Gujarat High Court
Naved Naeemuddin Kadari vs State Of on 14 August, 2013
Author: A.J.Desai
Bench: A.J.Desai
NAVED NAEEMUDDIN KADARI....Applicant(s)V/SSTATE OF GUJARAT....Respondent(s) R/CR.MA/10987/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 10987 of 2013 ================================================================ NAVED NAEEMUDDIN KADARI....Applicant(s) Versus STATE OF GUJARAT....Respondent(s) ================================================================ Appearance: MR KHALID SHAIKH WITH MR MR EJAZ M QURESHI, ADVOCATE for the Applicant(s) No. 1 MR JM PANCHAL SPECIAL PUBLIC PROSECUTOR for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE A.J.DESAI Date : 14/08/2013 ORAL ORDER
1.0 By way of present application under the provisions of Section 439 of the Code of Criminal Procedure, 1973 ( hereinafter referred to as the Code ), the applicant has prayed to release him on regular bail during the pendency of trial for the offences punishable under Sections 120(B), 121A, 124A, 302, 307, 326,435,427 of the Indian Penal Code,Sections 3,5,6, and 7 of the Explosive Substance Act,1908, as well as Sections 10, 13, 16, 18, 19, 20,23, 38,39 and 40 of the Unlawful Activities ( Prevention) Act, 1967 and for the offences under the Arms Act, 1959, Information Technology Act, 2000 and for the offences under the Damage to the Public Properties Act, 1964 registered with different police stations.
2.0 There are in all twenty(20) offences which are clubbed together and tried by learned Sessions Judge being Sessions Case No. 38 of 2009. These twenty(20) offences are registered for twenty(20) bomb blasts took place in the City of Ahmedabad on 26.07.2008. In several incident which took place at various public places including different hospitals, 54 innocent persons have lost their lives and 240 persons have sustained different type of injuries including of serious nature. The applicant filed application under the provision of Section 439 of Code being Criminal Misc. Application No. 2370 of 2011 in the Sessions (Special) Court which came to be dismissed by the learned Additional City Sessions Judge, Court No.8, Ahmedabad on 08.08.2011. The applicant is one of the accused persons in all these 20 (twenty) offences, for which he is being tried in the aforesaid sessions case.
3.0 The applicant has preferred present application on 09.07.2013 i.e. after a period of 2 years from the date of order of the learned Sessions Court. This application came to be circulated before this Court on 18.07.2013. The applicant was permitted to add all the offences for which he has been being tried together and the matter was adjourned to 23.07.2013. Vide oral order dated 23.07.2013, the either side was called upon for final hearing. Pursuant to the said order Mr. JM Panchal, learned Special Public Prosecutor appeared for the respondent-State and assisted the Court in the matter.
4.0 Mr. Khalid Shaikh with Mr. Ejaj Qureshi, learned advocate appearing for the applicant submitted that the applicant is not named in any of the First Information Reports and there is no iota of evidence for which the applicant is roped in with regard to serious offences. In support of his submission, he would submit that only three witnesses have involved the present applicant with limited allegations that when some discussion was going on between some other accused persons, the applicant was present. He has not played any role vital in any of the bombblasts which took place in the city of Ahmedabad on 26.07.2008.
5.0 He further submitted that the applicant is behind bar since 04.09.2008 and therefore, he may be released on bail. He further submitted that there are number of witnesses and there are 1000 witnesses in this case and few witnesses have been examined by the trial Court and therefore, there is no possibility of concluding the trial in near future. By reading the statements of these witnesses, who are treated as star witnesses J, O and P, would submit that applicant was not aware about the conspiracy alleged to have been hatched by other accused when he visit the place of discussion since he has gone with some another persons.
6.0 He further submitted that there is no prima facie case against the applicant and therefore, there would be no ban under Section 43(D)(5) of the Unlawful Activities (Prevention) Act for releasing him on bail. He further submitted that since Section 43(D) is amended on 21.12.2008, said provision would not be applicable in the present case and therefore, the applicant may be released on bail. In support of his submissions, he placed reliance on the decisions in the case of Kanchan Mishra vs. State of Delhi- 2012(3) Crimes 107 (DEL), Moh. Atik Moh. Iqbal Vs. State of Maharashtra- Criminal Bail Application No. 1047 of 2011, State of Kerala vs. Raneet 2011(0) GLHEL-SC- 49260, Arup Bhuyan vs. State of Assam- Criminal Appeal No. 889 of 2007 as well as in case of Patel Vishnubhai Shivrambhai versus State of Gujarat- 2004(3)G.L.H 297.
7.0 By relying upon the decision in case of Kanchan Mishra(supra), he submitted that after considering the case with regard to offences under the Unlawful Activities (Prevention) Act, the Delhi High Court granted bail to the accused during the pendency of trial.
7.1 By relying upon the decision in case of Moh. Atik Moh. Iqbal(supra), it was argued that in similar type of offence, the applicant was released on bail during the pendency trial.
7.2 By relying upon the decision in case of Arun Bhuyan(supra), he submitted that applicant who was member of ULFA has been released on bail during the pendency of trial.
8.0 By relying upon the decision more particularly para 4 in case of Patel Vishnubhai Shivrambhai (supra), he submitted that there is no material against the applicant, even if charges are of serious nature and therefore, the applicant is entitled for grant of bail.
9.0 On the other hand, Mr. JM Panchal, learned Special Public Prosecutor appearing for the respondent submitted that on 26.07.2008 pursuant to conspiracy hatched by number of persons at different places, twenty(20) serial blasts were taken place in the city of Ahmedabad between 6.15 p.m, to 7.45 p.m on different public premises including Civil Hospital- Trauma Centre and LG Hospital which are run by the State Government and Ahmedabad Municipal Corporation. In the said incident, 54 innocent persons lost their lives and 240 persons sustained different type of injuries including of serious nature. After detailed investigation, the prosecution found number of persons were attached with an unlawful associations namely Students Islamic Movement of India (SIMI) as defined under the provisions of the Unlawful Activities (Prevention) Act, were involved in the serial blasts, to take revenge against the particular caste, pursuant to riots which took place in the State of Gujarat in the year 2002. SIMI is the unlawful association as defined under the the Unlawful Activities (Prevention) Act since September 2001 since the intention of this association is to carry out terrorism in India.
10.0 Mr. Panchal, learned Special Public Prosecutor further submitted that the investigation reveals that special training camps were arranged in the year 2007 in the State of Kerala and again similar camps were arranged to such members of SIMI at Halol in the State of Gujarat in the year 2008 for different type of training to carry out illegal activities to create fear and panic in the society. In the said camps, special training were given to different persons to carry out the particular work with intention to terrorize the people of State of Gujarat. He submitted that to complete the work undertaken by SIMI, includes to create prejudice against members of another community by creating hatrate feelings by circulating such material amongst their own community. In the entire operation of bomb blast, it is not necessary that a person has to remain present at the place of bomb blast but their roles were of different nature. He would submit that the statements of star witnesses J, M and O clearly reveal that the applicant was a member of SIMI and was visiting other member. He further submitted that the applicant by distributing Compact Discs (CD) amongst their own community people, the intention was to involve more and more persons to carry out the final attack of blast in city of Ahmedabad on 26.07.2008 within a short time, i.e for one and half hour, in different places. He would submit that applicant who is charge-sheeted with serious offences under Sections 120B, 302, 307, 326,427, 120B of the Indian Penal Code as well as Sections 10, 13, 16,18,19,20,23,38,39,40 of the Unlawful Activities (Prevention) Act which provides death sentence. He would further submit that different accused persons have played different roles in the entire conspiracy in the present case by creating hatred amongst their own community against other citizens of Indian, visiting places of incident, taking part in the meetings etc. 11.0 Mr. Panchal, learned Special Public Prosecutor would further submit that the investigating agency has also recorded statement of witnesses J, M, O and P under Section 164 of the Code.
11.1 He further submitted that apart from the role played by the applicant, the trial is going on and the prosecution has examined about 180 witnesses. The Sessions Court has fixed two days for hearing of this case in every week and same is going on before the learned Sessions Judge. He further submitted that it would not be desirable at this crucial stage, to release the applicant on bail.
12.0 I have heard learned advocates for the parties and perused the papers of investigation as well as submissions made by learned advocates for the parties.
13.0 As stated hereinabove, the history is the incident for which the applicant is arraigned one of the accused which is of very serious nature.
14.0 As far as considering the statement of star witness it appears that one of the witnesses as stated that on 20.07.2008 i.e. prior to six days of incident, went to the house of star witness P where members of SIMI were present. He has categorically stated that present applicant was already present in the said meeting. All the persons were discussing about date of Jehad and they were discussing that this is the right time to take revenge of communal riots which took place in State of Gujarat in the year 2002. It was also discussed that some members of SIMI are also coming from outside and they are going to blast bomb in the city of Ahmedabad.
14.1 The statement of star witness O clearly indicates that said witness was handed over two compact discs(CDs) by the present applicant and informed that these CDs were with regard to life of Palestians boys and provoking speech of Osama Bin Laden. After bomb blasts the said CDs were destroyed under the instructions received by him. The statement of witness P indicates that present applicant was member of meeting which was held on 20.07.2008, just few days prior to bomblasts.
15.0 As far as case relied upon by Mr. Khali Shaikh, learned advocate appearing for the applicant in case of Kanchan Mishra (supra) is concerned, it appears from the fact that lady was arrested being a wife of member of banned terrorist organization who had written some pamphlets in her hand writing. She was only chargesheeted for the offences under Sections 13,18 and 20 of the Unlawful Activities ( Prevention) Act, 1967 and no such serious charges like Sections 16, 18, 38, 39 etc. were alleged against the lady accused. Therefore, in my opinion the facts of the case would not be applicable in the present case. As far as the case of Mohd Atik Mohd. Iqbal(supra) is concerned, it appears that Bombay High Court has released the accused on bail under peculiar facts and circumstances of the case and particularly the accused person was behind the bar since about 4 years but the trial was not commenced and even charge was not framed against the accused person. On the other hand, in the present case, charge is already framed and about 180 witnesses have been examined by the prosecution and therefore, the said decision would not be applicable in the present scenario. In case of State of Kerala (supra) the only role played by the accused was that accused was a doctor who treated the wounded accused though he was a member of unlawful association. Except these allegations, there was no allegations against the said doctor and therefore, he was released on bail. In case of Arup Bhuyan(Supra) the Hon ble Court released the applicant on bail since there was no other material except confessional statement made by the accused himself before the police. This case is also not applicable in the present facts and circumstances of the case. The case of Patel Vishnubhai Shivrambhai (supra) is not applicable in the present case since there are serious allegations and sufficient evidence against the present applicant.
16.0 It is also pertinent to note that SIMI is unlawful association as defined under the Unlawful Activities ( Prevention ) Act and it has been banned by the Central Government since 2001. Prima facie, it appears that the applicant is a member of such association and he has taken keen interest in the activities of the association. He attended meetings which were held few days prior to the date of bombblasts and it was discussed about the future bombblasts which are likely to be taken place in city of Ahmedabad at different places. The applicant who is facing serious charges under the Unlawful Activities ( Prevention) Act under the Indian Penal Code and when there is prima face case against the accused, he would not be entitled for bail.
17.0 Considering the facts and circumstances of the case and considering the fact that there is prima facie case against the applicant and the prosecution has already examined 180 witness and the trial is going regular basis i.e. on two days in every week, I am of the opinion that it is not desirable to release the present applicant on bail at this crucial stage. Accordingly, the application is dismissed. Rule is discharged.
(A.J.DESAI, J.) niru* Page 11 of 11