Case: CENTRAL BUREAU OF INVESTIGATION Vs. MOHD.PARVEZ ABDUL KAYUUM

position, and in such a case, any member of the public acting bona fide, can move the court for relief under Article 32 and a fortiorari, also under Article 226 so that the fundamental rights may become meaningful not only for the rich and the well to do but also for the large masses of people who are living a life of want and destitution and who are by reason of lack of awareness, assertiveness, and resources unable to seek judicial redress. Court can and must allow any member of the public acting bona fide to espouse the cause of such person or class of persons for judicial enforcement of the fundamental rights. This Court has further observed that the provisions of Article 32 do not specifically indicate who can move the court. In the absence of such a provision in that respect, it is plain that the petitioner may be anyone in whom the law has conferred power to maintain an action of such nature. It is open to anybody who is interested in the petition under Article 32 of the Constitution for relief. The aforesaid proposition cannot be doubted. In the instant case, the petition cannot be said to have been filed bona fide as in the facts and circumstances as narrated above. In case it is at the instance of family members, their rights have been adjudicated by the High Court and concluded up to this Court. Accused persons are represented by able lawyers throughout and in criminal appeals. But unfortunate part is that they had a hand in filing of the petition by supplying the materials to the petitioner CPIL and CPIL in all fairness, ought not to have filed the petition in the form of PIL but an application should have been filed on behalf of the accused persons or any other person interested in criminal appeals. When all concerned were aware that appeal was being heard in this Court for the last 2 months before the filing of the petition, publications being made in reports when the appeal has been taken up for hearing is also not a proper scenario and may tantamount to undue interference in course of justice. 265. We have dealt with on merits the various submissions raised by the petitioner as to the falsity of the case of the prosecution and investigation in criminal appeals and have found that on merits the submissions raised to cast doubt on prosecution case by CPIL are baseless vide detailed discussion which we have made while dealing with the criminal appeals decided today by separate judgment in which we have reiterated the judgment of conviction recorded by the Trial Court. 266. During the course of arguments, we had put a query to Mr. Prashant Bhushan, learned counsel appearing on behalf of CPIL, how he can appear as counsel in the case filed by CPIL as he admittedly is a member of the executive committee of CPIL. In view of the rule of professional ethics framed by the Bar Council of India contained in section I of Chapter II of Part VI, Rule 8 is extracted hereunder: "8. An advocate shall not appear in or before any court or tribunal or any other authority for or against an organisation or an institution, society or corporation if he is a member of the Executive Committee of such organisation or institution or society or corporation. "Executive Committee", by whatever name it may be called, shall include any Committee or body of persons which, for the time being, is vested with the general management of the affairs of the organisation or institution, society or corporation: Provided that this rule shall not apply to such a member appearing as amicus curiae or without a fee on behalf of a Bar Council, Incorporated Law Society or a Bar Association. 267. Rule 8 makes an exception only if such a member is appearing as an amicus curiae or without a fee on behalf of a Bar Council, Incorporated Law Society or a Bar Association. There is no exception to a body like CPIL. Mr. Prashant Bhushan learned counsel has stated that he had questioned the vires of Rule 8 by way of filing a writ petition in the High Court. In order to save vires of aforesaid Rule 8, the statement was made in the Court by the Bar Council that they are going to amend the rules, however, he submitted that the Bar Council has not amended the rules in spite of making the statement. The rule is arbitrary and ultra vires as such he can appear. 268. We are not happy with the entire scenario. There cannot be any justification to appear in violation of Rule 8, on the ground that the rule is arbitrary or ultra vires. The rule is not so far declared to be illegal or ultra vires by the Court. The Rule 8 is binding on the members of the Bar unless and until the rule in question is amended or declared to be arbitrary or ultra vires for any reason, it is to be observed scrupulously by members of the Bar. Rules of professional ethics are meant to be observed by all concerned. In case their observance is done in a breach that too before this Court and that too knowing its implication on the aforesaid canvassed untenable ground, no one can prevent breach of rules of ethics. If the Bar Council after making a statement has not amended the rule, the rule ought to have been questioned afresh in an appropriate petition. The appearance on behalf of the CPIL by a lawyer who is in the Executive Committee of the said Centre, cannot be said to be proper as it is defined misconduct under the rules. This is in breach of Rule 8 of the aforesaid Rules. We need not say any further on this. However, until it is declared ultra vires, we hold that the advocates are bound to observe the same.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]32. In our opinion, precise rolling of the glass when he was fired at, cannot be stated by any person with precision. It is too much to expect a person to state how much rolling of the glass of windows had been done at the time of firing. Even if the witness had stated so, that would be merely his guesswork. When a person is rolling the glass up, it is possible that he might have been fired the shot when the window was quite wide open and when he was in the process of rolling it up. The person in order to save himself from the firing would also try to roll up the glass with speed then also gunshot firing can be made in the process. Thus the argument raised that there was a tiny opening of 3 inches when the shots were fired, is against the normal course of human conduct to make such statement and the way in which the incident has taken place it cannot be said with precision how much rolling of the glass of windows was done before firing took place and how much rolling was done after suffering some shots or in the process of firing. It can only be said that he was in the process of rolling the glass up when the firing tookwe consider the aforesaid report, injury No.1 is on the lower part of the front of the neck on the right side, that is on the right clavicle. The doctor has clearly expressed that injury Nos.5 and 6 are communicating ones. As a matter of fact, in communicating injuries it is not necessary that the bullet to have entered the proximal to junction of the index and middle finger. It could have passed touching the area and then caused injury on the right forearm in the process of reaching right up to the front on a lower part of the front to cause injury No.1. The medical evidence clearly establishes that injury No.5 was caused first, 6 thereafter and No.7 was ultimately caused by the same bullet and doctor has clearly explained it. While replying to question No.14, the doctor said that if the hand is reflexly kept in front of neck region on the right side and that back of the hand is facing the opposite side of the victim, bullet injury No.1 may be caused after causing injury Nos.5 and 6.The conclusion of the High Court is only right to the extent that injury Nos.5 and 6 could not be said to be entry and exit wounds. They were rather communicating wounds caused in the process of causing injury No.1. The conclusion to the contrary averred by the High Court as to independent injuries is absolutely incorrect. Testimony of PW-55 cannot be said to be falsified on the basis of aforesaid medical evidence. There is no inconsistency with respect to the aforesaid aspect in the medical version and the ocular version ofis apparent from the aforesaid answer that wound has been referred by doctor PW-8 as a small part of the body and soft tissue. Thus, it is a communicating injury of soft tissue not piercing through or entering the wrist. It is clear that injuries 5 and 6 are communicating injuries and injury No.1 has been caused by the same bullet. The entry and exit wounds have been seen and explained by the doctor in the aforesaid manner which has to be communicating one only caused by the same bullet.It was also urged that the account of a number of injuries of the bullet is not matching with the number of injuries found. There were 7 gunshot wounds whereas 5 bullets were recovered from the body of the deceased. As already explained 5 bullet injuries were caused as suggested by ocular evidence of PW-55 and also by medical evidence that 5 bullets were found as injury Nos.5 and 6 were communicating injuries leading ultimately to injury No.1 as discussed above. Thus, there is no inconsistency rather ocular evidence is fortified by the medical evidence.The accused person has relied upon "Grays Anatomy" and "A Colour Atlas of Human Anatomy" to contend that there are 32 tightly packed bones in the palm. The tightest packed are wrist bones and the carpal tunnel is just about 8.3 mm in depth (as per medical journals). A 0.32 caliber bullet has a diameter of 7.65 mm. Therefore, in the absence of any credible competent forensic explanation of the track of injuries 5 and 6, this theory set up by CBI at the stage of arguments, is liable to be dismissed.There is no dispute that the palm has tightly packed bones. In the instant case, as the bullet has not entered inside and only touched the soft tissue in injury No.5, the injury was caused on the soft tissue and then it has superficially touched the wrist.The doctor has stated in para 8 that external injuries 5 and 6 were found communicating with each other. Fracture of 2 nd right metacarpal bone was present. He has further stated that bullets were made of white metal, they were sealed, labelled and handed over to the police officer on duty. When the treating doctor was asked how there were 5 bullets and 6 entry wounds, he has opined that one injury will be of the entry of the bullet and that was precisely the communicating injuries 5 and 6 leading to injury No.1 that was the re-entry wound. Whether injury No.1 was original or re-entry, he has referred to post mortem report to opine that injury Nos.5 and 6 are communicating injuries.The High Court as well confused as to the number of injuries on the basis of 7 wounds and 5 number of bullets fired. In case of such communicating injuries, it is not necessary that the bullet should enter any part of the body while reaching to the last injury, it may cause scratch or touched the small part of the body or soft tissue as has been done in the instant case. It has happened in the instant case.it has been observed that in some cases it is difficult to determine a direction but in the instant case considering the fact that the injuries are only on the right side which is on drivers side, 3 wounds were caused on the chest and injury Nos.1, 5 and 6 were caused by the same bullet obviously fired from the drivers side window only as is apparent from the direction of communicating injuries also. There is no inconsistency in ocular and medical evidence in the instant case.In our opinion, from the statement of PW-55 it is clear that when Haren Pandya fell in the car, his leg came up. Obviously, the left leg would come up towards the drivers side and where the injury is caused to him, obviously it would be in the same direction and travel the same way it has travelled. The same is the statement of witness PW-55 made in the examination-in-chief cannot be said to be an improvement. He has stated what he has seen. It is not necessary to state every minute details in the statement under section 161 Cr.P.C. It is not for the autopsy doctor to give a vivid description as to how the deceased reacted at the time when gunshots were fired upon him as he was not an eye witness. In view of the evidence on record, the statement made by PW-55, the direction of causing of injury No. 7 is fully explained and an eye witness cannot be said to state all these details with mathematical precision. Question is whether he is otherwise reliable and whether other evidence corroborates him. Corroborating evidence is available in abundance.As to the precise distance inch-wise position at the time of firing, there is no witness who can give an exact description as suggested in a lengthy cross-examination. Lengthy cross-examination on this line was wholly uncalled for and wholly unnecessary and witness is not supposed to furnish all such details with precision. Though the witness has withstood the test of cross-examination also.In Ram Narain Singh (supra) the Court observed that the prosecution has to prove that injury was caused by the weapon in the manner as alleged. There is no dispute with the aforesaid proposition. However, the applicability of ratio has to be seen in the facts and circumstances of each case. In the instant case, the ocular evidence of PW-55 is not discredited by the medical evidence.With respect to track of bullet for injury No. 7 much was argued. As already stated in Modi?s Jurisprudence, the track of bullet may take a different course once the injury has been caused. Bullet may ricochet inside the body after causing the injury. In view of entry wound as explained in Modi?s jurisprudence too much cannot be made out of the direction when the injury could have been caused in the method and manner suggested by PW-55. The High Court while appreciating injury No.7 has not considered the fact that Haren Pandya fell down inside on adjoining seat and his left leg came up as stated by the witness. The High Court has simply proceeded on the basis that the victim was sitting on the driver?s seat or was sliding on to the adjoining seat. The aforesaid material part of the statement of witness makes it clear how the injury was caused.It was also urged that the mobile phone of Mr. Pandya was not investigated. In our opinion, it was not necessary at all in the facts of the case. It is not disputed that he had left the house in the morning toIt was urged that no fingerprints were lifted from the car or from the weapon recovered afterward and shoes were not recovered. In our opinion, it was not a case of a cold-blooded murder where there was no eye witness. Thus, when the accused has not touched the car, taking fingerprints from the car was not at all necessary and the weapon of offence has also been recovered from the accused. It was not necessary after quite some time when its recovery was made to lift the fingerprints from it. Merely non-recovery of shoes of deceased from the hospital where a large number of persons had gathered by itself is not enough to discredit prosecution case.The High Court in para 16 has observed that negligible blood was found near the driver?s seat. The clothes of the deceased bore tell- tale signs of profuse bleeding from injuries on his neck and fore-arm and mobile phone and keys lying under the seat had stains of blood. Thus, it is apparent that there was blood on the seat as well as on the mobile phone and keys which were lying on the floor.As eye witness has clearly stated the position where he was. He has been cross-examined at length, blood on cloth was found, how much, where it was found is not going to discredit the ocular version and an entire incident.When questioned about the blood, PW-8 has answered, it would depend whether haemorrhage was internal or external. If there is internal haemorrhage there would not be much blood outside. The volume of the blood on the spot would depend upon the type of injuries. Out of 7 bullet injuries, 6 were internal wounds, and on the fore-arm where minimum or less blood is possible, it was external. In answer to question No.111, the doctor has stated.The High Court has mostly proceeded on the basis that there should have been more blood found in the Maruti car. As already discussed, it would depend upon the injury whether it was internal bleeding and how a person is lying, it can also spill on the clothes and fact remains blood has also been recovered from the Maruti car. It is not necessary for how much quantity it should have been recovered. It was found on mobile phone also and keys as observed by the High Court.It was submitted that the FIR was not lodged by PW-55. The police control room was informed by IGP Mr. Suman. Thus, the conduct of PW-55 does not inspire confidence, he was not an eye witness. In our opinion, Anil Yadram, PW-55 had gone to inform the factum of the incident to the owner of Chitty Bang, Mr. Nanubhai S Wala (CW-1) at Desai Hall. It is not uncommon for a person to react in the manner PW-55 has done. He first wanted to inform the owner of the place as to the murder of Haren Pandya. He was not a literate. CW-1 has also supported the version of PW-55, the narration of incident to CW-1 by PW-55 is quite natural and inspire confidence and there is due corroboration of the version by CW-1 Nanubhai. In the circumstances, non-production of Shukla Chacha who had simply given the lift in a rickshaw to Anil Yadram, PW-55 and has taken him to the house of CW-1, Nanubhai does not cause any dent in the prosecution version. Merely on the ground of non-examination of the witness Kanhaiya, the deposition of PW-55 cannot be discarded. By the time PW-55 came back to the spot police had already arrived and the body of the deceased was taken in another vehicle to the hospital. Anil Yadram has stated to Nanubhai CW-1 that Haren Pandya had been shot dead and ?woh gadi mein ulte hokar ke pade hain? and he had seen the accused taking to their heels. It could not be said from the deposition of PW-55 that he had received the information of the incident, in fact, he has given a vivid description as eye witness noted PW-55 or CW-1 had no ill-will or malice against the accused. It does not make any difference whether Nanubhai CW-1 was examined as a court witness or as a prosecution witness. Once a witness has been examined, his evidentiary value has to be considered in accordance with the law. Once he has been examined no question to draw any adverse inference against the prosecution arises.It was submitted that CW-1 had attempted to shrink the timeline by stating that PW-55 came at around 9.15 a.m. instead of 9.45 a.m. On a rough estimate of time, no adverse inference can be drawn as to the correctness of the version by the aforesaid witness. Estimation of time may differ by some margin when a statement is made in court after years together. Merely by the fact that CW-1 asked PW-55 twice whether he had seen the incident, he said ‘yes he had seen the incident twice. That does not cause any dent in the prosecution case and does not render the statement of PW-55 doubtful in any manner. We find no embellishment or material improvement in the courts statement as compared to the one recorded under section 161 Cr.P.C. The question of whether CW-1 had asked PW-55 whether he was speaking the truth and omission of that in the statement under section 161 cannot be said to be a material omission. Material facts have been stated in the statement and there is no contradiction with respect to the material facts with the statement under section 161 Cr.P.C. as to the approximation of time also nothing can be made out by the accused.The argument was raised on behalf of A-1 that PW-55 did not mention in the examination-in-chief the time of the incident at around 7.30 a.m. He admitted that he does not have a watch. No one can tell the correct time. How by the aforesaid statement any benefit can be derived by the accused, passes comprehension as it is not uncommon that various persons do not keep a watch and they go by rough estimation of the time. It was not necessary to speak about the time of occurrence in the examination-in-chief nonetheless it has been brought about in the cross-examination. There is nothing to disbelieve the estimation of time made in the cross-examination. Time assessment may differ in some duration. It was urged that as far as the time consumed by PW-55 is concerned, the incident had not taken place at 7.30 a.m., the submission is futile. As urged, in which condition the deceased was taken to the hospital, is not material whether sitting or lying. He was taken to the hospital when he was already dead.It was urged that the conduct of PW-55 is inconsistent with that of an eye witness. The witness should have contacted to the regular walkers in the Law Garden. He did not go to the Law Garden. It is not likely that he had witnessed the incident. He has stated that he was too scared to go to the police and stated to Shukla Chacha that he wanted to tell the police. In our opinion, overall conduct of the witness is not unnatural considering the person belongs to poor strata of the society and decided to inform the owner of the Chitty Bang where his cart was parked, is not common and is very usual conduct in the course of normal human conduct.It was submitted that on the basis of the statement of PW 55 sketch Ex. 620 was prepared. There is crucial variance with the description recorded under section 161 Cr.PC. The descriptive features mentioned by him are not even reflected in the sketch. PW-55?s deposition cannot be discredited or tainted in any manner by faulty preparation of sketch. Even otherwise the evidence of sketch is not of much significance. Sometime the sketch may not tally with the version given by a witness.In view of the identification made by the witness in the test identification parade, no dent is caused by the so-called sketch in the ocular evidence of PW-55. Considering the intricate nature of the investigation, we find that there was no undue delay in holding the T.I.P. It was held on 5.5.2003 after 20 days of the arrest of the accused. The accused had been identified in the same. Jagdish Tiwari (PW-39) also, later on, had rightly identified A-1 (Mohmed Asgar Ali) as the assailant. The decision relied upon in Subash and Shiv Shankar v. State of U.P. 1987 (3) SCC 331 wherein the test identification parade was done after 3 weeks. In the facts of the said case, the identification was disbelieved. The decision is distinguishable and turns on its own facts and circumstances.It is the duty of the High Court to examine the details of the intrinsic merit of the evidence of eye-witnesses. As observed by this Court in State of U.P. v. Sahai & Ors., AIR 1981 SC 1442 , PW-55 has been cross-examined repeatedly on the same question as to Maruti Fronti came from Gajjar Hall Cross Road side which he withstood. The reason employed by the High Court that the presence of PW-55 at the gate at 7.30 a.m. (sharp) is doubtful, is also wrong as he was there because he had parked his hand cart in the Chitty Bang and the fact is corroborated by CW-1, Nanubhai who was known to him for the last 15 years. The time-frame employed by the High Court with respect to the witness travelling time that he should have come back at 10.30 a.m. and not at 11 a.m. is based on estimation as if PW55 was not a witness but was an accused. The version of the witness is not shaken by the aforesaid aspect. The timing stated by the witness is by estimation as he did not carry the watch. The High Court has adopted hyper-technical approach in assessing the evidence and has been moved by minor discrepancies which do not go to heart of the matter and shake the basic version of the prosecution witness, as held in Vijay @ Chinee v. State of M.P. 2010 (8) SCC 191 , and Bhajan Singh @ Harbhajan Singh & Ors. v. State of Haryana (2011) 7 SCR 1. The High Court is also moved by the fact that PW-55 claims to have seen the kurta of Mr. Pandya and stated the colour of stripes of kurta as brown whereas stripes of kurta were red in colour. There can be confusion in identification of the colour of the kurta and memory may also fade after several years and there is not much difference between red and brown. It is a minor discrepancy which has weighed with the High Court whereas it ought to have been ignored.It was also submitted on behalf of A-1 that bullet recovered was not sent for ballistic examination and bullets produced in court differ in colour and the state of deformation recorded during post mortem. However, it is clear that it was not put to the doctor that the bullets which were produced in the court, were not the same which he has recovered.It was further submitted on behalf of the accused that the colour depends on whether it is a pure lead bullet or a bullet with a lead core covered by a jacket of zinc. A pure lead bullet is used in a revolver, a jacketed bullet with a lead core is used in a pistol. A pure lead bullet will never look white. Its colour will always be greyish black. If pure lead bullets caused the wounds on Haren Pandyas body, they would have been greyish black even when removed at the time of post mortem. The bullet sent to CFSL and later produced in court were pure lead bullets which could never have looked white. Therefore, these bullets could not be the ones recovered from the body at post mortem which were white metal bullets, seen by the four doctors conducting the post mortem. As a matter of fact, the doctor has clearly opined that white bullets were seized and they were sent for ballistic examination and they have been produced from the CFSL. In our opinion, it was necessary to put in the cross-examination of PW-8 the fact that the bullets which were produced in court were not the same which were recovered at the time of post mortem, which has not been done. Thus his testimony cannot be discredited on this aspect.On behalf of the accused, it was submitted that the chemical test on the clothes has not been done to ascertain the nature of bullets used in the offence.The test, as well as breach face mark, have to be performed which is prescribed in the CBI Forensic Manual. The test is must to eliminate by proper evidence before concluding that un- jacketed bullets had been used and therefore the revolver was used. Metal will be present in both unjacketed and jacketed bullets. No copper test was done in the case, therefore, it is not known whether the actual weapon was a pistol or revolver. In our opinion, even in the absence of the aforesaid test, the evidence conclusively establishes that the revolver was used in the offence for firing the bullets in question and that has been proved to be a weapon of the offence and recovered too.It is apparent that every fired bullet has individual characteristics in the form of minute striae along with the land and groove impression. The bullets are finally identified with the specific weapons on the basis of these striae. DW-8 has also stated that in 95 % of the cases, filing in marks alone permit identification of the firearm, but in the event of any tampering of firing pin, the expert would examine breach face mark which shall have to be compared with test fired cartridges to confirm the opinion that the cartridges are fired from the said firearm.Thus, the evidence of DW-8 also makes it clear that breach face alone is sufficient to confirm the opinion if they are found to be repetitive and also of repetitive character of the striations which are due to an individual firearm can be related to a particular firearm. In this case, while ignoring the difference caused by tampering of the firing pin found the second time, the basic striation marks remain the same which is individual for every revolver and is not to be found in any other such weapon. Thus, the evidence is conclusive to prove that the revolver in question was used in firing the bullets recovered from the body of the deceased Haren Pandya. The medical evidence, thus, supports the version of PW-55.It was submitted on behalf of the accused that Ms. Jagrutiben, wife of Haren Pandya should have been examined so as to prove that the offence took place at about 7.30 a.m. as she has stated in the statement under Section 161 Cr.P.C. tha deceased left house at around 7.00 a.m. Some of the friends of deceased and P.A. etc. later on reached the spot they have not been examined.In our opinion, no dent is caused as Jagrutiben and other persons were not the eye- witnesses. In case of any doubt, they could have been examined as defence witnesses. Jagrutiben, even if examined, would have proved the fact that deceased left for Law Garden at around 7 a.m. and he would have reached there around 7.10 a.m. No benefit can be drawn from the aforesaid aspect. No adverse inference can be drawn against prosecution due to non-examination of Jagrutiben. As estimation of time may differ and as per Jagrutiben, deceased left for Law Garden only where he used to go for a morning walk.In spite of the tampering of the firing pin, the material striations are telling the tale and overall evidence inspires confidence and no dent is caused in the prosecution case. In our considered opinion the bullets and cartridges seized from A-1 match with the revolver and bullet recovered from Haren Pandyas body. We reject the submission raised by A-1. The recovery was from the rented flat of A-1 at Ahmedabad. No one had access to the place and knowledge. Thus, the recovery at the instance of A-1 is not doubtful.Statement of PW-76, Akhtar is not at all with respect to the disclosure and discovery attributed to A-1 on the intervening night of 26.4.2003 and 27.4.2003 of a revolver, pistol, and cartridges. PW-76 has deposed as to the motorcycle. In our opinion, it was not for the police to explain as to who had put two locks on the flat as submitted by the accused. That no adverse inference can be drawn for failure to explain putting of 2 locks. In no case, locks can be attributed to CBI.The High Court has observed that in view of the concession granted by the counsel for the appellants, voluminous records and number of controversies about each piece of evidence, it was not necessary to be dealt with and each and every argument of learned counsel for both the sides. It could not be said to be the proper approach of the High Court. The High Court ought to have examined the entire background as to what facts and circumstances prevailed and whether the chain was complete to make out the case of conspiracy. It was absolutely necessary so as to find out the conspiracy. The acquittal recorded by the High Court was wholly uncalled for and is based on basically a wrong approach. It was incumbent upon the High Court to come a close quarter of reasoning employed by the trial Court and assessment of the evidence of the witnesses done by the trial court with great care, in an elaborate manner. The High Court has failed to consider the reasons and has jumped to the conclusion.This Court has observed that safeguards have been provided in various provisions made in section 32. Exclusive provisions have been made in section 32. The notable safeguards which were lacking in TADA are to be found in sub-sections (4) and (5). While interpreting the provisions of section 32(5), this Court has observed that ordinarily the person should be sent to judicial custody. In exceptional cases, police custody can be granted and not otherwise. Non-compliance with usual custody requirement does not per se vitiate the confession. In the instant case, the accused persons have been sent to judicial custody and the provisions of section 32 have been complied with in pith and substance.It was also submitted on behalf of accused persons the strength of the Parliament attack case that the Magistrate should have read out the confession or at least gist of the same for compliance of provisions of section 32(5).The magistrate should also assure the accused beforehand that he can be sent to judicial custody and thereafter it is not enough that he ends up sending him to judicial custody. The statement of the accused is read over by the S.P. and if the same is admitted to be correct, thereafter he had put his signatures. Section 32(4) requires that the person whose confession has been recorded to be produced before the Magistrate along with an ordinary statement of confession within 48 hours. The Magistrate shall record the statement, if any, made by the person so produced and get his signatures or thumb impression. If there is any complaint of torture then medical examination has to be ordered and thereafter he shall be sent to judicial custody.When we read order sheets, it is apparent that the Magistrate has recorded the statement made by the accused and has obtained the signatures. The Magistrate has clearly enquired whether he was ill-treated or tortured by the CBI while in custody, for recording a confessional statement to which he replied in the negative. The accused was asked what he wanted to say to which he responded that he made a voluntary confessional statement. Then he was remanded to judicial custody. In view of the fact that the officer of the rank of S.P. has duly recorded that he has read over the statement and the accused has admitted it to be correct, as in due compliance with the provisions of section 32, so it was not necessary for the Magistrate to read over the same again to the accused, in view of clear language employed in section 32(4) and (5) the duties enjoined upon the Magistrate have been duly observed.The application which was filed by the prosecution before Magistrate was not for police remand but for sending him to judicial custody. Thus, when the accused had been sent to judicial custody, it cannot be said that he was not aware that he was to be sent to judicial custody. Since there was no complaint of any torture and S.P. had also recorded the fact that there was no complaint of torture or any mark of injury or violence on his body, he was sent to judicial custody.The decision in Adambhai Sulemanbhai Ajmeri & Ors. v. State of Gujarat, (2014) 7 SCC 716  in which confessional statement was made after 11 months and the accused was given only 15 minutes? time to reflect- whether they wanted to make confessional statement and thereafter it was recorded, and it appears that the record of the case also did not reflect that it was read over. It does not appear that in the said case it was read over by the Superintendent of Police. Be that as it may. The requirement has been fulfilled in the instant case as the S.P. has read over and is so recorded, that he has read over and it was admitted to be correct and thereafter the accused has signed it. The original statements were recorded in the Hindi language which was known to the accused persons in their ownthe instant case, the confessions have been recorded from 4.6.2003 to 22.6.2003. In the instant case the accused were arrested on different dates in May and June and some were taken into custody from one case to another and then taken on police remand, and in the facts and circumstances of the present case there was no such prolonged custody so as to render the confessional statement doubtful in any manner only due to the fact of police custody. The impact of police custody would depend upon the facts of each case. What is the impact of police custody on the confessional statement has to be considered also in view of the fact whether the accused were given sufficient time to think over which was given in the instant case. They had legal assistance also as they had communicated with advocates also after they were arrested and then the S.P. explained in writing to them the consequences of making such a statement. S.P. ensured that they were not under any fear or greed etc. and that they were not tortured. Thereafter confessional statement had been made. Sufficient time for reflection had also been given. Thus, no benefit can be derived from the aforesaid decision.Learned counsel appearing on behalf of A-1 has pointed out that he remained in police custody from 17.4.2003 to 23.5.2003. Thereafter he was sent for judicial remand and again taken on police remand on 12.6.2003. After his confession in another POTA case, A-1 was remanded back to police custody from 16.5.2003 to 23.5.2003. Thus, A-1 had lost the confidence to speak out during his 10 minutes production before the Magistrate and was not sure that he may be sent to police remand again.In our opinion the submission is baseless. It cannot be said to be prolonged police custody. When several accused persons are involved in various cases and an accused is found involved in a series of cases, obviously, his police remand has to be taken in a particular case. That does not mean that he has been sent to police remand in some other cases would adversely affect the confession. What is envisaged is that with respect to the same crime, he should not normally be subjected to police remand once he makes a statement in the court with respect to his confession as we see under section 32(4) and (5), he has to be sent to judicial custody. That has been precisely followed. In the case, it cannot be said that he was subjected to prolonged police custody or he had lost the confidence that he would not be sent to judicial custody.Learned counsel on behalf of accused further submitted that in view of the decision of this Court in Shivappa v. State of Karnataka, (1995) 2 SCC 76 , searching inquiry should be made by the Magistrate before recording confessional statements.In the instant case, under section 32 of POTA, since there is a departure and confession is made to a senior police officer has been made admissible, the aforesaid decision based on section 164 Cr.P.C. is not attracted, even otherwise when we apply the aforesaid test laid down with respect to section 164 Cr.P.C. as in Shivappa (supra), in our opinion the S.P. under section 32(1), (2) and (3) and the concerned Magistrate under subsections 4 and 5 of section 32 have performed their duties effectively as per the law laid down by this Court in the aforesaid decision in which this CourtFrom the plain language of Section 164 CrPC and the rules and guidelines framed by the High Court regarding the recording of confessional statements of an accused under Section 164 CrPC, it is manifest that the said provisions emphasise an inquiry by the Magistrate to ascertain the voluntary nature of the confession. This inquiry appears to be the most significant and an important part of the duty of the Magistrate recording the confessional statement of an accused under Section 164 CrPC. The failure of the Magistrate to put such questions from which he could ascertain the voluntary nature of the confession detracts so materially from the evidentiary value of the confession of an accused that it would not be safe to act upon the same. Full and adequate compliance not merely in form but in essence with the provisions of Section 164 CrPC and the rules framed by the High Court is imperative and its non-compliance goes to the root of the Magistrates jurisdiction to record the confession and renders the confession unworthy of credence. Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution still lurking in the mind of an accused. In case the Magistrate discovers on such enquiry that there is ground for such supposition he should give the accused sufficient time for reflection before he is asked to make his statement and should assure himself that during the time of reflection, he is completely out of police influence. An accused should particularly be asked the reason why he wants to make a statement which would surely go against his self-interest in course of the trial, even if he contrives subsequently to retract the confession. Besides administering the caution, warning specifically provided for in the first part of sub- section (2) of Section 164 namely, that the accused is not bound to make a statement and that if he makes one it may be used against him as evidence in relation to his complicity in the offence at the trial, that is to follow, he should also, in plain language, be assured of protection from any sort of apprehended torture or pressure from such extraneous agents as the police or the like in case he declines to make a statement and be given the assurance that even if he declined to make the confession, he shall not be remanded to police custody.The decision in Aloke Nath Dutta & Ors. v. State of West Bengal (2007) 12 SCC 230 , relied on behalf of the accused is based upon section 164 Cr.P.C. which is quite different in which the confession is recorded by the Magistrate. Section 32 is a departure from the same. S.P. is authorised to remand and he has observed all the safeguards.Thus, the decision for the aforesaid reasons has no application.There is no dispute with the aforesaid proposition. However, it would depend upon the nature of the case and the facts and circumstances and evidence in each case whether the confessional statement is truthful and is corroborated. That has to be seen in each case. In Parliament attack case (supra) certain observations have been made with respect to section 52(2) of POTA Act which specifically provided that the person arrested shall be informed of his right to consult a legal practitioner as soon as he is brought to the Police Station. Section 52(3) provides that information of his arrest shall be given immediately to a family member or a relative.observations made by this Court in Parliament attack case carry the case no further as the accused were having the legal assistance after their arrest and they were never deprived of the same, and it is not their case they had asked for lawyer?s assistance during the period of reflection before confessing and they were denied the same.In the Parliament Attack case, the observation has been made by this Court in the light of the submission that the confession cannot be truly judged from the standpoint of probabilities and natural course of human conduct, though this Court has commented that they were plausible andCourt has merely laid down that confession of accused is not admissible as against co-accused person and when TADA makes the confession against co-accused admissible, it could not be said that the words co-accused were added in Section 15(1) of TADA, ex majore cautela. Through the expression, they were admissible against the accused has not been used in Section 32 of POTA. It is relevant and admissible against the maker of it.In our opinion, there was no violation of safeguards provided under the provisions of section 32(5) vis a vis any accused person. The confessions cannot be said to be inadmissible. The provisions of section 32 have been duly complied with.It was also submitted on behalf of accused persons that recording of confessions was flawed. The accused were placed in seclusion and they were not informed of the time at which they would be summoned. PW-21 has admitted that none of them called him in- between.In our opinion, the time of reflection was granted which was adequate in this case and after giving an opportunity to accused whether they wanted to make a confession after being told that it may be used against them, it was the case of observance of the aforesaid principle and it is not the case that the accused had asked for legal assistance during that period and were deprived of it. The legal aspect of the effect of confession had been duly informed to the accused persons beforehand in writing so many words, and adequate time was given for reflection so as to consider the consequence of making a confession. Nothing more could have been advised by a lawyer. Thus, by not volunteering to provide aid of lawyer in view of the fact that the case, where it was not asked for during the time of reflection, even on the assumption that it was necessary, no prejudice can be said to have been caused to any of the accused persons as they were given enough time for reflection, whether they wanted to make confession as it could be used against them. Thus, there was no breach of any of the constitutional rights flowing from Articles 21, 22(3) and 20(3) of the Constitution of India. As already mentioned that they were assisted by lawyers also in the main case when remand etc. was sought. The submission that PW-21 has stated that police custody has no relevance upon the voluntary nature of confession, which is as per counsel is against the settled jurisprudence, is also untenable for the reason that section 32 makes a voluntary confession to a police officer admissible.It was also submitted on behalf of accused persons that the use of words like ?suraksha?, ?prabandh?, ?poorva? ‘netritva? ‘anusar? ‘hatya? sampark", etc., which are highly Sanskritised words would never occur spontaneously to a Muslim of A-1s background from the Deccan/Hyderabad region. "Spontaneously to a Muslim like the background of A-1 who hails from Hyderabad", and to other accused persons, the submission is not tenable. It would depend on several factors. Firstly, the aforesaid words cannot be said to be Sanskritised. Secondly, it would depend upon the educational background of a Muslim in which he has been brought up.Merely by the fact that A-1 happens to be a Muslim, it cannot be said that he would not know these words, particularly when it would depend upon his own education and the family background in which he has been brought up. There are highly cultured and literary families found in Muslims also who know several languages not only Urdu and are known for their Tehzeeb. Thus the criticism made of the confessional statement due to use of the aforesaid words that they could not have been employed by A-1 or by other accused persons is not only unwarranted but also unacceptable and the same is liable to be and is hereby rejected.In the confessional statement accused have referred to mobile numbers cannot be said to be rendering it unreliable. It is not uncommon to remember mobile numbers and to narrate them.The argument was raised that when accused asked for a glass of water, this renders the confessional statement unworthy of credence. A police officer is not supposed to remember all these aspects and tell about them for several years and statements cannot be discredited on the ground whether the accused had asked for water or not.With respect to retraction of the confessions by all the accused persons on the same day after a month, it is apparent from the reasons recorded by the court that they have given different reasons for retraction. The court has individually heard each and every accused. A-1 has stated that his signatures had been obtained on the blank papers. A-2 has stated that was a fact that under fear of encounter, he has given the statement. A-2 says that confession has been forcibly obtained. A-4 says that he was forced to make the confession. Similar is the statement of A-5. A-6 says that he has not given any confessional statement, his signatures have been obtained. A-7 says that by hook or crook, he was asked to make this confession and was forced to make it. A-8 says that he was forced to make a confession. When he refused to sign, blinds were applied for 2 days. A- 9 says that confession is forcible, he was compelled to sign. He signed the written confession. A-12 says that his confession was forcible and was obtained under threat. A-13 also made a similar statement. Thus, it is apparent that the accused persons have not retracted their confession at first opportunity when they were produced. Reasons behind retraction also do not inspire confidence. The details with which the confessional statements have been recorded after the observance of due safeguards and other corroborative evidence on record are indicative of the fact that reasons for retraction, as stated, are not correct. There is no allegation that they were tortured by the police. In the absence of the same, it does not inspire confidence that they have signed on blank papers, etc. There was a general statement that they were under fear made by some of the accused persons. The fact remains that the statements have been recorded by the S.P., a high ranking officer as envisaged under section 32 which cannot be lightly discredited in the facts and circumstances of thethere was no mal-treatment, no manifest complaint of torture, confession appears to be voluntary and all the accused persons were sent to judicial custody. Subsequent retraction of confession is of no consequence, the same is anour opinion, the non-recovery of a water bottle from the car is not at all material as it had nothing to do with the offence in question. Every material found in the car was not required to be seized. The witness PW-55 has also said that Haren Pandya drank water from the bottle. There is no contradiction as sought to be made out on behalf of the learned counsel appearing for A-1.Confession of A-1 (Mohmed Asgar Ali) has been supported by various other evidence on the record like phone calls, recovery of the weapon, vehicle, hiring of rooms, etc. It was submitted that conduct of A-1 (Mohmed Asgar Ali) as stated in the confession does not inspire confidence. There is no conceivable reason for preserving cartridge case and weapons and spending time which must be precious to a murderer for escaping from the spot. It was not reasonable for the accused to preserve empty cartridges. There was the possibility of their recovery from the place of occurrence. In case he had thrown them at the place of occurrence, as such, in our opinion, it was not unusual for accused A-1 to carry them and he wanted to run away from the spot also as such he did not waste time in throwing them on spot and leave the evidence.In our opinion, it makes hardly any difference of one or two minutes when it is possible to travel the distance from where the calls were made by A-1 to A-14 in a few minutes and from distance of 15 to 17 km. calls in 45 minutes. Cell phone location also supports the ocular version and lends credence to the fact that murder had taken at the place near Law Garden. In addition, for tracking A-1 (Mohmed Asgar Ali), a landline at Nalgonda was used. It was proved that A-1 used phone No.9825494251. In the confession also, the number has been stated. Even on the next date of the incident, the phone was used by A-1, stands established by the prosecution.In view of overall evidence against him, we are of the view that his acquittal by High Court for murder of Haren Pandya and POTA offence deserves to be set aside and conviction and sentence as ordered by Trial Court is restored.It is thus apparent that A-5 played a vital role at all stages of conspiracy, right from the very inception, extending to the murder of Haren Pandya and the subsequent abscondment of various accused, including himself. He was present in several meetings at various Masjids where different aspects of the conspiracy were hatched and put into operation. He played a crucial role in the procurement, handling, and storage of the illegally procured arms. 7.65 mm pistol was in fact discovered and recovered at his instance. No great significance can be attached to PW-69 not supporting the prosecution. First of all, this witness was A5s first cousin. Secondly, his Section 164 CrPC statement is on record. No complaint to any authority was ever made that this statement was forcibly extracted.He was, thus, rightly convicted and sentenced by the Trial Court for commission of offence under section 3(1) r/w 3(3) of POTA as well as 120B and 120B read with 302 IPC for commission of offence of murder of Haren Pandya. The same is restored.In our view, the submissions on behalf of the accused are baseless. Alpesh Ranchhodbhai Patel (PW-11), SrinathSinh ShambhauSinh (PW-13), Manojkumar Baldevbhai (PW-17), Hemantkumar Ratilal Patel (PW-33) and Rajendra Singh S. Chhikara (PW-110) are the witnesses to corroborate the confessional statement. They are also witnesses to the recoveries of SIM cards. Alpesh Ranchhodbhai Patel (PW-11) and Manojkumar Baldevbhai (PW-17) are the witnesses of BSNL SIM cards, which were used during an incident to remain in contact with each other. Discovery of 7.5 mm pistol bearing no.EE330 at the instance of A-1 (Mohmed Asgar Ali) from Flat No.4/B, Kamar Flats was from Batiwala stove and Srinathsinh Shambhausinh (PW-13) was the witness of that discovery. In his testimony, he had discussed at length A-1 (Mohmed Asgar Ali) had hidden two weapons given to him by the accused. Jayantibhai Vitthaldas Suthar (PW-27) had proved the landline number at the house of A-6 (Mohmed Yunus Sareshwala) at A/12, Sunrise Apartment, Juhapura, and the said fact had also been admitted by A- 6 (Mohmed Yunus Sareswala). Record of mobile phone location also revealed the incriminating circumstances as proved by the evidence. Rajendra Singh S. Chhikara (PW-110) was present at Kamar Flat when the discovery was effected. Motorbike used during the commission of the offence was handed over to Javed Abdul Rashid Khan Pathan (PW-45), who turned hostile to the case of the prosecution. He had taken A-1 (Mohmed Asgar Ali) to spot and brought him back also and carried a weapon too. Keeping in view his proximity with rest of the group and his involvement in the conspiracy to kill Haren Pandya, the conviction and sentence awarded to A-6 (Mohmed Yunus Sareswala) by the Trial Court under Section 120B read with Section 302 IPC and under section 3(1) and 3(3) of the POTA, is found to be appropriate.It was submitted on behalf of accused by Shri Raju Ramachandran, learned Senior Counsel that there was no necessity to escort A-6 (Mohmed Yunus Sareshwala), who is a local resident of Ahmedabad. The CDR (Exhibit 310) has failed to show the location of the number which was being used by A-7 (Rehan Puthawala) on 26.3.2003 and the CDR was inadmissible in evidence.The allegation against the accused was far from the truth and also baseless. The evidence of Shaikh Mohmed Riyaz Hussainmiyan Pirmiyan (PW-52) is fraught with infirmities. There is a doubt as to whether A-7 (Rehan Puthawala) approached him for a false number plate of the motorcycle. The receipt produced contains no name and he has erased Splendor and written Yamaha against the entry of number 5189, whereas it is his original case that he was asked to prepare a number plate for Yamaha which was later changed to Splendor. The job book is recovered on 22.5.2003 whereas he has not stated that CBI has come to his shop before 23.5.2003. The statement is typed on a computer, but there is no computer at the shop of Shaikh Mohmed Riyaz Hussainmiyan Pirmiyan (PW-52) and he has not been confronted with number plate in the court as a material object to identify as the one made at the behest of A-7 (Rehan Puthawala).In our opinion submissions are baseless. There is no reason for Shaikh Mohmed Riyaz Hussainmiyan Pirmiyan (PW-52) to speak lie and it is apparent that he is a reliable witness and that the fake number plate of motorcycles had been got prepared by the accused was recovered and it was used at the time of the commission of the offence. Shaikh Mohmed Riyaz Hussainmiyan Pirmiyan (PW-52) is categorical about A-7 (Rehan Puthawala) and A-8 (Mohmed Riyaz) having approached him for a number plate. It was at the instance of A-7 (Rehan Puthawala) and A-8 (Mohmed Riyaz) CBI officers came to know of the place where number plates have been prepared. The motorcycle was stolen one and fake number plates have been discovered from the bushes near Tarapur Highway. It was A-10 (Parvez Khan Pathan) who left the motorcycle at Tarapur Highway in the bush. The recovery of the motorcycle is proved by Bhagwan Singh Rathod (PW-50) corroborated by Alpesh Ranchhodbhai Rathod (PW-86 - the panch witness) and by deposition of Investigating Officer, CBI and Dr. Sushilkumar S. Gupta (PW-120). The vehicle was used in killing Haren Pandya and the fake number plate was put by the accused so as to save themselves from the clutches of law and prevent identification. The guilt stand proved against the A-7 (Rehan Puthawala) as found established by the Trial Court.The conviction and sentence imposed by the Trial Court on Rehan Puthawala is found to be proper under section 3(1) and 3(3) of POTA as well as section 120B r/w section 302 IPC for commission of murder of Harenis very incredulous that prior to receiving of Court summons, this witness had no knowledge of what it was that occurred, neither did he make any inquiries in relation to A-8 (the son of DW3?s neighbour). Equally, he is himself unsure of the exact date. Therefore, even if, arguendo, his version was to be believed, it would still not dent the prosecution. Thus, there is nothing to suspect arrest of A-8.As for the discrepancies alleged in the format of the call records, these would not go to the falsify the prosecution?s case. At the time of his arrest, SIM Card was found from his pocket. Mobile Nos. 9426007240 and 9825384241 (Hutch) belonged to A8, along with mobile phone bearing IMEI No. 448478527477630). In view of the evidence on record, A-8 (Mohmed Riyaz @ Goru) had rightly been convicted and sentenced by the Trial Court for commission of offence under section 3(1) read with section 3(3) of POTA as well as under section 120B and 120B read with section 302 IPC for commission of murder of Haren Pandya. The same is restored.There is no substance in the aforesaid defence arguments. The defence did not ask for a recall of PW-21 to cross-examine him as to aforesaid aspects. Even if medical papers were produced late, nothing prevented the defence from asking for his recall. It cannot thus be concluded that PW-21 perjured himself. In fact, PW-21 was duty- bound to refer the accused persons for medical check-up every 48 hours. The outer time-limit for medical examination is provided for under D.K. Basu Guidelines. Bonafide compliance of this mandate cannot be held to be against prosecution?s case. It is to be also kept in mind that during the reflection time of 60 hours given to A-9, he was not sent for medical examination. A perusal of Ex. 772 shows that A-9 was last sent to Civil Hospital on 03.06.03 at 9.35 am. This aspect also throws light on the necessity for sending A-9 for medical check- up on 07.06.03.Lastly, the defence contention of forcible extraction of confession is also to be noted, if only to be rejected. There is no proof of the alleged torture. There is no medical evidence substantiating the same. On the other, sufficient corroboration is available for A-9?s confession. Considering the overall evidence, the Trial Court convicted and sentenced him rightly under section 3(1) read with section 3(3) of POTA as well as 120B IPC and 120B read with 302 IPC also for commission of murder of Haren Pandya. The same isaforesaid evidence clearly proves the role of A-10 (Parvez Khan Pathan) in the conspiracy to murder Haren Pandya and he has been rightly convicted by the Trial Court under POTA and for murder of Haren Pandya.It was urged on behalf of accused persons that FIR of such incident registered belatedly is doubtful. The submissions though attractive have no legs to stand.It is apparent that car was parked at Chitty Bang near Law Garden and the glasses of the car of Haren Pandya were dark and rolled up considerably and in the process of firing he fell down on the side seat. Obviously, in order to save himself, he tried to lie down and bullets were fired at him constantly one after the other by A-1 (Mohmed Asgar Ali). In the process, his legs came up. As the glasses were dark, obviously it was not possible for others to take note of the fact that Haren Pandya was lying killed in the vehicle. The eye witness - Anil Yadram Patel (PW-55) has gone to inform the owner of Chitty Bang and by the time he could come back, police had arrived at the spot and were taking Haren Pandya to Hospital. This explains the so-called delay and explains the situation of the spot and due to dark glasses, it may not have been possible for the passer-by immediately to take note of the fact that as to what had happened inside the car, which was parked on the side of Chitty Bang. Thus, the submission on behalf of accused persons cannot be accepted and the evidence discloses that family members of Haren Pandya, his P.A., and other political leaders had also arrived in the meantime at the spot on coming to know of theTrial Court has convicted A-2 (Mohmed Raouf) under Section 3(3) of POTA and sentenced him to 7 years rigorous imprisonment and the High Court has also confirmed and maintained the conviction as well as the amount of fine i.e., Rs.10,000/-. The sentence of rigorous imprisonment has been modified to the period already undergone in jail i.e., 5 years. Against the decision of the High Court, the CBI is in appeal. The minimum sentence is 5 years under Section 3(3) of POTA and by now 8 years have passed and the accused has already undergone little more than 5 years. No case for further interference is called for as CBI did not prefer an appeal against the judgment and order of the Trial Court. The decision of the High Court as to conviction and sentence under POTA is affirmed.Though, in the instant case, the trial court has found that attempt on the life of Jagdish Tiwari and the murder of Haren Pandya has been committed in the method and manner as per prosecution case. However, with regard to present accused M.J. Sheikh, it has been held that the prosecution has not been able to prove his guilt beyond the periphery ofthe case, accused persons were acquitted. Azam Khan has stated that Sohrabudin had told him that the contract to kill Haren Pandya had been given to him by IPS Officer G.D. Vanzara and that Sohrabuddin?s associate Tulsiram Prajapati along with one Naeem Khan and Shahid Rampuri murdered Haren Pandya. Azam Khan?s statement has been placed on record as Annexure P-1 on the basis whereof a news report had been carried out by the Indian Express on 5.11.2018 filed as Annexure P-2. Ajam Khan has revealed that he had given the information to the CBI in 2010. The CBI did not pay any heed to this information.As the writ petition has been filed on 22.1.2014 when this Court was finally hearing the criminal appeals with effect from December 2018 and most of documents and grounds taken are similar as such, during the course of hearing we asked Mr. Prashant Bhushan, learned counsel appearing on behalf of the petitioner that when criminal appeals were being heard by this Court at that time on the basis of almost the same grounds why PIL has been filed. In case it was felt necessary that further investigation is required, why an application was not filed seeking further investigation or re-investigation in the matter by the concerned persons or by CPIL and how the very same documents have been obtained and filed in the petition which forms part of the criminal appeal. Mr. Prashant Bhushan admitted that certain documents have been supplied by learned counsel who is appearing on behalf of the accused persons/ respondents in criminal appeals. He had consultations with said counsel to file the petition. It was considered appropriate to file a separate petition.We are not happy the way in which the writ petition has been filed. It has been filed acting obviously in conjunction with the accused persons in the case as the counsel for accused has admittedly supplied the documents to the petitioner and had consultations. It was also pointed out by Mr. Tushar Mehta that presence of the counsel appearing on behalf of CPIL and one of them appearing for the accused, has also been recorded in the writ petition in the order dated 8.2.2019. A perusal of the order dated 8.2.2019 indicates that the presence of the counsel for an accused in criminal appeals has been recorded on behalf of the petitioner CPIL along with Mr. Prashant Bhushan and Mr. Rohit K Singh, advocates. Mr. Prashant Bhushan tried to explain the aforesaid position on the ground that his clerk has wrongly given the appearance of said learned counsel who is appearing on behalf of an accused person in criminal appeals. However, as admitted by Mr. Prashant Bhushan, the said counsel was associated with him in furnishing the information, documents, etc. Be that as it may. The fact is apparent that accused persons were instrumental in getting filed this writ petition for further investigation in the case. If the accused so wanted then they ought to have approached this Court by way of filing an appropriate application in the criminal appeals only and not by way of filing a PIL, that too through the CPIL. It cannot be said to be an appropriate way of filing a writ petition for further investigation, the motive is oblique, improper and against discipline, especially when the criminal appeals were being heard finally and this Court was in seisin of the matter and judgment has been reserved ultimately on 31.1.2019. At the relevant time when the petition was filed, obviously the petitioner CPIL was well aware of the hearing of criminal appeals and that fact has not been stated in the writ petition that criminal appeals were being heard on merits for the last several months w.e.f. 1.11.2018. It is shocking and surprising that the accused have resorted to the aforesaid method of getting filed the petition in guise of the PIL by supplying the documents to CPIL in their self-interest and virtually attacking the case of the prosecution on the same grounds and whatever new material has been filed, we will discuss the value of the same hereafter.Statement of Mohd. Azam Khan who was examined as a witness in Sessions Case No.177/2013 etc. has been relied on, it was stated by him that Sohrabuddin told him that Shahid Rampuri, Naeem Khan and he got a contract to kill Haren Pandya and they had killed him. He felt sad and told Sohrabuddin that they have killed a good person. Thereafter Sohrabuddin told him that this contract of killing was given by Mr. Vanzara. In our opinion, the aforesaid statement made by Azam Khan was totally out of the context of a criminal case in which he had deposed. It was clearly an attempt as an afterthought to make the statement as to some other matter irrelevant to controversy.Azam Khan has stated that CBI recorded his statement twice in the year 2010, but he was unable to give any reason for omission in his statement recorded by the CBI. Even otherwise the statement made after more than 15 years is wholly unreliable and an afterthought and was not connected with the matter in question in which it was made. Thus, it appears to be clearly a motivated one and bundle of falsehood as he could not give any reason for omission in the previous statement in which also this issue was not involved.A book by Ms. Rana Ayyub has also been relied upon in which it has been observed that Haren Pandya?s case is like a volcano. ?Once the truth is out, (xxx) will go home. He will be jailed.? The counsel has further relied upon an article in the Outlook based upon the statement of Mr. Vithal Pandya, father of Haren Pandya. It appears from that he entertained a doubt as to the actual killer, but with no material against anybody. The Book by Rana Ayyub is of no utility. It is based upon surmises, conjectures, and suppositions and has no evidentiary value. The opinion of a person is not in the realm of the evidence. There is a likelihood of the same being politically motivated, cannot be ruled out. The way in which the things have moved in Gujarat post- Godhra incident, such allegations and counter-allegations are not uncommon and had been raised a number of times and have been found to be untenable and afterthought.The High Court has further observed that non-examination of Jagrutiben is no ground for further investigation. The High Court has also observed that in the interview published in ‘Tehelka? on 19.8.2006, it is clearly admitted by Ms. Jagrutiben that she has no proof/material with respect to political rivalry. Only on allegation of political rivalry, further investigation or re-investigation cannot be ordered. The I.O. has stated that during the investigation he did not get any material with respect to political rivalry on the basis of the vague statement of Mr. Vithalbhai Pandya, father of deceased, further investigation was not possible to be ordered against political figures. The applicant has no material to substantiate the material of political rivalry. In the absence of material, there cannot be an order for further investigation or re-investigation. On merit, the applicant has failed to make out a case for further investigation or re-investigation.Coming back to Jagrutiben, she was not an eye-witness, admittedly, and has no personal knowledge and it is apparent from the report she has stated that the deceased left the house for a morning walk at around 0645 hours/0700 hours. Thus, the doubt raised in the newspaper report was that it would not have taken half an hour to reach the Law Garden. It would have taken 10 minutes to reach Law Garden. The submission of dropping of Jagrutiben is too tenuous to be accepted. She has not unfolded any story regarding the real assailants to be someone else and in case she would have been examined, her statement would have supported the case of the prosecution that deceased had left the house in the morning only for a walk. The assessment of the time may differ by 15 to 20 minutes also or even half an hour. On the basis of approximation of the time by Jagrutiben in the newspaper reports and on the basis whereof the happening at Law Garden at 7.30 a.m. cannot be doubted at all. Deceased Haren Pandya had as per her version left for Law Garden. She was not an eye-witness to be examined in the case. Thus, it cannot be said that the prosecution has withheld her and she would have unfolded any part story which was material to the case.The SLP against the aforesaid decision in the case of Vithal Bhai of the Gujarat High Court has been dismissed by this Court on 15.7.2009. This Court condoned the delay and dismissed the SLP. Thus, the order passed by the High Court that no investigation was warranted, has attained finality.Thus, it is apparent that the matter has attained finality. Again, in criminal appeals, we have examined the case on merits as the case relates to Haren Pandya, former Home Minister of Gujarat. In our opinion on merits in view of the material that has been placed on record including that of Azam Khan?s statement and Book by Rana Ayyub, no case is made out on the basis of material placed on record so as to direct further investigation or re-investigation. There is absolutely no material for that purpose. The matter has already attained finality due to the dismissal of SLP. Even otherwise the petition has been based upon reports in the newspapers/magazines. It has been observed by this Court in Kusum Lata v. Union of India, (2006) 6 SCC 180  that newspaper reports do not constitute evidence. This Court also observed that the writ petition should be dismissed with costs so that the message goes in the right direction that a petition filed by the oblique motive does not have the approval of courts.As we are deciding the criminal appeals along with the order, we have dealt with veracity of prosecution case and fairness of investigation in our opinion the observations made by the High Court were not only uncalled for but based on incorrect appreciation of medical/forensic evidence and ignoring material evidence on record.On behalf of the petitioner, reliance has been placed on A. R. Antulay v. Ramdas Sriniwas Nayak & Anr., (1984) 2 SCC 500  in which private complaint lodged by Shri R.S. Nayak was held to be maintainable against A.R. Antulay, the then Chief Minister. It was urged that any person can bring to the notice of the court the fact which constitutes the offence and a Special Judge can take cognizance on such complaint or even on information received from any person other than a police officer or upon his own knowledge of the fact that the offence has been committed.