CR.RA/448/2000 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 448 of 2000 with CRIMINAL MISC.APPLICATION NO. 10098 OF 2008 with CRIMINAL MISC.APPLICATION NO.1270 OF 2005 with CRIMINAL MISC.APPLICATION NO.3367 OF 2006 with CRIMINAL MISC.APPLICATION NO.5416 OF 2001 For Approval and Signature: HONOURABLE MR.JUSTICE MD SHAH ========================================================= 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 ? ========================================================= STATE OF GUJARAT,THRO'CENTRAL BUREAU OF INVESTIGATION - Applicant(s) Versus RAVJI MANUBHAI PAWAR - Respondent(s) ========================================================= Appearance : MR YN RAVANI for Applicant(s) : 1, MR ZUBIN F BHARDA as amicus curiae for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 10/11/2008 ORAL JUDGMENT 1. Heard learned Counsel Mr.Yogesh Ravani for the petitioner-CBI and learned advocate Mr.Zubin Bharda, CR.RA/448/2000 2/7 JUDGMENT appointed as amicus curiae for the respondent. 2. The Criminal Misc.Application No.10098 of 2008 has been filed in the main Revision Application with a prayer to issue a Letter of Request to the competent authorities for verification of witnesses stationed at Dubai and alternatively, prayed to hear the main Revision Application. Considering the fact that the Revision Application has been lingering for quite a long time, with the consent of the parties, the same is taken up for final disposal today. 3. The main Criminal Revision Application has been preferred before this Court, challenging the judgment and order passed by the learned Sessions Judge, Valsad at Navsari, below Application Exh.207 in Sessions Case No. 37 of 1992 by which the petitioner- CBI had prayed to the Special Court for examination of 12 witnesses stationed at Dubai by issuing commission as per the provisions of Sections 284 to 290 of the Code of Criminal Procedure, 1973 ('Cr.PC' for short). The prayer of the petitioner-CBI was in view of the treaty between India and United Arab Emirates ('UAE' for short) of mutual agreement to cooperate in the criminal matter. The learned Sessions Court has rejected the said application on 21.10.2000. 4. The facts, in nutshell, leading to filing of the present Revision Application are as under: CR.RA/448/2000 3/7 JUDGMENT An incident of murder of five family members of Indian community at Dubai had taken place and in connection with the said incident, the respondent, an Indian origin, was arrested by the police authorities in India as after the incident, he had flown to India. As the offence was committed outside India, it was investigated by the petitioner-CBI. As per Mutual Legal Assistance Treaty between India and the UAE in 1993 and with the help of UAE authorities the investigation was conducted. However, during trial Dubai Government officials who were involved in the investigation in Dubai were not examined. At the time of hearing of the Revision Application before this Court, petitioner-CBI was directed to verify the whereabouts and availability of those witnesses. In view of this fact, Interpol, New Delhi requested Interpol, Abu Dhabi and also sent reminders on various dates. The Director of CBI also requested the Head of NCB, Abu Dhabi for necessary assistance in this behalf and a copy of the letter was also sent to the Ambassador, Embassy of India, Abu Dhabi to follow up the matter with the concerned UAE authorities. Later on, in a significant development, the authorities at Abu Dhabi vide their letter dated 14.4.2008 have agreed to provide required data about the present whereabouts of these witnesses and have requested CBI to forward an official request for judicial assistance through diplomatic channels. CR.RA/448/2000 4/7 JUDGMENT Under such circumstances, Letter of Request is required to be issued as per provisions of Mutual Legal Assistance Treaty between Government of India and UAE. While admitting the Revision, this Court had granted stay of the further proceedings of the trial. The Letter of Request is required to be issued by this Court seeking details about availability and whereabouts of the witnesses who are required to be examined through the Commission and the same will be routed through Diplomatic Channel as several witnesses are sought to be examined by the petitioner-CBI. 5. Learned Counsel Mr.Yogesh Ravani appearing for the petitioner-CBI has pressed the Revision Application on the aspect that the witnesses sought to have been examined are important witnesses and the officers of the Government of UAE. It is a case of offence wherein allegation of five murders committed by the respondent-accused. According to his submission, the reason assigned by the learned Judge for not granting the prayer for appointment of commission was erroneous and contrary to the provisions of Section 285 of the Cr.PC. Mr.Ravani further submitted that the application given by the petitioner-CBI for appointment of commission to the Sessions Court was required to be granted in view of the fact that the Government of UAE has shown its willingness to cooperate in trial for examination of CR.RA/448/2000 5/7 JUDGMENT witnesses and examination of these witnesses is very essential to bring out the truth. Mr.Ravani has further submitted that on issuance of summons, the Investigating agency is ready to proceed with the trial as early as possible. 6. As against that, learned advocate Mr.Bharda appearing as amicus curiae submitted that the Special Court has assigned the correct reasoning. The trial had prolonged for almost eight years and the petitioner-CBI has failed in providing the addresses of the witnesses and the accused is in jail since long and his bail application is ordered to be heard after deciding the present Revision Application. 7. I have carefully considered the rival submissions and given my thoughtful consideration. In my view, the witnesses who are stationed at Dubai are required to be examined considering the gravity of the offence. On the other hand, the trial is required to be expedited as the accused is languishing in jail since long. If the Investigating agency is not given an opportunity to examine the witnesses stationed at Dubai, there is likelihood of occurrence of serious prejudice to the Investigating Agency in proving its case. The reasons assigned by the Special Court while interpreting Section 285 seem to be incorrect wherein it has been mentioned that there is a prayer of prosecution that this Court should hold its sitting at Dubai, which cannot be granted. CR.RA/448/2000 6/7 JUDGMENT 8. Section 285(3) of Cr.PC provides for appointment of commission for examination of witnesses where there is arrangement between the Central Government and the Government of such country or place for taking the evidence of witnesses in relation to criminal matters as the Central Government may, by notification, prescribes in this behalf. In my view, considering the gravity of the offence and in view of the fact that there is an arrangement between Government of India and UAE by way of treaty, the order ought to have been passed under Section 285 for appointment of commission by the Special Court. Even considering the gravity of the offence, the reasons assigned by the Sessions Court, on the ground of delay is incorrect. The Investigating Agency could not be deprived of examination of witnesses, more particularly, witnesses who are stationed at Dubai as it was not within the control of he Investigating Agency to bring them before the Court for deposition. However, considering the fact that the accused is languishing in jail since long, the entire proceedings are required to be concluded in a time- bound schedule. 9. In view of the above facts, I think it fit to give the following directions by setting aside the order of the Sessions Court: (a) The Investigating Agency will take necessary steps to give addresses and whereabouts of all the witnesses within thirty days from the date CR.RA/448/2000 7/7 JUDGMENT of receipt of this order to the Special Court. (b) The Special Court will pass appropriate orders on receipt of whereabouts and addresses of witnesses stationed at Dubai for issuance of notification to appoint commission under Section 285 of Cr.PC. (c) The Commission so appointed will complete its recording of evidence within two months thereafter; (d) The Special Court will complete the trial within six months with regard to the subject matter and not later than 1st May 2009. 10. With the above observations and directions, the Revision Application is allowed to the aforesaid extent and the rule is made absolute accordingly. Notice issued in all the other connected applications are discharged. (M.D.Shah, J.) Sreeram.