1 cri-apeal-498-10 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 498 OF 2010 IN M.C.O.C.SPL.CASE NO. 4 OF 2009 (UNDER SECTION 12 OF M.C.O.C.) Mohammed Zakir Abdul Haque Shaikh ] Aged 27 years Indian Inhabitant ] Occ: Service, Permanent resident of ] Super Tower, 5th floor, ] Thane Road, Bhiwandi, Waza Moholla, ] Thane, Maharashtra (presently lodged ] in Yerawada Central Prison, Pune as ] an under trial prisoner in the above ] matter) ]..Appellant [Ori. Accused no.4] Vs. The State of Maharashtra ] (At the instance of DCB CID Mumbai ] vide there CR No.152 of 2008) ]...Respondent [Ori. Complainant] .... Mr. S.R.Chitnis Senior Advocate for Appellant Ms. U.V.Kejariwal APP for State .... 2 cri-apeal-498-10 CORAM : SMT.RANJANA DESAI AND SMT.V.K.TAHILRAMANI, JJ. DATE OF RESEVING THE JUDGMENT : AUGUST 05, 2010 DATE OF PRONOUNCING THE JUDGMENT : AUGUST 13, 2010 JUDGMENT: [PER SMT.V.K.TAHILRAMANI,J.]: 1 This appeal is directed against the judgment and order dated 26.5.2010 passed by the learned Special Judge, Greater Bombay in discharge application (Exhibit 85) preferred by the appellant in MCOC Special Case No. 4 of 2009. By the said judgment and order, the learned Special Judge rejected the application for discharge, hence, this appeal. 2 The appellant herein is original accused no.4 in Special Case No. 4 of 2009. It pertains to C.R.No. 152 of 2008 of DCB CID Mumbai. The said case is mainly under Sections 295(a), 505(2), 507, 506(ii), 120- B, 121, 122 and 286 of IPC, under Sections 3(1)(ii), 3(2), 3(4) of the Maharashtra Control of Organized Crime Act, 1999 (for short “MCOC Act ”) and under Sections 4 and 5 of the Explosive Substances Act, 1904. 3 cri-apeal-498-10 3 The prosecution case is that some of the accused had made a plan to carry out bomb blasts in Mumbai and other places. Pursuant to the plan, some of the other accused obtained accommodation on rent in Bharuch and Surat. Thereafter, some explosives, ball bearings, bomb timers, chips were brought from Pune to the houses in Bharuch and Surat. Bombs were prepared from this material and timer of 47 hours was set on about 25 bombs and kept at various places including Surat. Thereafter from February, 2005 to September, 2008 bomb blasts were caused by other accused at various places in India. It is the prosecution case that the appellant was asked whether he would go for training to Pakistan in May, 2005. The appellant agreed to go for training in Pakistan. Thereafter, he along with co-accused Mohammad Arif was sent to Bangla Desh and Pakistan VISA was obtained for him and thereafter, he was sent by flight from Dhaka air port to Karachi air port in Pakistan. There they met one person by name Sultan and thereafter, they were taken to the training centre. He obtained training for about 21 days in firing rifle, pistol, automatic rifle, SLR and rocket launcher. They were also taught how to make high and low explosive bombs. After obtaining training the appellant returned back to India. After returning 4 cri-apeal-498-10 back to India, the appellant showed his willingness to participate in conducting bomb blasts. 4 Before we deal with the rival submissions, we must ascertain what is the scope of Section 227 of the Criminal Procedure Code which provides for discharge. Hence, we find it necessary to reproduce Section 227 of Cr.P.C. In several judgments, the Supreme Court has outlined the scope of Section 227 of the Code. We shall refer to a few of them. Section 227 of the Cr.P.C. reads as under: 227. Discharge : If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. 5 In State of Bihar Vs. Ramesh Singh (1977) 4 SCC 39:AIR 1977 SC 2018, while referring to Section 227 of the Code, the Supreme Court observed as under: 5 cri-apeal-498-10 “At that stage, the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of the suspicion cannot take the place of proof of his guilt at the conclusion of the trial. But if at the initial stage, if there is a strong suspicion, which leads the Court to think that there is a ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. ” 6 The Supreme Court in Superintendent & Remembrancer of Legal Affairs, West Bengal Vs. Anil Bhunja and others,: 1979 Cri.L.J. 1390 observed that the standard test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise is not exactly to be applied at the stage of Section 227 or Section 228. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may 6 cri-apeal-498-10 justify the framing of charges against the accused in respect of the commission of that offence. Same principles were reiterated by the Supreme Court in Niranjan Singh Karam Singh Punjabi Vs. Jiendra Bijja and Ors.: 1990 Cri.L.J. 1869. 7 In State of Maharashtra Vs. Priya Sharan Maharaj and Ors. 1997 Cri.L.J. 2248, the Supreme Court again reiterated that at the stage of framing of the charge, the court has to consider the material with a view to finding out if there is ground for presuming that the accused has committed the offence or that there is not sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction. 8 We shall now apply the principles enunciated above to the present case in order to find out whether or not the Court below was justified in dismissing the discharge application filed under Section 227 of the Code. 9 As far as the prosecution case is concerned, reliance is placed by the prosecution on the confessional statements of three co- 7 cri-apeal-498-10 accused i.e. Mohammad Arif, Akbar and Mohammad Sadiq. Co- accused Akbar has stated that some of the accused had made a plan to carry out bomb blasts in Mumbai and other places. Pursuant to the plan, some of the other accused obtained accommodation on rent in Bharuch and Surat. Thereafter, some explosives, ball bearings, bomb timers and chips were brought from Pune to the houses in Bharuch and Surat. Bombs were prepared from this material and timer of 47 hours was set on about 25 bombs and the bombs were kept at various places including in Surat. He has further stated that in July, 2008 the appellant and one other had been sent to him to render help, however, as he had sufficient number of boys these two boys were sent back. 10 Co-accused Mohammad Sadiq has stated that in the year 2004, he had gone to Azamgarh. There, he met Zakir Shaikh (Appellant) along with two others and he was told by Mohammad Arif that Zakir Shaikh and other boys are willing to go to Pakistan for training via Bangladesh. He has stated that in the month of May, 2005, he sent Mohammad Arif and the appellant Zakir Shaikh to Pakistan for training. After receiving training, they returned back in the month of July, 2005. He has further stated that soon thereafter some persons from their 8 cri-apeal-498-10 association caused bomb blasts in Shramjeevi Express and at Sankatmochan Mandir and at Bombay Railway station. Various bomb blasts took place from February, 2005 to September, 2008. 11 The third co-accused Mohammad Arif in his confession has stated that he was told that it was necessary to arrange for some boys to be sent to Pakistan for training for the purpose of Jihad. In May, 2005, he asked the appellant whether he would go for training to Pakistan. The appellant agreed to go for training in Pakistan. Thereafter, the appellant was sent to Bangla Desh and Pakistan VISA was obtained for him and the appellant along with co-accused Mohammad Arif was sent by flight from Dhaka airport to Karachi airport. There they were met by one person by name Sultan and they were taken to the training centre. In Pakistan, the appellant and co-accused obtained training in firing by rifle, pistol, automatic rifle, SLR and rocket launcher. They were also taught to make high and low explosive bombs. Thereafter they returned back to India. After they returned to India some of the persons in their association caused bomb blasts in the Shramjeevi Express and at a railway station. 9 cri-apeal-498-10 12 We have already observed above that co-accused Akbar has stated that he was told by co-accused Riyaz that Mohammad Sadiq and his associate Zakir (appellant) and one other were sent to help him. However, he had enough boys to help him, hence he sent Mohammad Sadiq, Abu Rashid and the present appellant back. From the confession of this co-accused, it is seen that the present appellant had gone to help co-accused Akbar and others in carrying out bomb blasts but as there were already sufficient number of boys, he was sent back. It is also clear that if sufficient boys had not been there, the help of the present appellant would have been taken in carrying out bomb blasts, which help he was willing to render. 13 Thus, from all the three confessional statements of co- accused, it can be seen that the appellant was asked whether he would go for training to Pakistan and he agreed to go for the training. He undertook training which consisted of firing rifle, pistol, automatic rifle, SLR and rocker launcher. He was also taught how to make high and low explosive bombs. Thereafter, he has returned back to India and he offered his services but his services were not availed in carrying out bomb blasts as there was sufficient number of boys. From these 10 cri-apeal-498-10 confessional statements, it becomes clear that the appellant knew that there was a conspiracy to commit offence punishable with death or imprisonment for life because he had undertaken training in making bombs as well as fire arms. The fact that he went to help Akbar but as there was sufficient man power, he was sent back, shows that he had come prepared to carry out the bomb blasts. For an offence of criminal conspiracy to be made out, one of the necessary ingredients is that two or more persons agree to do an illegal act. The agreement to commit an offence itself amounts to the offence of criminal conspiracy and it is not necessary that any further act has to be done pursuant to the said criminal conspiracy. The act of the accused taking training as stated above by us and going to help Akbar shows that Section 120B of the IPC is clearly made out against him. 14 Mr. Chitnis, the learned counsel for the appellant submitted that there is no incriminating circumstance against the appellant for framing of charge. He pointed out that the appellant has not given any confessional statement to show his nexus with the present offence and the prosecution is only relying on the confessional statements given by three co-accused i.e. Mohammad Arif, Mohammad Sadiq and Akbar. He 11 cri-apeal-498-10 submitted that these confessional statements of co-accused cannot be relied upon to show the nexus of the appellant with the present case. No doubt, the prosecution is only relying on confessional statements of three co-accused. We may state that none of these confessional statements have been retracted. Moreover, Section 18 of the MCOC Act, clearly provides that “a confession made by a person before a police officer not below the rank of the Superintendent of Police and recorded by such police officer either in writing or on any mechanical devices like cassettes, tapes or sound tracks from which sounds or images can be reproduced, shall be admissible in the trial of such person or co-accused, abettor or conspirator ”. It is further provided that “the co-accused, abettor or conspirator can be charged and tried in the same case together with the accused ”. It is thus, clear that the confessional statements of the co-accused who are tried at the same trial, can be considered and relied upon and a conviction can be based on the same. 15 The learned counsel for the appellant reiterated that the only material available to the prosecution against the appellant was the confessional statements of the three co-accused. He submitted that 12 cri-apeal-498-10 conviction cannot be based on the basis of these confessions. It is to be noted that these confessions are not under Section 30 of the Evidence Act but they are under Section 18 of the MCOC Act which clearly provides that confession of an accused can be used against the co-accused. The Supreme Court in the case of State Vs. Nalini reported in (1999) 5 SCC 253 considered as to whether Section 30 of the Evidence Act would be relevant while considering the value of confession covered by Special enactment like Terrorist And Disruptive Activities (Prevention) Act, 1987 ( for short “TADA Act ”). We may state that confession under Section 15 of the TADA Act after amendment is pari materia with Section 18 of the MCOC Act. Section 18 begins with a non obstante clause, hence, it applies notwithstanding the provisions of the Evidence Act or the Code of Criminal Procedure. In the case of Nalini (supra), the said contention was dealt with by Wadhwa, J. and the reasoning and finding given while answering the said contention was as under: “Section 15 TADA starts with a non obstante clause It says that neither the Evidence Act nor the Code of Criminal Procedure will apply. This is certainly a departure from the 13 cri-apeal-498-10 ordinary law. When the legislature enacts that the Evidence Act would not apply, it would mean all the provisions of the Evidence Act including Section 30. By judicial interpretation or judicial rigmarole, the court cannot again bring into operation Section 30 of the Evidence Act and any such attempt would not appear to be quite warranted. TADA was enacted to meet extraordinary situation existing in the country. Its departure from the law relating to confession as contained in the Evidence Act is deliberate. Law has to respond to the reality of the situation. What is admissible is the evidence. Confession of the accused is admissible with the same force in its application to the co-accused who is tried in the same case. It is primary evidence and not corroborative. It is admissible against a co-accused as substantive evidence. It is quality of evidence that matters. As to what value is to be attached to a confession will fall within the domain of appreciation of evidence. As a matter of prudence, the court may look for some corroboration if confession is to be used against a co-accused though that will again be within the sphere of appraisal of evidence. “. 14 cri-apeal-498-10 [EMPHASIS SUPPLIED] As per Quadri, J. who delivered a concurring judgment, the said contention was answered in the following words: “The second limb makes such a confession admissible, dehors the provisions of the Evidence Act in the trial of such person or co-accused, abettor or conspirator for an offence under the TADA Act or rules made thereunder provided the co-accused, abettor or conspirator is charged and tried in the same case together with the accused. The import of Section 15(1) is that insofar as the provisions of Cr.P.C. and the Evidence Act come in conflict with either recording of a confession of a person by a police officer of the rank mentioned therein, in any of the modes specified in the section, or its admissibility at the trial, they will have to yield to the provisions of Section 15(1) of the TADA Act as it is given overriding effect. Thus, Sections 162, 164, 281 and 463 of the Code of Criminal Procedure which have a bearing on the question of recording of statement/confession of a person and Sections 24 and 30 of the Evidence Act which deal with various aspects of confession of an accused stand excluded 15 cri-apeal-498-10 vis-a-vis Section 15(1) of the TADA Act and cannot be called in aid to invalidate recording of confession of an accused by a police officer of the specified rank and/or its admissibility in the trial of the co-accused, abettor or conspirator charged and tried in the same case together with the accused for an offence under the TADA Act or rules made thereunder. It must be made clear that the non obstante clause in Section 15(1) of the TADA Act does not exclude the application of all the provisions of the Cr.P.C. and the Indian Evidence Act in the trial of offences under the TADA Act. ” 16 The learned APP has relied upon a decision of this Court in Criminal Application No. 721 of 2009 dated 22nd March, 2010 in the case of Arun Gulab Gawali Vs. State of Maharashtra, wherein it is held that confessions of co-accused in an MCOCA case can be relied upon in the case of other co-accused tried in the same trial. 17 In our view, if the confessions of these three co-accused are read together then the only prima facie inference can be drawn that the 16 cri-apeal-498-10 appellant has abetted the crime as envisaged under Section 2(1)(a)(i) of the MCOC Act and he has also conspired to commit an offence as punishable under Section 3(2) of the MCOC Act. It may also be mentioned here that there is not just one confession of co-accused Mohammad Arif but two more confessions given by other co-accused Mohammad Sadiq and Akbar which corroborate the confession given by accused Mohammad Arif. 18 Mr. Chitnis relied on the decision of the Supreme Court in the case of Suresh Budharmal Kalani alias Pappu Kalani Vs. State of Maharashtra; AIR 1998 S.C. 3258, wherein the Supreme Court held that the statement of co-accused cannot be used against another accused and hence, the accused came to be discharged. We have carefully perused the said judgment. We have noticed that the accused therein who made confessional statements, were discharged and they were not facing trial along with the other accused. It was in these circumstances that the Supreme Court observed that the confessional statement of the accused who was discharged, could not be used against the other co-accused, hence that accused came to be discharged. However, such are not the facts in the present case. The 17 cri-apeal-498-10 ratio of the said judgment has been misconstrued by the learned counsel for the appellant. In our opinion, reliance placed by Mr. Chitnis on this decision i.e. Suresh (supra) is misplaced. 19 Thereafter Mr. Chitnis contended that even on the material collected by the investigating agency in the present case, no charge can be framed against the appellant. He submitted that to consider the question of framing of charge, the test of “prima facie case ” has to be applied. Mr. Chitnis placed reliance on the decision of the Supreme Court in State of Maharashtra Vs. Som Nath Thapa; AIR 1996 SC 1744, wherein it is observed that “if there is ground for presuming that accused has committed offence, the Court can justifiably presume that the prima facie case against him exists and so frame the charge against him for committing that offence ”. On going through the said judgment, we noted that the Supreme Court has also observed that even if the Court finds that the accused “might have ” committed the offence, it can frame charges. On going through the material placed before us in the present case, we feel it is not just a case of “might have ” but, we have no manner of doubt that there is sufficient ground for presuming that the appellant has committed the offence and in the light of the 18 cri-apeal-498-10 material gathered during the investigation, we can more than justifiably presume that a prima facie case exists against the appellant. In the case relied upon by the learned counsel, the prosecution case against the accused therein was that he had booked the air tickets out of his own funds for some of the accused to go to training camps in Pakistan. However, the Supreme Court observed that there was enough material to show that the funds for booking the air tickets to go abroad, had come not from the funds of the accused but the money was made available to the accused by one Maulana Bukhari. The entry showing that money was sent by Maulana Bukhari was pressed into service by the prosecution to contend that the money for training had been paid by the appellant from his funds. In view of the fact there was enough material to show that the money had come not directly from the accused therein but from one Maulana Bukhari, the Supreme Court made observations therein that the charge against the appellant therein was only the overt act attributed to the appellant that he had booked the air tickets. However, in the present case we have sufficient material i.e. statements of three co-accused which clearly show the involvement of the appellant in the offence. We have already observed above that in view of Section 18 of the MCOC Act, confessions of co-accused can be very well relied 19 cri-apeal-498-10 upon by the prosecution in order to prove its case and a conviction can be based upon confessions by co-accused. In our opinion, the judgment in the case relied upon, does not lay down the proposition canvassed by Mr. Chitnis. 20 The learned APP Mrs. Kejariwal submitted that even if there is a ground for presuming that the accused “might have ” committed an offence, it can frame the charges. She further submitted that at this stage, probative value of the material on record, cannot be gone into. She has also placed reliance on the decision of this Court dated 11.6.2009 in the case of Govind Sakharam Ubhe Vs. State of Maharashtra and Ors. In Cri.Appeal No.18 of 2009, (Coram: R.P.Desai and R.G.Ketkar, JJ.) wherein it is observed that if the material creates a strong and grave suspicion, it would be sufficient to frame charge. 21 Mr. Chitnis submitted that two of the co-accused have stated the name of the person involved as only “Mohammad Zakir ” or “Zakir Shaikh ” and Akbar has referred to him as only “Zakir ”. He submitted that there is no material to show that the person referred to by 20 cri-apeal-498-10 them is the present appellant. He submitted that in the entire charge sheet, there is no material to show that the appellant is said person. He further submitted that there are many persons in Azamgarh by the very same name and it cannot be said that the appellant is the very same person. In this connection, we may refer to the confessional statement of Mohammad Arif wherein he has stated that he met Mohammad Zakir in Bhiwandi in the year 2004. He has further stated that he convinced the said Mohammad Zakir who is staying in Bhiwandi but who belonged to his village to go for training to Pakistan and the said Mohammad Zakir agreed to go for training. The appellant does not deny that he is staying at Bhiwandi. In fact, the title clause of this appeal clearly shows that the appellant is resident of Bhiwandi. It is also not denied