Bombay High Court
Afroz Firoz Mujawar vs The State Of Maharashtra on 4 December, 2012
Author: Abhay M. Thipsay
Bench: Abhay M. Thipsay
1
BA1608-12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
CRIMINAL BAIL APPLICATION NO. 1608 OF 2012
AFROZ FIROZ MUJAWAR
@ DASTAGIR .. APPLICANT
VERSUS
THE STATE OF MAHARASHTRA .. RESPONDENT
Mr. Mubin Solkar i/b Ms. Tahera Qureshi, Advocate for the
applicant
Mr. P. S. Hingorani, APP for the State
CORAM:-ABHAY M. THIPSAY, J.
DATED : 04/12/2012 P.C. Heard Mr. Solkar, learned counsel for the applicant and Mr. Hingorani, learned APP for the State.
2. The applicant is the accused No. 19 in MCOC Act Special Case No. 4 of 2009 pending before the Special Court under the MCOC Act, at Mumbai. There are totally 23 accused 1/22 ::: Downloaded on - 06/01/2014 03:15:33 ::: 2 BA1608-12 in the said case.
3. The applicant is in custody since 4/10/2008. Admittedly the trial has not commenced. Even the charge has not yet been framed.
4. The learned counsel for the applicant submits that the case of the present applicant is on par with that of accused No. 9 Mohd. Atik Mohd. Iqbal, who was released on bail by this court (Criminal Bail Application No. 1047 of 2011, decided on September 24, 2012). He, therefore, submits that on the same reasoning and on the same basis, the present applicant also deserves to be released on bail.
5. Since it is not in dispute that the case of the applicant is almost on par with that of the said accused, who has been released on bail as aforesaid and that the facts of the case, as mentioned in the said order and the reasoning thereof squarely applies to the case of the present applicant also, it would be convenient to reproduce the relevant part of the said order here, 2/22 ::: Downloaded on - 06/01/2014 03:15:33 ::: 3 BA1608-12 as a part of this order.
7. The prosecution case in brief, may be stated as follows:-
That, on 26 July 2008, a series of bomb blasts occurred in Ahmedabad, State of Gujarat, causing wide destruction, panic and loss of human life. The bombs - at least some of them - had been planted in motor cars. A few minutes prior to the blast, the television channels and media had received an e-mail, purportedly from an Organization called as 'Indian Mujahideen' warning that such a series of blasts would occur. The investigation into the case of the said bomb blasts was undertaken, and that has been carried out separately. Additionally, the Crime Branch of the Mumbai Police also started searching for the persons who had sent the so called 'terrorist e-mail' and the persons who had stolen the cars in which bombs had been planted. It is this investigation which resulted in the 3/22 ::: Downloaded on - 06/01/2014 03:15:33 ::: 4 BA1608-12 arrest of the 23 persons, that has given rise to this case.
8. After investigation, a charge-sheet came to be filed.
It is in respect of the following offences:-
Offences punishable under sections 295A IPC, 505(2) IPC, 507 IPC, 506(II) IPC, 120(B) IPC, 121, 122 and 286 of the IPC, offences punishable under section 25 read with section 3 of the Arms Act, offences punishable under the Explosives Act, and Explosive Substances Act 1908, the offences punishable under section 13(1)(a)(b), 16, 18, 19, and 20 of Unlawful Activities (Prevention) Act, 1967 (hereinafter for the sake of brevity "the UAP Act") read with section 66 of the Information Technology Act, and the offences punishable under section 3(1)(ii), 3(2), 3(4) of the MCOC Act, 1999.
9. It is not in dispute that the present case is not in 4/22 ::: Downloaded on - 06/01/2014 03:15:33 ::: 5 BA1608-12 respect of the bomb blasts, that took place in the city of Ahmedabad and Surat. It is also not in dispute that the case is also not in respect of the theft of the cars which were used for planting the bombs.
10. The case basically arises out of and because of the threatening e-mail sent by the Organization 'Indian Mujahideen'. It is alleged that the said Organization had given a threat to the police and that it had outraged religious feelings, thus creating tension between Hindus and Muslims.
11. As regards the role of the applicant in the alleged offences, it is nobody's case that he is the person who had sent the e-mail in question.
12. The substance of the allegation against him is, that he is a member of an Organized Crime Syndicate, and further that he is a member of a Terrorist Organization 5/22 ::: Downloaded on - 06/01/2014 03:15:33 ::: 6 BA1608-12 within the meaning of clause (m) of Section 2 of the UAP Act.
13. The basis for claiming the applicant to be a member of an Organized Crime Syndicate, and also of a Terrorist Organization, is his alleged association with some of the other accused in this case. This association is sought to be established only on the basis of confessions of the co-
accused which have been recorded in accordance with the provisions of section 18 of the MCOC Act. 13 out of the total 23 accused are said to have confessed, out of which six are said to have implicated the applicant.
14. With the assistance of the learned counsel for the applicant and the learned APP, I have gone through the said confessions of the co-accused.
15. In his confession, the Accused no.6 - Asif Shaikh has named the applicant as one of the persons with whom the 6/22 ::: Downloaded on - 06/01/2014 03:15:34 ::: 7 BA1608-12 said co-accused had discussions. These discussions were held apparently by being disturbed due to the demolition of Babri Masjid and the incidents of killing Muslims. The object of these discussions is said to be propagating the idea of 'Jihad'. The only role attributed to the applicant in the said confession is that he was present during such discussions. Significantly, this confession itself indicates that the applicant did not go to Bangalore for taking the training for 'Jihad' that had been allegedly planned.
16. The confession of the Accused no.10 - Akbar Ismail Choudhary indicates that the present applicant and others were got mentally prepared for 'Jihad'.
17. The confessions of the Accused no.11 Anik Sayyed and Accused No.17 - Ahmed Bawa show that after the blast, a dinner party was arranged by wanted accused Iqbal and Riyaz Bhatkal, and that the applicant was one of 7/22 ::: Downloaded on - 06/01/2014 03:15:34 ::: 8 BA1608-12 the invitees who had attended the said dinner party.
18. In his confessions, the Accused no.20 - Fazal Rehman has named the applicant, and has said that he and others used to share the knowledge of Quran and Hadis, and used to have discussions about 'Jihad'.
19. In his confession, accused No.21 - Anwar Bagwan has said that he and others had prepared the applicant and others for Jihad. Even as per the version of this accused, the applicant did not actually undergo the Jihadi training.
20. I have carefully considered the matter.
21. Undoubtedly, the confessions of the co-accused recorded under the provisions of section 18 of the MCOC Act would be admissible against the applicant during his trial. They are to be treated as substantive evidence against the applicant.
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22. However, the question is whether these confessions indicate that the applicant is an active member of 'Indian Mujahideen' and has committed any offences to give effect to the alleged aims and objects of the said organization.
23. In my opinion, the answer has to be in the negative.
24. It needs to be noted is that the basic allegation against the applicant is, of his being a member of 'Indian Mujahideen'. In the course of hearing, it transpired that on the date of the alleged incidents, ' Indian Mujahideen' was not a Terrorist Organization as contemplated under the UAP Act. Clause (m) of section 2 of the UAP Act lays down that a Terrorist Organization means an Organization listed in the schedule, or an Organization operating under the same name as an Organization so listed. Indian Mujahideen was added in the schedule only 9/22 ::: Downloaded on - 06/01/2014 03:15:34 ::: 10 BA1608-12 on 4 June 2010. The acts on the basis of which the present case has been registered have all taken place prior to that. There is no allegation that the applicant continued to be a member of the said Organization even after it was banned, and as pointed out by Mr.Solkar, such an allegation could not have been sensibly leveled, inasmuch as the applicant is in custody since 4 October 2008 .
25. The question is whether the applicant can be said to be a member of an Organized Crime Syndicate. The object behind an Organized Crime is quite different from the object of a Terrorist Organization. It would be difficult to imagine that an organization can be fitted in both the categories by virtue of the same acts, and in the same set of facts. It is extremely doubtful whether the Organization 'Indian Mujahideen', as per the prosecution's 10/22 ::: Downloaded on - 06/01/2014 03:15:34 ::: 11 BA1608-12 own version about its aims and objects, can be called as Organized Crime Syndicate under the MCOC Act. Since I am dealing only with the question of bail, a thorough discussion on what constitutes an Organized Crime Syndicate need not and should not be undertaken for the present and the matter may be left at that. What, however, needs to be observed is that no continuing unlawful activity undertaken by the Organized Crime Syndicate called as 'Indian Mujahideen' in the preceding 10 years could be pointed by the learned APP. In any case, prima facie there is no material to suggest any continuing unlawful activity as defined in Section 2(d) of the MCOC Act on the part of the said Organized Crime Syndicate.
26. This is apart from the fact that mere presence during certain discussions held by the members of the 11/22 ::: Downloaded on - 06/01/2014 03:15:34 ::: 12 BA1608-12 said Organization, and even attending a dinner party hosted by them, cannot, by itself, amount to the membership of an Organized Crime Syndicate, or for that matter, of a Terrorist Organization. The issues which were allegedly being discussed by the members of the 'Indian Mujahideen' were very broad, and it is possible for a person to take part in such discussion, and even to express his or her own views on such matters. That would not make such a person a criminal unless it would be shown that he has taken some active part towards achieving the so called objects of the Organization by unlawful means or by resorting to violence. In the instant case, there is no such material against the applicant. Mere association with the members of the alleged Organized Crime Syndicate, without any direct nexus to the actual activities of such Syndicate or participation in some form in the 12/22 ::: Downloaded on - 06/01/2014 03:15:34 ::: 13 BA1608-12 criminal activities or offences being committed by such Syndicate, cannot attract criminal liability, even prima facie. Participating in the discussions undertaken by the members of Indian Mujahideen, which are of some concern to the Muslims, will not, by itself, make a person a member of Indian Mujahideen; and in any case, as aforesaid, Indian Mujahideen was not declared as a Terrorist Organization at the material time.
27. This reasoning applies in its entirety to the present applicant also.
28. Apart from these confessions the only other material against the applicant is the alleged recovery of 31 pieces of 'Timer Clocks' from the shop of the applicant. The allegation is that pursuant to a disclosure statement made by the said accused No. 9, Mohamed Atik, 31 pieces of 'Timer Clocks' were recovered from the shop of the present applicant under panchnama. Thus the only difference between the case of the 13/22 ::: Downloaded on - 06/01/2014 03:15:34 ::: 14 BA1608-12 accused No. 9 and the present applicant is that, while the recovery of 31 pieces of timer clocks was said to be at the instance of that accused, the recovery of the same material has taken place from the shop of the present applicant. In other words, the recovery of the timer clocks is said to be material against that accused as well as of present applicant with the difference that, so far as the said accused was concerned, the 31 pieces of timer clocks were not found in his possession, but that he had led police to the shop of the applicant from where the said 31 pieces of timer clocks were allegedly recovered.
29. It is alleged that similar type of timer clocks were used in the bomb blasts, that had taken place at Ahmedabad and Surat.
30. The said timer clocks by themselves cannot be said to be 'incriminating or objectionable articles'. They are admittedly, available in the market. No explosion is possible by such timer clocks without the use of explosives and detonators. The 14/22 ::: Downloaded on - 06/01/2014 03:15:34 ::: 15 BA1608-12 applicant or even any other accused in this case is not alleged to have been found in possession of any Explosives or detonators.
31. It is contended by the learned APP that the timer clocks had wires joined to them. Assuming it to be so, admittedly, that would not make such timer clocks 'incriminating article'. As aforesaid, no explosion on the basis of such objects would be possible.
32. The other circumstance against the present applicant is that certain books which contained objectionable matter were recovered from the shop of the applicant.
33. I have gone through the panchnama dated 4/10/2010, which, in addition to the seizure of the timer clocks, also records the seizure of 12 books/documents from the shop of the applicant. It is an admitted position that no orders u/s 95 of the Code of Criminal Procedure had been passed in respect of any of the books, or documents allegedly found with the applicant.
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34. While conceding that the case of the applicant is almost on par with that of the co-accused - accused No. 9 Mohamed Atik Mohamed Iqbal, who was released on bail as aforesaid, the learned APP submitted that the bail granted to the said accused has been challenged by the State of Maharashtra by approaching the Supreme Court of India. In view of the vehemence of the State in opposing the application for bail, though the applicant is in custody for a period more than four years and though the trial has still not commenced, I am inclined to add a few lines which I had not thought it necessary while disposing of the aforesaid bail application filed by the said accused No. 9 - Mohamed Atik Mohamed Iqbal.
35. It is well settled that while considering the question of bail not only the nature of allegation but also the nature and character of the material by which it is supported, needs to be taken into consideration. Though the material in the charge-
sheet is not to be meticulously evaluated, a limited evaluation 16/22 ::: Downloaded on - 06/01/2014 03:15:34 ::: 17 BA1608-12 based on the broad probabilities of the case is required to be done even while considering a bail application, particularly when the offences in question are falling under the special enactments curtailing the discretion of the court in grant of bail.
In the instant case, the entire material against the applicant is the confessions made by the co-accused before the police.
Though such confessions are admissible by virtue of Section 18 of the MCOC Act, the observations made by Their Lordships of the Supreme Court of India in State v. Navjot Sandhu, 2005 SCC (Cri.) 1715, wherein Their Lordships had an occasion to consider the provisions under various special statutes which make the confession to a police officer admissible in evidence, cannot be lost sight of. Their Lordships observed :-
"Many questions do arise and we are unable to find satisfactory or even plausible answers to them. If a person volunteers to make a confession, why should 17/22 ::: Downloaded on - 06/01/2014 03:15:34 ::: 18 BA1608-12 he be not produced before the Judicial Magistrate at the earliest and have the confession recorded by a Magistrate? The Magistrate could be reached within the same time within which the empowered police officer could be approached. The doubt becomes more puzzling when we noticed that in practical terms a greater degree of credibility is attached to a confession made before the Judicial Officer. Then, why should not the investigating officer adopt the straightforward course of having resort to the ordinary and age old law? If there is any specific advantage of conferring power on a police officer to record the confession receivable in evidence, if the intendment and desideratum of the provision indisputably remains to be to ensure an atmosphere free from threats and psychological pressures? Why the circuitous provision of having 18/22 ::: Downloaded on - 06/01/2014 03:15:34 ::: 19 BA1608-12 confession recorded by the police officer of the rank of SP (even, if he be the immediate superior of the IO who oversees the investigation) and then requiring the production of the accused before the Chief Metropolitan or Judicial Magistrate within 48 hours? We can understand if the accused is in a remote area with no easy means of communication and the Magistrate is not easily accessible.
Otherwise, is there real expediency or good reason for allowing an option to the I.O. to have the confession recorded either by the superior police officer or a Judicial Magistrate? We do not think that the comparative ease with which the confession could be extracted from the accused could be pleaded as justification. If it is so, should the end justify the means? Should the police officer be better trusted than a Magistrate? Does the 19/22 ::: Downloaded on - 06/01/2014 03:15:34 ::: 20 BA1608-12 magnitude and severity of the offence justify the entrustment of the job of recording confession to a polilce officer? Does it imply that it is easier to make an accused confess the guilt before a police officer so that it could pave the way for conviction in a serious office? We find no direct answer to these questions either in Kartar Singh's case or the latest case of People's Union for Civil Liberty v.
Union of India." (Para 54 of the reported judgment).
36. Thus the least that can be said is, that, that the case is based only on confessions is a factor that needs to be taken into consideration even at this stage. Moreover, in this case, the confessions are not of the applicant, but of the co-accused.
37. Considering that the case against the applicant is based mainly on what the co-accused have allegedly stated before the police, that even in such confessional statements no active role 20/22 ::: Downloaded on - 06/01/2014 03:15:34 ::: 21 BA1608-12 has been attributed to the applicant, I do not think that the alleged recovery of timer clocks from the shop where he was present, or the recovery of certain literature not specifically banned, allegedly from the said shop, lend the requisite corroboration to the allegations levelled against him, so as to hold him disentitled from being released on bail.
38. There are reasonable grounds for believing that the applicant is not guilty of any offences under the MCOC Act.
39. The applicant is in custody for a period of more than four years and that the trial has still not commenced. As the procedure which permits the pre-trial detention of an accused, on such type of material, cannot be termed as fair, just or reasonable, it would be just and proper to release the applicant on bail.
40. The application is allowed.
The applicant is ordered to be released on bail in the sum of Rs.50,000/- with one surety in the like amount or two 21/22 ::: Downloaded on - 06/01/2014 03:15:34 ::: 22 BA1608-12 sureties in the sum of Rs.25,000/- each.
(ABHAY M. THIPSAY, J.) md.saleem 22/22 ::: Downloaded on - 06/01/2014 03:15:34 :::