Maulana
Naseeruddin Mohd. Haneefuddin Vs. State of Gujarat [2007] Insc 740 (17 July 2007)
Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
CRIMINAL APPEAL NO. 904 OF 2007 (Arising out of SLP (Crl.) No.2882 of 2006)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order passed by a Division Bench of
the Gujarat High Court dismissing the criminal Appeal filed by the appellant.
The said appeal related to the rejection of prayer for bail in connection with
Crime Register No.I-6 of 2003 registered with DCB (Crime Branch) Police
Station, Ahmedabad.
3. Factual position in a nutshell is as follows:
An FIR was lodged on 4.4.2003 with DCB Police Station, Ahmedabad, alleging
that a conspiracy was hatched by Mufti Sufiyan and Rasulkhan Party at Ahmedabad
and Hyderabad to commit murder of Hindu leaders through boys by imparting them
training in arms in Pakistan. The complaint was filed for the alleged
commission of offences punishable under Sections 120(B), 121, 121(A), 122, 123
of the Indian Penal Code, 1860 (in short 'IPC') and Sections 25(1) (b),(c), 27
and 29 of the Arms Act, 1959 (in short 'Arms Act').
Thereafter on 19.4.2003, in pursuance of report of police Inspector, Mr. M.M.
Vaghela, Sections 3(1)ab, 3(3), 4, 20, 2l(2)b, 22 (3) (a) (b) of Prevention of
Terrorism Act, 2002 (in short 'POTA') were added. The charge sheet was filed in
POTA Court qua the co-accused on 10.9.2003 wherein 39 accused were shown as
arrested and 43 accused as absconding. Confessional statements (28 in number)
were recorded during the remand period and statements of 43 witnesses were
taken. On 21.1.2004, supplementary charge sheet was filed showing 8 accused
including 7 absconding accused of first charge sheet as arrested and 7 new
accused were named as wanted and 5 statements under Section 164 of Code of
Criminal Procedure, 1973 (in short 'Cr.P.C.') were recorded and confessional
statements of 8 accused were attached. The appellant filed Special Criminal
Application No.377 of 2004 in the High Court for quashing of proceedings which,
according to the appellant is pending till date. The appellant was released on
bail in another offence at Hyderabad on health ground. Thereafter on 30.10.2004
he was arrested in connection with the present offence by the Gujarat Police.
He was produced before Special POTA Court on 2.11.2004 and was remanded till
9.11.2004.
Request for further remand was rejected and the appellant was sent to
judicial custody. Charge sheet qua the appellant was filed in Special POTA
Court on 27.1.2005. The appellant moved an application for bail being Crl.
Misc. Appln. No.762 of 2005. However, it was rejected by the learned Special
(POTA) Judge, vide order dated 24.5.2005. Questioning the same, appeal was
filed before the High Court.
4. Before the High Court, it was contended that there is no evidence against
the present appellant except the alleged confessional statement recorded on
7.11.2004 by the DCP.
The confessional statement, it was contended, is unsustainable in law and it
was neither in the language known to the appellant nor was it in his hand
writing. The confessional statement was recorded in Hindi. In any event, the
confessional statement was retracted by the appellant which goes to show that
the said confessional statement is concocted with the sole object to involve
the appellant falsely in the offence and hence no reliance should be placed on
it.
The appellant never provoked or instigated any youth to go to Pakistan for
Jihad training. The prime accused have not stated in their confessional
statements of having been inspired by the speeches of the appellant and
reference to the appellant was not done by any witness. During the course of
police custody and remand no incriminating articles were recovered by the
investigating agency. Serious acts in the aftermath of Godhra was done by the
Rauf and not by the appellant and in the absence of any prima facie material
there was no basis for keeping him in custody.
5. The stand of the State on the other hand was that there is a confessional
statement of the accused recorded under Section 32 of POTA. It is the appellant
who inspired young boys to take Jihad training in Pakistan. There is nothing on
record to indicate that there was any coercion for giving the confessional
statement. The belated retraction is nothing but afterthought. It was not done
within the time stipulated and therefore the appellant is not entitled to be
released on bail.
6. The High Court found that the learned special Court had elaborately dealt
with various aspects of the case relating to appellant. During the course of
investigation confessional statement was recorded by DCP, an authorized officer
under Section 32 of the POTA which is part of the charge sheet. The same was
retracted after about 40 days by sending letter to the Special POTA Court
through the jail authorities.
According to the High Court even if the confessional statement recorded
under Section 32 was retracted, same can be considered as a piece of evidence
at the time of deciding the bail application. Further the retraction was not
done within the stipulated time. The High Court was of the view that the
learned Special Court was justified in refusing the bail application.
7. The stands taken before the High Court were reiterated before this Court.
It was submitted by learned counsel for the appellant that the FIR relates to
the incidents allegedly taking place between the period from April, 2002 to
April, 2003.
8. In the FIR name of the present appellant-Maulana Naseeruddin was not
indicated. Charge sheet was filed before the POTA Court on 10.9.2003, where
names of 82 persons were indicated; out of them 39 have been arrested and 43
were stated to be absconders. On 28th October, 2003 confessional statements
were recorded during appellant's remand and 43 witnesses were examined under
Section 164 of the Cr.P.C. The appellant was arrested in terms of Section 151
Cr.P.C. and was granted bail in October, 2004. On 21.1.2004 a supplementary
charge sheet was filed. Appellant's name was shown in Column 2 as accused No.40
as an absconded accused in addition to those who were originally shown as
absconders. The confessional statement was purportedly recorded on 7.11.2004 in
Hindi. In between, several applications had been filed but there is no mention
about the then so called retraction of confessional statement. On 27.1.2005,
additional charge sheet had been filed.
9. It was further submitted that on retraction confession cannot be treated
as a relevant substantial evidence. Further, the medical records and documents
were not looked into.
10. Learned counsel for the State on the other hand submitted that initially
there was a petition filed under Section 482 of Cr.P.C. before the Gujarat High
Court and one SLP had also been filed and the same was subsequently withdrawn.
The trial court's records have been sent back and the trial has commenced on
18.1.2006.
11. It is to be noted that the Special POTA Court had directed the jail
authority to refer to the appellant to Civil Hospital and on advice of the
expert to get him examined and if required, admit him to the Civil Hospital for
the period as may be prescribed by doctors. The experts have expressed the view
that he can be treated as an outdoor patient by examining him at the Civil Hospital.
12. It is no doubt true that there is no time statutorily fixed during which
the confessional statement, if any, can be retracted; but it has to be done
within a reasonable time.
13. Considering the various factual aspects highlighted by the trial Court
and the High Court, we do not think this to be a fit case where bail can be
granted to the appellant.
14. Order of the learned Special Court, POTA as affirmed by the High Court
cannot be faulted and no interference is called for.
15. Accordingly, the appeal is dismissed. However, it would be in the
interest of all concerned if the trial is completed expeditiously.
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