State Of Maharashtra vs Abu Salem Abdul Kayyum Ansari & Ors

2. The aforesaid question arises in this way. A certain Pradeep Jain (builder) was allegedly eliminated by hired gangsters on March 7, 1995 and his brother Sunil Jain was attempted to be killed on that day for not succumbing to the pressure of parting with their landed property situate in Mumbai A crime being CR No. 145 of 1995 was registered with D.N. Nagar Police Station, Mumbai. After completion of investigation, initially few persons were arrested and they were charge sheeted and tried for the offences punishable under Sections 302, 307, 120B, 23, 114 IPC, Sections 3, 25(1B)(a), 5, 27 of the Arms Act and Sections 3(2)(i), 3(2(ii), 3(3), 3(5), 5, 6 of TADA Act by the Judge, Designated Court, Mumbai. The present respondents could not be tried as they were absconding. The Judge, Designated Court, vide judgment dated August 5, 1997 acquitted the accused who were tried. The State of Maharashtra carried appeal in the matter before this Court and vide judgment dated July 11, 2001, this Court partly set aside the judgment of the Judge, 2 Designated Court, Mumbai and convicted some of the accused who were tried.

3. On September 18, 2002 Abu Salem Abdul Kayyum Ansari (respondent No. 1) and one Monika Bedi were arrested in Portugal. They were extradited and brought to India. The extradition was granted for respondent no. 1 in respect of Pradeep Jain murder case, Bombay Bomb Blast case and Ajit Diwani murder case. On November 11, 2005, as soon as the respondent no. 1 was brought to India, he was arrested by Central Bureau of Investigation (CBI) in Bombay Bomb Blast case and later on he was taken into custody by Anti Terrorist Squad, Mumbai in connection with Pradeep Jain murder case. The respondent no.1 was charged along with Mohd. Naeem Abdul Rahim Khan (respondent no. 2), Riyaz Ahmed Siddique (respondent no. 3), Mohd. Hassan Mehendi Hassan (respondent no. 4) and Virendrakumar Biharilal Jhamb (respondent no. 5), having conspired in Dubai with few others to murder Pradeep Jain and that in pursuance of this conspiracy, Pradeep Jain was murdered on March 7, 1995. On April 28, 2006, the police submitted charge sheet against the present respondent nos. 1 to 5 and accordingly TADA Special Case No. 1 of 2006 began before the 3 Court of Designated Bombay Blast Cases, Greater Mumbai (for short, `Designated Court') .

4. On July 3, 2006, the respondent no. 3 (Riyaz Ahmed Siddique) addressed a letter to Assistant Commissioner of Police, Anti Terrorist Squad (I.O.) expressing his desire to disclose truly and fully the facts pertaining to conspiracy which had taken place at Dubai in connection with the murder of Pradeep Jain.

5. On July 7, 2006 the Investigating Officer made an application under Section 307 Cr.P.C. before the Designated Court that the respondent no. 3 may be tendered pardon on his readiness and willingness to disclose true and correct facts about the conspiracy hatched by them for the murder of Pradeep Jain.

6. On July 18, 2006 the Designated Court tendered pardon to the respondent no. 3 under Section 307 Cr.P.C. and permitted the prosecution to examine him as witness in the trial. In that order, the Designated Court noted that the approver is supposed to depose true and correct facts pertaining to the crime and that he (approver) has accepted the pardon with that condition.

7. On September 18, 2008, the respondent no. 3 (approver) was called as witness for the prosecution; he went into the witness 4 box to give evidence but after some time, he requested the Court to adjourn the matter as he was observing Ramzan fast and feeling weak. The next day i.e. September 19, 2008, further deposition of approver began but the Special Public Prosecutor realized that witness was not desirous of telling the Court about conspiracy that led to the murder of Pradeep Jain. The Special Public Prosecutor put a specific question to the approver as to whether he wanted to tell the Court about the conspiracy of Pradeep Jain murder to which his answer was in the negative. Immediately, the Special Public Prosecutor issued a certificate under Section 308 Cr.P.C. that the approver has not complied with the condition on which pardon was tendered to him and, therefore, he may be tried separately. The order dated September 19, 2008 to the extent it is relevant reads as follows:

23. Article 20(3) of the Constitution protects an accused from being called or compelled to be witness against himself.

25. The appeal is allowed as indicated above.

...........................J. (P. Sathasivam) .....................

NEW DELHI.