Bombay High Court
Nisar Ahmed Haji Sayed Bilal vs The State Of Maharashtra on 27 November, 2020
Equivalent citations: AIRONLINE 2020 BOM 2628
Bench: S.S.Shinde, M.S.Karnik
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Bhogale
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL INTERIM APPLICATION ST. NO. 2504 OF 2020
IN
CRIMINAL WRIT PETITION ST. NO. 1726 OF 2020
Nisar Ahmed Haji Sayed Bilal
Age 59 Years, Occ. Retired,
Permanent Residing At, 552,
Islampura, Galli No.12,
Malegaon, Nashik ..Victim/Intervener/Applicant
IN THE MATTER BETWEEN
Lt. Col. Prasad Shrikant Purohit
Age 48 years, Occ-Service
Permanently residing at,
76/21 Susmruti Shanti Sheela Society
Law College Road, Pune 411004. .. Petitioner/Accused
Versus
The State of Maharashtra
Through National Investigating Agency
New Delhi .. Respondent
--------
Mr.B.A.Desai, Senior Advocate i/b Mr.Sharif Shaikh, Mr.Shahid
Nadeem, Ms.Hetali Sheth, Ms.Kritika Agarwal, for the
Applicant/Intervener.
Ms.Neela Gokhale a/w Ms.Yogini A.Ugale, for the Petitioner.
Mr.V.B.Konde-Deshmukh, APP for Respondent-State.
Mr. Sandesh Patil for the Respondent/NIA.
--------
CORAM : S.S.SHINDE &
M.S.KARNIK, JJ.
RESERVED ON : NOVEMBER 25, 2020
PRONOUNCED ON : NOVEMBER 27, 2020
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ORDER :
The Applicant-Intervener has fled the present application for impleadment of the Applicant as a Respondent in Criminal Writ Petition No.1726 of 2020. In the Application it is stated by the Applicant that in a bomb explosion which took place at Bhikku Chowk, Malegaon, his son by name Sayed Azhar Nisar Ahmed died on the spot. The Applicant states that the bomb explosion left six persons dead and more than 100 persons injured.
2. Criminal Writ Petition No.1726 of 2020 is fled by the Petitioner - original accused No.9 for the following reliefs :-
"(a) Issue an appropriate writ, order or direction in the like or nature of an appropriate writ, quashing the cognizance of ofences initiated against the Petitioner U/s. 16, 18 of UAP Act 1967 (As amended in 2004 and 2008), 120 along with 153A, 302, 307, 324, 326, 427 and sec 3, 4, 5, 6 of Explosive Substance Act 1908 for want of sanction u/s 197(2) prior to the cognizance taken of the ofences on 22.1.2009 by the Special Judge under MCOCA.
(b) Pending admission and fnal hearing of the Petition, further proceedings in MCOC Special Case No.1/2009 @ MCOC Special Case No.5/2011 @ NIA Special case No.1/2016 pending before the Ld. Special NIA Court, Greater Mumbai may be stayed;2/7
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(c) pass such other and further order(s) as this Hon'ble Court may deem ft and proper in the facts and circumstances of the case."
3. Learned Senior Advocate Shri Desai for the Applicant invited our attention to the averments made in the intervention application. He also placed on record written submissions on behalf of the Applicant and relied upon various decisions of the Hon'ble Apex Court to contend that the scope of victim jurisprudence has been increasingly widened. He submitted that right of victim is a constitutional and fundamental right. According to him that the Victim/Applicant is a party to the trial proceedings currently pending with the Special Court at Bombay. Learned Senior Advocate would further point out that during the course of the trial 140 witnesses have been examined. He therefore, requested that the present Application be allowed in the interest of justice.
4. Learned counsel Mrs. Neela Gokhale for the Petitioner opposed the Application. She would submit that the Applicant has no concern with the issue raised in the present Petition. She submitted that the Petitioner is a serving Army Ofcer and that being a permanent Commissioned Ofcer in the Indian Army, provisions of Code of Criminal Procedure ('Cr.P.C.' for short) 3/7
22.Cri.iast-2504-20.odt mandate the special procedure to be followed for taking him in custody by the civil police and also for prosecuting him. The ATS, Maharashtra, in utter contravention of the aforesaid mandatory provisions in the Cr.P.C., has taken custody of the Petitioner in completely illegal manner. She submitted that the issue raised in the Petition revolves around the question whether the Special Court can take cognizance of any ofence alleged to have been committed by any member of the Army Forces by acting or purporting to act in the discharge of his ofcial duties, except with the previous sanction of the competent authority under Section 197 of the Code. It is her submission that the issue raised in the Writ Petition is purely a matter between the Petitioner and the Respondent and therefore the question of the applicant's intervention does not arise. In her submission, the Applicant/Intervener is already a party before the trial Court and therefore, his rights as a victim stand adequately safeguarded. She prayed for dismissal of the application.
5. We have heard learned Senior Advocate for the Applicant and learned Counsel appearing on behalf of the Petitioner. We have also heard learned counsel appearing on behalf of the Respondent.
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6. From the averments made in the Application and the materials produced on record, it is seen that the Applicant was allowed to intervene before the Special NIA Court, Bombay. The Applicant is already a party in the trial proceedings currently pending before the Sessions Court. The Victim's Application for intervention has been allowed by this Court in Criminal Appeal No.112 of 2018 (Ltd. Col. Prasad Shrikant Purohit Vs. National Investigation Agency & anr.) and Criminal Writ Petition No. 1124 of 2019 (Lt. Col. Prasad Shrikant Purohit Vs. National Investigation Agency and Anr.) preferred by the Petitioner. It is also not in dispute that the Special Judge had allowed the intervention applications of the victim while hearing the Bail Applications of the present Petitioner and the other accused. Even in the Criminal Appeal No.1448 of 2017 (Ltd. Col. Prasad Shrikant Purohit Vs. State of Maharashtra and Anr.) fled by the Petitioner seeking bail before the Hon'ble Supreme Court, the victim's intervention application was allowed. Before the trial Court as many as 140 witnesses are examined upto now. The Applicant has regularly participated in the proceedings before the trial Court.
7. The issue raised by the present Petitioner is as regards the validity of the cognizance taken by the Special Judge under 5/7
22.Cri.iast-2504-20.odt MCOCA/NIA Act for the alleged ofences against the Petitioner in the absence of statutory sanction contemplated under Section 197(2) of Cr.P.C. from the competent authority as the Petitioner is an ofcer under Indian Army and was in the Intelligence Core during the relevant period. Though learned counsel for the Petitioner submitted that for deciding the present issue the presence of the Applicant is not at all necessary, in our opinion, no prejudice would be caused to the Petitioner if the present Application for intervention is allowed as we fnd that at all stages the Applicant was allowed to intervene before the trial Court as well as this Court and even before the Hon'ble Supreme Court. In our opinion, the present Application deserves to be allowed in the interest of justice. Hence, the following order :
ORDER
1. The Interim Application is allowed in terms of prayer clause (a) which reads thus :-
"(a) That this Hon'ble Court be pleased to allow the present application and implead the present Applicant as the Respondent in the said Petition."
2. Consequential amendments in the Writ Petition to be carried out forthwith.
8. The Interim Application is disposed of accordingly. 6/7
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9. This judgment will be digitally signed by the Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.
(M.S.KARNIK, J.) (S.S.SHINDE, J.)
Digitally
signed by
Diksha
Diksha Rane
Rane Date:
2020.11.27
15:24:38
+0530
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