Judgment :

P. Sathasivam, J.

Criminal Appeal Nos. 419-421 of 2008

1) Aggrieved by the decision of the Full Bench of the High Court of Bombay dated 05.11.2004, the appellant has filed these appeals.

2) In view of the limited issue, being the same covered by a subsequent decision of this Court and the course which we are going to adopt, we feel that there is no need to traverse the factual details. After reference by a Division Bench, the Full Bench of the High Court of Bombay re-framed the following questions for adjudication which read as under:

"Q.1 Whether Section 32 of the Prevention of Terrorism Act, 2002 so provides that a confession/statement made under that section by an accused person can be used as a substantive piece of evidence against the other co-accused also?

Q.2 In the event the answer to the question no.1 is in negative, i.e. to say evidence is not substantive evidence in nature, to what extent such statement can be used in the trial?"

After deliberations, the Full Bench answered the above questions as under:

Ans. to Question No.1: In view of the discussion made above, in our considered view, the confessional statement recorded under Section 32 of POTA cannot be used as a substantive piece of evidence against other co-accused.

Ans. to Question No.2: In our view, the statement recorded under Section 32 of POTA is undoubtedly a statement made by a person and it can be used for any purpose to the extent a statement under Sections 161-164 of Cr.P.C. can be used."

3) After answering the reframed questions, the Full Bench considered the claim of the parties on merits and remitted the matter back to the Designated Court for deciding the application of the original accused No.1 for discharge, on the ground mentioned therein and in the light of the observations made in the judgment. The conclusion of the Full Bench as well the ultimate direction is under challenge in the above appeals.

Writ Petition (Crl.) No. 128 of 2008

4) Gulam Akbar Abdul Sattar Khotal, Accused No.4 and five others filed this writ petition under Article 32 of the Constitution of India seeking to issue a writ of mandamus to the Special POTA Court to start the trial of the POTA Case No. 2 of 2003 in respect of the petitioners herein and for that purpose to modify the order of this Court dated 18.10.2005 passed in Criminal Appeal Nos. 419-421 of 2008 entitled Saquib Abdul Hameed Nachan vs. State of Maharashtra. In addition to the same, they also prayed for certain other directions to the Special Court dealing with the case under POTA Act.

S.L.P.(Crl.).............(D.No. 17899/2008)

5) Muzzamil Akhtar Abdul Raheem Ansari, Accused No.12 filed this petition from the Jail complaining that because of the stay order granted by this Court on 18.10.2005 in Crl. Appeal Nos. 419-421 of 2008 staying the trial pending before the Special POTA Court, Mumbai, he has been prevented from proceeding further in the trial, hence, prayed for appropriate direction for vacating the stay order.

6) Since the prayer in the `writ petition' as well as the `jail petition' depends upon the disposal of the Crl. Appeal Nos.419-421 of 2008, it is sufficient if we pass an order considering the claim of the appellant in these appeals.

7) Heard the respective counsel.

8) Mr. Akhil Sibal, learned counsel appearing for the appellants in Crl. Appeal Nos. 419421 of 2008, submitted that in view of the subsequent decision of this Court rendered in State (NCT of Delhi) vs. Navjot Sandhu @ Afsan Guru, (2005) 11 SCC 600, the conclusion of the Full Bench cannot be sustained. He also submitted that in view of the same, the consequential direction to the POTA Court is also liable to be vacated.

9) We have already noted the questions framed by the Full Bench of the High Court and the answers made therein. Subsequent to the decision of the Full Bench of the Bombay High Court, which is impugned in these appeals, the very same issue, viz., use of confessional statement made under Section 32 of POTA by an