cri-appa-730-10 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 730 OF 2010 IN CRIMINAL APPEAL NO. 115 OF 2010 Anwar Ali Javed Ali Khan ..Applicant Vs. The State of Maharashtra ..Respondent .... Mr. Sushan Kanjuraman Adv. for applicant Mr. V.B.Konde-Deshmukh APP for State .... CORAM : SMT.RANJANA DESAI AND SMT.V.K.TAHILRAMANI, JJ. DATE : JULY 14, 2010 ORAL ORDER [PER V.K.TAHILRAMANI,J.]: 1 The applicant-original accused no.9 is facing prosecution in POTA Case No. 2 of 2003 which is pending before the Special Court, constituted under POTA 2002 for Greater Bombay. The applicant preferred application Exh. 82 for releasing him on bail before the Special Court. The said application came to be rejected by order dated 1 cri-appa-730-10 29.9.2009. 2 Being aggrieved by the said order dated 29.9.2010 the applicant preferred Criminal Appeal (Bail) No.70 of 2009 before this Court. By order dated 5.4.2010 this Court dismissed the said Appeal. Now, the applicant has preferred this application praying therein that the observations appearing in para no.9 of the said order dated 5.4.2010 be expunged. According to the applicant, the said observations of the said order are incorrect observations and hence, they may be deleted/expunged. The said observations are as under: “The Appellant tried to flee away, but it was his advocate who produced the Appellant before the police. ” 3 We have heard Mr. Kanjuraman, the learned advocate for the applicant and Mr. V.B.Konde-Deshmukh, the learned APP for the State. 4 The applicant had preferred an application for bail before the Special Court. While rejecting the said application, the Special Court in paragraph 8 of its order dated 29.9.2009 has observed as under: 2 cri-appa-730-10 “During the course of investigation when the name of the applicant was disclosed in the involvement of the offence at that time, applicant tried to flee away, but it was his Advocate who produced the applicant before the police and thereafter, he was arrested on 11.5.2003. It is therefore, submitted that there is every possibility that applicant may abscond if he is released on bail. ” 5 On perusal of the Appeal Memo wherein the order dated 29.9.2009 came to be challenged before us, we did not find any specific challenge raised in the grounds in the appeal that the said observations are incorrect or erroneous. If the said observations were incorrect, the appellant-applicant ought to have specifically challenged it before this Court and should have brought it to our notice, however, that was not done. Moreover, if the observations made by the learned Special Judge are incorrect, the applicant ought to have got the same corrected from the Special Court. Though the order is dated 29.9.2009 no attempt has been made by the applicant to go before the Special Court to get the observations corrected/deleted or expunged. Even at the time of hearing the matter, no such oral submissions were made before us that 3 cri-appa-730-10 the observations in para 8 of the order of the Special Court are erroneous. Looking to all these facts, we are of the opinion that, at this belated stage, the prayer of the applicant, cannot be entertained. 6 However, in order to doubly ascertain that the observations made by the learned Special Judge viz. “during the course of investigation when the name of the appellant was disclosed in the involvement of the offence at that time, the appellant tried to flee away, but it was his advocate who produced the appellant before the police and thereafter he was arrested on 11.5.2003 ” are correct or not, we had called for the case diary of the case. The learned APP has produced before us the case diary from 3.4.2003 to 11.5.2003 i.e. the date on which the applicant came to be arrested. The Crime Report from the Case Diary from 3.4.2010 onwards shows that “the applicant was wanted in the case ”. In fact, the case diary shows that one of the co-accused has stated that the applicant is resident of Pune and hence, Police Inspector Joshi, DCB CID was directed to visit to Pune along with staff for collecting information and details of the applicant. The case diary entries including entry dated 28.4.2003 shows that despite efforts, the applicant could not be traced. The position for the next ten days is 4 cri-appa-730-10 also the same. The entries in the case diary thereafter show that one advocate Shri. Sayeed from Vanawadi, Pune, came to the office of DCB CID along with the applicant and on 11.5.2003 the applicant came to be arrested by the police. Thus, we find that there was sufficient material before the Special Judge to make the observations in paragraph 8 of his order dated 29.9.2009 and in view of the above, no case is made out to entertain the present application for expunging the said remarks made in our dated 5.4.2010 in paragraph 9. 7 We may also state that even before us, the learned advocate Mr. Kanjuraman stated that the applicant went to the office of DCB CID office along with advocate Shri. Sayeed and surrendered and he came to be arrested on 11.5.2003. However, he contended that this shows that the applicant was not absconding but on being informed that he was wanted by police, he on his own surrendered before the police. He expressed an apprehension that if it is observed that the applicant was absconding, it would affect his case during the trial. In view of the apprehension expressed, we clarify that the trial Court shall not be influenced by any observations in this order regarding abscondance while deciding the trial and after evidence is led the trial Court shall 5 cri-appa-730-10 come to its own conclusion regarding abscondance. 8 Application is rejected. [SMT. RANJANA DESAI, J.] [ SMT. V.K.TAHILRAMANI, J.] 6