JUDGMENT

HARJIT SINGH BEDI, J.

1. These appeals, at the instance of the Central Bureau of Investigation, are directed against the order of the Designated Court under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (herein called TADA) dated 26th February 2009 allowing the application of the respondent herein and directing that the evidence collected before 31st December 1997 in the Bombay Blast Case (BBC) No.1 of 1993 could not be used against him unless the witnesses already examined were allowed to be cross-examined by the respondent.

2. The facts are as under: On the 12th March, 1993, a series of bomb blasts took place in Bombay and its surrounding areas resulting in the Crl. Appeal Nos.920- 922/2009 death of 257 persons, injuries to 713 and damage of Rs.27 crores to property. The State Police registered 27 criminal cases on account of the blast. A single charge-sheet dated 4th November 1993 was filed in the Designated Court against 189 persons of which 44 were shown to be absconding. 15 days later, on the 19th November 1993 the investigation was transferred to the CBI which registered its own case as Crime No. RC1 (S)/93/STF/BB. 19 supplementary reports were thereafter filed before the Designated Court by the CBI under Section 173(8) of the Cr.P.C. The trial commenced on the 14th July 1994 and the Designated Court, Mumbai after hearing arguments from both sides framed the charges on the 10th April, 1995 including a common charge of criminal conspiracy against all the accused present before it or absconding as well as those who were still unidentified.

3. An application dated 12th April 1994 was thereafter moved by the prosecution seeking orders from the Designated Court for recording the evidence of the prosecution witnesses in the absence of those who were not before the Court. The application was, however, kept Crl. Appeal Nos.920- 922/2009 pending, as the CBI was making efforts to trace out the absconding accused. The CBI also filed a fresh list of those accused who were absconding and others whose name had surfaced later in the investigation and they too were included in the list of absconding persons.

4. As the case had reached the trial stage and the prosecution witnesses were to be examined from the 20th June 1995 onwards, the Designated Court passed an order on the 19th June 1995 observing that as

"there was no immediate prospect of the arrest of the absconders and as they were wanted for offences committed by them pursuant to a conspiracy it was appropriate that the evidence which was led by the prosecution may be recorded on the arrest of the accused persons whose names figure in list Annexure-A (to the order) be given in evidence against them on the enquiry on the into or trial for the offences with which they will be charged as, if the deponent was dead or incapable of giving