeting the people, wherein foreign fund is involved and ultimately direction was given to dispose of Criminal Case by the Trial Court within a period of six months. It has been further held in paragraph nos.20 and 21 as under :- “20. In a case of this nature, it is very difficult to say at this stage as to whether they are parties to the larger conspiracy or not. In the evidence, it is alleged that one of the appellants had gone for training to CR.A/177020/2008 6/8 JUDGMENT Pakistan, another had provided money and he had been in possession of a large quantity of arms. A strong prima facie case has been made out against the appellants herein. Their release at this juncture may hamper the smooth conduct of trial since many witnesses are ye to be examined. One of the appellants hails from a different State. It may be difficulty to secure his presence, if released on bail at this crucial juncture. 21. In this view of the matter, we are of the opinion that the interest of justice shall be subserved if the learned Designated Judge is directed to conclude the trial as expeditiously as possible and preferably within six months from the date of communication of this order. With this observation, the appeals are dismissed.” 8. We have also considered the judgment delivered by the Hon'ble Supreme Court in the case of Devender Pal Singh V/s. State N.C.T. of Delhi & Anr. reported in AIR 2002 SC 1661, wherein it has been held by the Hon'ble Supreme Court that the confessional statement is a substantial piece of evidence. In the facts of the present case, the confessional statement of the present appellant is on record and thus there is a prima-facie case against the present appellant and the trial Court is proceeding with the matter on day-to-day basis. CR.A/177020/2008 7/8 JUDGMENT 9. For the purpose of deciding this appeal, we have taken into consideration the fact that this is a successive bail application. We are aware that the the successive bail application can be maintainable, but it can be maintainable qua the change in circumstances. Here, in this case, the change in circumstance is that though Hon'ble Apex Court has directed the Court below to complete the trial within stipulated period, it has not been finally disposed of and, therefore, this appeal has been filed. 10. We have also taken into consideration the judgment delivered by the Court below along with the facts provided by the Learned Special P.P., Mr.Panchal, which shows that the Learned Special Court is dealing with the matter on a day-to-day basis by allotting three days in a week, for that, the Judge is regularly going into Central Jail, wherein Court has been created there itself. Over and above this, the Court below has examined approximately 165 witnesses and if we accept the say of the Learned Special P.P. then, only 30-35 witnesses are to be examined. It is required to be noted that most of the witnesses are the Police Officers and they are easily available and, therefore, the trial will be CR.A/177020/2008 8/8 JUDGMENT completed in near future. Thus, prima-facie, there is no delay either on the part of the prosecution or on the part of the Court below in completing the trial because both have tried their level best. Looking to the seriousness of the offence and looking to the number of witnesses, it cannot be completed within stipulated time as directed by the Hon'ble Apex Court, but it is expected that it will be over in near future. 11. In view of the seriousness of the offence and this being successive bail application and in view of the fact that the trial is going on on a day-to-day basis, this Criminal Appeal for bail is required to be rejected and is rejected accordingly. Notice is discharged. Sd/- Sd/- (R.P.DHOLAKIA, J.) (D.N. PATEL, J.) /patil