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IN THE HIGH COURT OF BOMBAY
(FULL BENCH)
Palshikar V.G., Tahilramani V.K. (Smt.) Mohta Anoop V., JJ.
Saquib Abdul Hameed Nachan.... Petitioner.
Versus
State of Maharashtra others.... Respondents.
Criminal Writ Petition No. 1742 of 2004 with Criminal Application Nos. 4260, 4261, 4262 4263 of 2004 alongwith Cri.W.P. Nos. 1650, 1992, 2001 983 of 2004 , decided on 5-11-2004.
Advocates appeared :
Yusuf Muchala with Mubin Haroon Solkar, Miss Hansa Advani Sagir Khan in W.P. No. 1742/04, for petitioner.
Yusuf Muchala with Mubin Haroon Solkar in Cri.A. No. 983/04, for appellant.
P.H. Kantharia A.P.P. with U.V. Kejariwal, A.P.P. B.R. Patil P.P., for State-respondents.
P.A. Sebastian with Shahid Azmi in W.P. No. 1650/04, for petitioner.
Mirza Abdulla, Sharif Shaikh Wahab Khan in W.P. Nos. 1992/04 2001/04, for petitioner.
Vijay Pradhan with Amit Jambhotkar in Cri.Appln. Nos. 4260 4261/04, for applicants.
Mubin Haroon Solkar in Cri.Appln. No. 4262/04, for applicant.
Vijay Pradhan with Sunil Padwal in Cri.Appln. No. 4263/04, for applicant.
Prevention of Terrorism Act, 2002 - Section 32 - Confession under Section 32 of POTA, 2002. - Confession of accused recorded under Section 32 of POTA, cannot be used as substantive piece of evidence against other co-accused. - Held, confessional statement recorded under Section 32 of POTA cannot be used as substantive piece of evidence against other co-accused. 2004 (8) SCALE 257 - Relied on. 1994 SCC (Cri) 899; 1999 Cri LJ 3124 (SC); AIR 1949 PC 257; AIR 19523 SC 159 - Referred. 2003 Bom Cr (Cri) (NB) 678 not good law.
Prevention of Terrorism Act, 2002 - Section 32 - Confession under Section 32 of POTA. - Confessional statement recorded under Section 32 of POTA can be used to defend. - Held, 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 PC can be used to defend. 2004 (8) SCALE 257 - Relied on.
Prevention of Terrorism Act, 2002 - Section 32 - Criminal Procedure Code, 1973, Sections 161 to 164 - Confessional statement under Section 32 of POTA. - Confessional statement of accused recorded under Section 32 of POTA, can be used for any purpose to be extent a statement under Sections 161 to 164, Cr PC. - The statement recorded under Section 32 of the 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 to 164 of the Criminal Procedure Code can be used.
Prevention of Terrorism Act, 2002 - Section 32 - Criminal Procedure Code, (2 of 1974), Sections 161 to 164 - Confessional statement recorded under Section 32 of Prevention of Terrorism Act, 2002 cannot be used as substantive piece of evidence against other co-accused - Such statement however can be used for any purpose to the extent a statement under Section 161 to 164, Criminal Procedure Code can be used. - A confessional statement recorded under Section 32 of the Prevention of Terrorism Act, 2002 cannot be used as substantive piece of evidence against other co-accused. However, such statement can be used for any purpose to the extent a statement under Sections 161 to 164 of the Criminal Procedure Code, 1974 can be used, 2003 (1) Mh LJ 849 - Overruled; 2004 (8) Scale 257 - Relied on.
Prevention of Terrorism Act, 2002 - Sections 58, 29 and 50 - Sanc tion for prosecution - Compensation - For malicious prosecution under POTA which ended in discharge of ac cused in bomb blast case - Complaints filed and cognizance taken against various Police Officers, Secretary Home and Public Prosecutor, but without prior sanction of Government. - Held, unless sanction of appropriate Government is obtained under Section 50 of POTA Special Court could not take cognizance of the complaints under Section 29 of the Act. Single Judge decision in 2004 (1) Bom CR (Cri) 700, held not applicable, because provisions of MCOCA Section 23 are not pari materia with Section 29 and 50 of POTA. The view of Single Judge in said case is based on provisions of Cr PC for taking cognizance of offences under the Code which is not possible in view of Section 50 of POTA.
2. Writ Petition No. 1650 of 2004 is also filed by the same petitioner challenging the framing of charges by the Special Court in POTA Special Case No. 2 of 2003 pending before the Special Court. It also prays for directions regarding investigation into recoveries made under the panchanama dated 12th April and 19 April, 2003 in C.R. No. 21 of 2003 in POTA Special Case No. 2 of 2003.
3. Criminal Appeal No. 983 of 2004 is also filed by the same petitioner, who is original accused No. 1 in the trial, challenging the order passed on 14th July, 2004 in POTA Special Case No. 2 of 2004 by the Special Court. By this order the learned trial Judge rejected the application of the appellant of not framing charges on the ground mentioned therein. He thus challenges both by the writ petitions as also by the appeal, the proceedings before the learned trail Judge in POTA Special Case No. 2 of 2003 on ground mentioned therein basically that the entire case rests on the confessional statement made by the co-accused and user thereof, being assailed under section 15, nothing survives for the Court to proceed under the provisions of POTA.
4. Writ Petition No. 1992 of 2004, is filed by one Abdul Wahid Ansari. By this petition, the petitioner seeks a direction that a confessional statement retracted by the confessor purported to have been recorded under section 32 of POTA shall not be treated as confession at all. In effect this petition apart from the scope of section 32 of POTA, we have to determine various other guidelines issuance of which will have to be considered along with the scope of section 32.
5. Writ Petition No. 2001 of 2004 is filed by one Anif Husain Panwala claiming identical reliefs as claimed by the petitioner in Writ Petition No. 1992 of 2004.
6. Then three applications have been filed, one by Dr. Abdul Mateen Abdul Basit i.e. Criminal Application No. 4261 of 2004 by which Dr. Abdul seeks intervention in Criminal Writ Petition No. 1742 of 2004 filed by Saquib Abdul Hamid Nachan. He seeks intervention by praying on the question of scope and extent of section 32 of POTA. This application was therefore allowed and the applicant's Advocate was permitted to intervene. Identical applications were moved by way of Criminal Application No. 4260 of 2004 by Mr. Shaikh Mohammed Muzammil, Criminal Application No. 4262 of 2004 by Mr. Haseeb Zuber Mulla and Criminal Application No. 4263 of 2004 by Mr. Aatif Nasir Mulla claiming intervention as others. All these applications were allowed and the learned Counsel appearing for them were heard. When these petitions came up for hearing before a Division Bench of this Court, after hearing the learned Advocates appearing for both the sides, the said Division Bench came to the conclusion that in view of certain judgments passed by another Division Bench of this Court, the entire position of law in so far as section 32 of POTA is concerned, requires reconsideration and authoritative pronouncement by this Court as according to the learned Honourable Judges, there appears to be some anomaly in that regard i.e. to say in regard to the scope and extent of section 32 of POTA and therefore the matters were placed before My Lord the Chief Justice and he has directed this Full Bench to be constituted for hearing all these petitions.
7. After those petitions were listed, the intervention applications as mentioned above, were moved and the applicants were permitted to intervene. The matter was thereafter fixed for final hearing. All concerned were heard. Intervention Applications were allowed as indicated ab
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