State Of Maharashtra vs Kamal Ahmed Mohd. Vakil Ansari & Ors

3. The prosecution case (in Special Case No.21 of 2006) in brief is, that bombs were planted on 11.7.2006 in seven different first class compartments of local trains of Mumbai Suburban Railways by the Students Islamic Movement of India (hereinafter referred to as “the SIMI”). SIMI is a terrorist organization, the accused-respondents are allegedly its members. According to the prosecution, the accused-respondents had conspired to plant bombs at Mumbai’s local trains to create panic in furtherance of terrorist activities being carried out by the SIMI in India.

4. Having examined its witnesses, and having placed on the record of Special Case No.21 of 2006, the necessary exhibits, the prosecution closed its evidence on 4.4.2012. Thereafter, witnesses were examined in defence by the accused-respondents. On 19.7.2012, accused Nos.2, 6, 7 and 13 filed an application (at Exhibit 2891) praying for issuance of summons to 79 witnesses named therein. On 24.7.2012, the accused-respondents filed another application (at Exhibit 2914), again for summoning defence witness. The application filed by the accused-respondents, inter alia, included the names of the following witnesses :

5. To appreciate the reason for summoning the witnesses at serial nos. 63 to 66, it is necessary to refer to some more facts. As against the accusations contained in Special Case no.21 of 2006, referred to above, in another MCOCA Special Case no.4 of 2009 (hereinafter referred to as ‘Special Case No.4 of 2009’), it was alleged by the prosecution, that the accused therein were members of the Indian Mujahideen (hereinafter referred to as “the IM”). The IM is also allegedly a terrorist organization, blameworthy of such activities within the territorial jurisdiction of India. The investigating agency had been claiming, that all bomb blasts in Mumbai since the year 2005 had been carried out by the IM. During the course of investigation in Special Case no. 4 of 2009, some of the accused therein (Special Case no. 4 of 2009) had confessed that they, as members of the IM had carried out bomb blasts, in Mumbai Suburban trains on 11.7.2006. In fact, ‘the accused Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah’, in Special Case no.4 of 2009, had made these confessional statements under Section 16 of the MCOCA. The confessional statement of Sadiq Israr Shaikh was recorded by Vishwas Nangre Patil, Deputy Commissioner of Police (witness at serial no.64). Likewise, the statement of Arif Badruddin Sheikh was recorded by Miland Bharambe, Deputy Commissioner of Police (witness at serial No.65). And, the statement of Ansar Ahmad Badshah was recorded by Dilip Sawant, Deputy Commissioner of Police (witness at serial No.66). Chitkala Zutshi, the then Additional Chief Secretary, Home Department (witness at serial No.63) had granted sanction for the prosecution of the aforesaid accused in Special Case No.4 of 2009 on 21.2.2009, by relying interalia on the confessional statements made by Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah. The accused (respondents herein) desire to produce the witnesses at serial nos. 63 to 66, to establish their own innocence.

66. Dissatisfied with the order dated 1.8.2012, the accused-respondents preferred Criminal Appeal No.972 of 2012 before the High Court of Judicature at Bombay (hereinafter referred to as ‘the High Court’). The High Court by its order dated 26.11.2012 allowed the appeal preferred by the accused-respondents. The operative part of the aforesaid order dated 26.11.2012, is being extracted hereunder :

respondents press for summoning the witnesses at serial nos. 63 to 66 as defence witnesses. The object for summoning the aforesaid witnesses is, that the witnesses at serial nos. 64 to 66 had recorded the confessional statements of Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah during the course of investigation in Special Case no. 4 of 2009. Based interalia on the aforesaid confessional statements, the witness at serial no. 63 had accorded sanction for prosecution of the accused in Special Case no. 4 of 2009. The object of the accused-respondents (of producing these witnesses in defence) is to show, that others are responsible for actions for which the accused-respondents are being blamed. It is relevant to pointedly notice, that the aforesaid confessional statements were not made by persons who are accused in Special Case no. 21 of 2006 (i.e. they are not co-accused with the accused-respondents). The first question for determination therefore would be, whether the confessional statements recorded before the witnesses at serial nos. 64 to 66, by persons who are not accused in Special Case no. 21 of 2006, would be admissible in Special Case no. 21 of 2006. The instant question will have to be examined with reference to the provisions of the Indian Evidence Act, 1872 (hereinafter referred to as, the Evidence Act) and the MCOCA. Alternatively, the question that would need an answer would be, whether the said confessional statements are admissible under Sections 6 and 11 of the Evidence Act not as confessional statements, but as “relevant facts”. The answers of the two alternate questions will have to be determined on totally different parameters, and under different statutory provisions. Both the questions are, therefore, being examined by us independently hereinafter.

10. Before venturing into the two alternate questions referred to in the foregoing paragraph, it is necessary to delineate a few salient features on which there is no dispute between the rival parties. It is not a matter of dispute, that confessional statements have been made during the course of investigation in Special Case no. 4 of 2009. The aforesaid confessional statements were made before the witnesses at serial nos. 64 to 66. The witnesses at serial nos. 64 to 66 were then holding the rank of Deputy Commissioners of Police (at the time when the confessional statements were recorded). The present appeal is a proceeding, emerging out of Special Case no. 21 of 2006. The accused in Special Case no. 4 of 2009, are different from the accused in Special Case no. 21 of 2006. Importantly, Special Case no. 4 of 2009, is not being jointly tried with Special Case no. 21 of 2006. The accused in Special Case no. 4 of 2009 (who had made the confessional statements under reference), are available. In other words, those who had made the confessional statements (Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah) before the witnesses at serial nos. 64 to 66, can be summoned to be produced in Special Case no. 21 of 2006, as defence witnesses, at the choice and asking of the accused- respondents (in Special Case no. 21 of 2006), for affirming or denying the correctness of the confessional statements made by them (before the witnesses at serial nos. 64 to 66). According to the learned counsel for the appellant, those who had made the confessional statements (Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah) before the witnesses at serial nos. 64 to 66, have since retracted their confessional statements. Insofar as the latter aspect of the matter is concerned, the same is neither acknowledged nor denied at the behest of the accused- respondents.

25. We shall now endeavour to delve into the second question, whether the confessional statements recorded by the three accused (Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah), in Special Case no. 4 of 2009, before the witnesses at serial nos. 64 to 66, are admissible in Special Case no. 21 of 2006, by producing the persons before whom the confessional statements were made (the witnesses at serial nos. 64 to 66) as defence witnesses, under the Evidence Act. On the instant aspect of the matter, the submission of the accused-respondents has been, that the same satisfy the test of being “relevant facts” under Sections 6 and 11 of the Evidence Act. We shall now record our conclusions separately for each of the aforesaid provisions.

30. It is not necessary for us to further examine, while dealing with the present controversy, whether a confessional statement of an occurrence could/would fall within the realm/expanse of the rule of “res gestae”, in a given exigency. We, therefore, refrain from recording any conclusions thereon, while dealing with the instant controversy, because such an issue does not arise herein.

(6) or is made in will or deed relating to family affairs -

When the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait, or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised.

Illustrations

(b) The question is as to the date of A's birth.

(d) The question is, whether a ship sailed from Bombay harbour on a given day.

(f) The question is, whether A and B were legally married.

The statement of a deceased clergyman that he married them under such circumstances that the celebration would be a crime, is relevant.

(i) The question is, whether a given road is a public way.

section (1), explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him and such police officer shall not record any such confession unless upon questioning the person making it, he is satisfied that it is being made voluntarily. The concerned police officer shall, after recording such voluntary confession, certify in writing below the confession about his personal satisfaction of the voluntary character of such confession, putting the date and time of the same.

(4) Every confession recorded under sub-section (1) shall be sent forthwith to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate having jurisdiction over the area in which such confession has been recorded and such Magistrate shall forward the recorded confession so received to the Special court which may take cognizance of the offence.

45. For the reasons recorded hereinabove, we are satisfied, that the impugned order dated 26.11.2012 passed by the High Court deserves to be set aside. The same is accordingly hereby set aside. It is held, that it is not open to the accused-respondents to produce the witnesses at serial nos. 63 to 66 in order to substantiate the confessional statements made by Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah (the accused in Special Case no. 4 of 2009), who are not accused/co-accused in Special Case no. 21 of 2006 (out of the proceedings whereof, the instant appeal has arisen).

46. Appeal stands allowed.

March 14, 2013.