Bombay High Court
The State Of Maharashtra vs Mustafa Mehmood Sayyed @ Munna Mustafa @ ... on 10 June, 2019
Bench: Indrajit Mahanty, A. M. Badar
16-APPLN-538-2016.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.538 OF 2016
THE STATE OF MAHARASHTRA )
THROUGH ATS, POLICE STATION, )
MUMBAI) )...APPLICANT
V/s.
MUSTAFA MEHMOOD SAYYED @ MUNNA )
MUSTAFA @ SAYYED BADEMIYA )
MEHMOODMIYA )...RESPONDENT
Mrs.M.M.Deshmukh, APP for the Appellant - State.
Mr.Siddiqui M.Arif, Advocate for the Respondent.
CORAM : INDRAJIT MAHANTY &
A. M. BADAR, JJ.
DATE: 10th JUNE 2019
P.C. :
1 This is an application under Section 308 of the Code of
Criminal Procedure filed by the State seeking sanction to
prosecute the respondent/accused for the offence of giving false
evidence.
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2 Facts, in brief, leading to filing of the instant
application are thus :
(a) The Anti-Terrorist Squad of Maharashtra Police got
information about transportation of arms and ammunitions
in large quantity and on 9th May 2006, a four wheeler
vehicle came to be intercepted and upon checking the same,
10 AK-47 rifles, 40 magazines, 2000 live cartridges,
explosives weighing 30 kilograms and other material came
to be recovered from it. Accused Amir Shakil Ahmed came
to be arrested. Accordingly, LAC NO.3 of 2006 for offences
punishable under various sections of the Indian Penal Code,
Explosive Substance Act, Indian Explosive Act, Arms Act as
well as Unlawful Activities (Prevention) Act came to be
registered. During investigation of that offences, 16 AK-47
rifles, 62 magazines, 3200 live cartridges, 43 kilograms
RDX and 50 live hand grenades apart from vehicles came to
be seized. After prior approval, provisions of the
Maharashtra Control of Organized Crimes Act, 1999
(hereinafter referred to as MCOC Act for the sake of brevity)
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were also added to the case diary of the said crime. During
course of investigation, respondent/accused no.20 Sayyed
Mustafa Mehmood came to be arrested on 9th October 2007.
(b) After following due procedure prescribed under the MCOC
Act, confessional statement of respondent/accused no.20
Sayyed Mustafa came to be recorded by the Deputy
Commissioner of Police, Mumbai, on 3rd November 2007 and
5th November 2007.
(c) After filing of the charge-sheet, MCOC Act Special Case
No.16 of 2006 @ 18 of 2006 @ 20 of 2007 @ 8 of 2009 @
20 of 2012 came to be registered against accused persons.
(d) It is seen from the record that on 7th November 2007,
respondent/accused no.20 Sayyed Mustafa Mehmood
preferred an application and prayed for tendering pardon
under Section 9(3) of the MCOC Act read with 307 of the
Cr.P.C. After calling say of the prosecution on the said
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application, on 15th November 2007, the learned Special
Judge explained the contents of his application to
respondent/accused no.20 Sayyed Mustafa Mehmood and
after hearing the parties, passed an order below Exhibit 37
by allowing the application for grant of pardon moved by
respondent/accused no.20 Sayyed Mustafa Mehmood.
(e) During the course of trial, respondent/accused no.20 Sayyed
Mustafa Mehmood moved an application at Exhibit 1218 for
framing Charge against him and for hearing the case against
him along with other accused. However, as pardon was
tendered to respondent/accused no.20 Sayyed Mustafa
Mehmood, the learned Special Judge was pleased to reject
his application for examining him as a witness. Accordingly,
on 2nd March 2015, respondent/accused no.20 Sayyed
Mustafa Mehmood entered in the witness box as Prosecution
Witness No.88 and resiled his former statement. He was
cross-examined by the learned Special Public Prosecutor. On
the very same day, the learned Special Public Prosecutor
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gave a certificate as envisaged by Section 308 of the Cr.P.C.
and certified that respondent/accused no.20 Sayyed Mustafa
Mehmood committed breach of condition of pardon
tendered to him and had willfully concealed the facts in
connection with the crime apart from giving false evidence.
(f) On conclusion of trial of the subject offences, the learned
trial court disposed off the MCOC Act Special Case by
convicting twelve accused persons.
(g) On the basis of certificate issued by the Special Public
Prosecutor, as respondent/accused no.20 Sayyed Mustafa
Mehmood had not complied with the condition on which the
pardon was tendered to him, he was made an accused for
trying him for the subject offence by registering MCOC
Special Case No.5 of 2016. As the Special Public Prosecutor
while issuing the certificate, as required by Section 308 of
the Cr.P.C., had certified that respondent/accused no.20
Sayyed Mustafa Mehmood has given false evidence, the
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State has moved this application for sanction to prosecute
respondent/accused no.20 for the offence of giving false
evidence.
3 We have heard the learned APP appearing for the State
at sufficient length of time. She argued that considering the fact
that apart from commission of breach of condition on which
pardon was tendered to respondent/accused no.20 Sayyed
Mustafa Mehmood, he has also adduced false evidence before the
learned trial court, and therefore, he needs to be prosecuted for
the said offence. The learned counsel appearing for
respondent/accused no.20 Sayyed Mustafa Mehmood opposed the
application by contending that during the course of trial,
respondent/accused no.20 Sayyed Mustafa Mehmood had applied
for framing Charge against him and for conducting the trial even
against him, and therefore, the instant application deserves to be
rejected.
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4 We have carefully considered the submissions so
advanced and also perused the record made available. It is seen
from the record that respondent/accused no.20 Sayyed Mustafa
Mehmood had moved an application at Exhibit 37 under his own
signature on 7th November 2007. The said application seeking
tender of pardon was also signed by the learned advocate for
respondent/accused no.20 Sayyed Mustafa Mehmood. The
learned advocate for respondent/accused no.20 Sayyed Mustafa
Mehmood was absent on that day and therefore, the case was
adjourned to 15th November 2007. On that day, the learned
advocate for respondent/accused no.20 Sayyed Mustafa Mehmood
was present before the learned Special Judge. As seen from the
roznama of the case, the learned Special Judge had explained the
contents of his application Exhibit 37 to respondent/accused
no.20 Sayyed Mustafa Mehmood in Hindi. Respondent/accused
no.20 Sayyed Mustafa Mehmood confirmed the contents of the
said application and stated that he wants to give evidence before
the court on pardon being tendered. All these happened in
presence of the learned advocate for respondent/accused no.20
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Sayyed Mustafa Mehmood, as seen from roznama of 15 th
November 2007. Ultimately, on 15th November 2007 itself, the
application at Exhibit 37 was allowed by the learned Special
Judge on the condition that respondent/accused no.20 Sayyed
Mustafa Mehmood will make full and true disclosure of all facts
and circumstances within his knowledge, relating to the
conspiracy and seizure of arms and ammunitions on the road in
Taluka Khultabad, District Aurangabad. The learned Special
Judge noted that respondent/accused no.20 Sayyed Mustafa
Mehmood had accepted the pardon so tendered to him on
explaining to him the contents of the order passed below Exhibit
37. That is how, respondent/accused no.20 Sayyed Mustafa
Mehmood became approver on tendering of pardon to him.
However, when respondent/accused no.20 Sayyed Mustafa
Mehmood entered in the witness box as Prosecution Witness
No.88, he went on deposing that he does not know contents of the
application Exhibit 37 moved by him for seeking pardon and for
becoming approver. He denied to have given any such application
before the learned Special Judge. Respondent/accused no.20
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Sayyed Mustafa Mehmood further denied that the court read over
the contents of that application and explained the contents of that
application to him. He denied the fact that he had accepted the
pardon for becoming approver. Respondent/accused no.20
Sayyed Mustafa Mehmood, though admitted the fact that his
confession, recorded as per provisions of Section 18 of the MCOC
Act, bears his signature on each page thereof, he ventured to
depose that he does not know contents of his confession.
5 It is trite that record of the court is sacrosanct. The
application at Exhibit 37 for seeking pardon moved by
respondent/accused no.20 Sayyed Mustafa Mehmood, not only
bears his signature but signature of his learned advocate also.
Record of the court in the form of order sheet shows that the
learned Special Judge explained the contents of his application
Exhibit 37 to respondent/accused no.20 Sayyed Mustafa
Mehmood in presence of his learned advocate and has further
noted that respondent/accused no.20 Sayyed Mustafa Mehmood
still wants to give his statement before the court on pardon being
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tendered. The order below Exhibit 37 tendering pardon to
respondent/accused no.20 Sayyed Mustafa Mehmood
categorically shows that the said order was explained to
respondent/accused no.20 Sayyed Mustafa Mehmood in Hindi
and he then accepted the pardon.
6 In the light of this factual position emerging on record,
we are of the considered opinion that this is a fit case for granting
sanction to prosecute respondent/accused no.20 Sayyed Mustafa
Mehmood for the offence of giving false evidence, and therefore,
the order :
ORDER
i) The application is allowed in terms of Prayer Clause (a) and the same is accordingly disposed off.
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