8w2618-09 1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2618 OF 2009 1. Noorulhudha Samsudoha, 2. Shabbir Ahmad Masiullah, & 3. Mohammed Jahid Abdul Majeed Ansari. .. Petitioners. Vs. Shri Rajwardhan, IPS, Office of Intelligence Bureau (IB), Mumbai and 4 others. .. Respondents. .... Mr.Amin Solkar, Advocate a/w. Mr.Jalil Ahmed a/w. Mr.Shaikh Yakub, Advocates for the Petitioners. Mr.A.P. Mundargi, Senior Counsel a/w. Mr.P.A. Pol, Public Prosecutor a/w. Mr.Y.M. Nakhawa, A.P.P., for the State. Mr.D.N. Salvi, Counsel a/w. Mr.A.S. Gadkari, Counsel for Respondent Nos.1 & 4-CBI. .... CORAM : D.B.BHOSALE & A.R.JOSHI, JJ. DATED : 6TH APRIL, 2010 P.C. 1. Heard Mr.Solkar, learned Counsel for the petitioners, Mr.Mundargi, learned Senior Counsel for the State and Mr.Salvi, learned Counsel for the CBI. 2. In this writ petition, the petitioners have made the following prayers:- "(a) To issue a writ of Mandamus or any other appropriate writ, order or direction calling upon the 8w2618-09 2 Respondents to submit to the scrutiny of this Hon'ble Court as to what investigation have they done pursuant to the disclosures made by a co-accused Abrar in his affidavit, dated 18.4.2009. (b) To issue a writ of Mandamus or any other appropriate writ, order or direction calling upon Respondent No.4 to submit to the scrutiny of this Hon'ble Court as to what investigation have they done pursuant to the transfer of investigation to them since 21.12.2006; (c) To issue a writ of Mandamus or any other appropriate writ, order or direction calling upon Respondent No.1 to submit to the scrutiny of this Hon'ble Court as to what investigation have they done into the death of Shelke in custody two after the Malegaon blast on 10.9.2006; (d) To direct further investigation by transferring both the Malegaon bomb blast cases dated 8.9.2006 and 29.9.2008 from ATS, Maharashtra, to a Special Investigation Team (SIT) constituted by this Hon'ble Court and further direct the said constituted SIT to periodically submit a report on the progress of investigation before this Hon'ble Court; (e) To quash the charge-sheet as against the Petitioners and order their discharge from MCOC Spl. 8w2618-09 3 Case No.23 of 2006, pending on the file of the MCOC Spl. Judge, Mumbai;" 3. Though the petitioners have made the aforesaid prayers, Mr.Solkar, learned Counsel for the petitioners addressed the Court on prayers (a) & (b) only. 4. The petitioners are the accused in ATS police station C.R. No.7 of 2006. In this crime, 14 persons are shown as accused, out of which 9 have already been arrested and rest are shown as absconding. This crime pertains to serial bomb blasts that took place at Malegaon in September, 2006. 5. This Court is informed that an initial investigation was carried out by ATS, Maharashtra and they filed a chargesheet on 21st December, 2006. Thereafter, further investigation was handed over to CBI on 22nd December, 2006. The CBI, accordingly, carried out the further investigation and filed supplementary chargesheet on 11.2.2010. It is against this backdrop, the petitioners have made prayers (a) & (b) in the petition. 6. Mr.Solkar, learned Counsel for the petitioners at the outset invited our attention to the affidavit dated 18th April, 2009 of one Abrar Ahmad Gulam Ahmad, a co-accused in the case, and submitted that in this affidavit he has disclosed the facts which 8w2618-09 4 according to him have taken place prior to filing of the first chargesheet. He has also stated about the circumstances in which he was impleaded as accused in the case. According to Mr.Solkar, the information disclosed by the co-accused Abrar deserves to be further investigated by the Special Investigation Team (SIT). In this affidavit, as submitted by Mr.Solkar, the co-accused has also disclosed that there is co-relation between the first blast occurred at Malegaon on 8.9.2006 and the second blast dated 29.9.2008, and in view thereof he submits that prayers (a) & (b) in the Petition deserve to be granted. 7. We have perused the affidavit dated 18.4.2009. This affidavit is filed by the co-accused Abrar Ahmad Gulam Ahmad. In the affidavit he has stated absolutely new story which is inconsistent with the prosecution case, based on the investigation carried out so far, including the statement of Abrar as an approver. It appears that after following the due procedure contemplated by the provisions of the Code of Criminal Procedure, the prayer of this co-accused to declare him as an approver has been granted. Mr.Mundargi, learned Senior Counsel for the State in fact placed before us the orders passed by the Special Court showing that the due procedure was followed and the prayer of coaccused Abrar 8w2618-09 5 Ahmad Gulam Ahmad made to the Court to tender pardon has been allowed after considering his statement that he is ready to make voluntary statement as a witness during trial. 8. Our attention was also invited to the order passed by this Court dated 19.7.2007 in O.S. Civil Writ Petition No.1136 of 2007, so also to the order passed by the Supreme Court dated 29.2.2008 in SLP (Civil) No.15962/2007 arising from the aforesaid judgment of the High Court dated 19.7.2007. 9. It appears that Writ Petition No.1136 of 2007 was filed by the three accused in this case, including petitioner No.2 in the present writ petition, challenging the constitutional validity of Section 2(1)(e) of the Maharashtra Control of Organized Crime Act, 1999 which refers to insurgency. The writ petition was ultimately dismissed by the judgment and order dated 19.7.2007. The Supreme Court in the SLP, filed against this order, granted leave and stayed the further proceeding before the trial Court. In view thereof, the trial Court could not proceed with the matter. 10. It is against this backdrop, we have considered the submissions advanced by Mr.Solkar, learned Counsel for the petitioners and also perused the affidavit dated 18.4.2009. We find it extremely difficult to issue any directions, at this stage, on 8w2618-09 6 the basis of the affidavit of the co-accused, whose prayer for tendering pardon has been allowed by the Special Court considering his statement that he was ready to make voluntary statement as a witness during the trial. It is not possible, at this stage, to appreciate whether the contents of the affidavit are correct or his earlier stand is correct. The contents of the affidavit can very well be considered and appreciated by the trial Court when the trial Court would proceed with the case. In these circumstances, we are not inclined to entertain the prayers (a) and (b) made in the writ petition. However, we keep the option open to the petitioners to make similar prayers when the trial proceeds. The Special Court has powers to consider such prayers and pass appropriate orders for further inquiry/investigation under Section 173(8) of the Cr.P.C. With these observations, the writ petition is disposed of. (A.R.JOSHI,J.) (D.B.BHOSALE,J.)