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2012 Supreme(Bom) 2184

ABHAY M.THIPSAY
Kamal Ahmed Mohammed Vakil Ansari – Appellant
Versus
State of Maharashtra – Respondent


Advocates appeared:
For the Appellants:Dr. Yug Mohit Chaudhary i/b Khan Abdul Wahab along with Ms. Naima Shaikh, Advocates.
For the Respondent:D.J. Khambatta, Advocate General with Mrs. Revati Mohite-Dere, PP with Ms. U.V. Kejriwal, APP.

Judgement Key Points

Based on the provided legal document, here are the key points:

  • Case Details: The case is Kamal Ahmed Mohammed Vakil Ansari & Others Versus State of Maharashtra, a Criminal Appeal No. 972 of 2012 regarding MCOC Special Case No. 21 of 2006, concerning serial bomb blasts in Mumbai local trains on 11 July 2006. (!) (!) (!)
  • Core Dispute: The appellants challenged an order dated 1 August 2012 passed by the Trial Judge, which refused to permit them to examine four defence witnesses (Deputy Commissioners of Police and a sanctioning authority). (!) (!) (!)
  • Reason for Examination: The appellants sought to examine these witnesses to introduce confessions made by accused persons in a separate case (MCOC Special Case No. 4 of 2009). These confessions alleged that the blasts were carried out by the Indian Mujahideen, contradicting the prosecution's claim that the appellants (members of SIMI) were responsible. (!) (!) (!)
  • Relevancy: The High Court held that the evidence is relevant under Section 9 and Section 11 of the Evidence Act, 1872, as it logically relates to the facts in issue and exposes infirmities in the prosecution case. (!) (!)
  • Procedural Error (Bipin Panchal Case): The Court found the Trial Judge's order to be in breach of the Supreme Court's directions in Bipin Panchal Vs. State of Gujarat, which mandate that objections regarding admissibility during the evidence stage should generally be noted and decided at the final judgment stage to prevent delays, rather than excluding evidence immediately unless the objection is obvious. (!) (!) (!) (!) (!) (!)
  • Hearsay Objection Rejected: The objection that the evidence was inadmissible hearsay was rejected. The Court clarified that while hearsay is generally excluded, confessions fall under specific exceptions. Furthermore, the fact that the confessing accused are not available to testify does not bar the examination of the police officers who recorded the confessions. (!) (!) (!)
  • Section 18 of MCOC Act: The Court ruled that Section 18 of the Maharashtra Control of Organized Crimes Act, 1999, which makes certain police-recorded confessions admissible, does not restrict the use of such confessions for purposes other than proving the guilt of the confessor (e.g., to prove the existence of the confession for the defence). The non-obstante clause in Section 18 overrides Sections 25 and 26 of the Evidence Act regarding admissibility against the maker but does not prevent the confession from being used for other relevant purposes. (!) (!) (!) (!) (!) (!)
  • Prejudice to Other Cases: The argument that examining these witnesses would prejudice the accused in the separate Case No. 4 of 2009 was rejected. Evidence recorded in one trial cannot be treated as evidence in another trial without being recorded before that specific court in the presence of the accused. (!) (!)
  • Liberal Approach to Defence: The Court emphasized a liberal approach to permitting defence evidence, especially in serious cases involving circumstantial evidence, noting that the value of evidence is for the court to determine after cross-examination, not before admission. (!) (!)
  • Decision: The appeal was allowed, the impugned order was set aside, and the appellants were directed to have the witnesses summoned for examination. (!) (!)

Judgment :

1 The appellants are the accused in MCOC Special Case No.21 of 2006, pending before the Judge of the Special Court constituted under the Maharashtra Control of Organized Crime Act, 1999 (hereinafter referred to as 'MCOC Act' for the sake of brevity). They are aggrieved by the order dated 1 August 2012 passed by the learned Trial Judge refusing to permit them to examine four witnesses in their defence. They have, therefore, approached this Court by filing an appeal as contemplated under section 12 of the MCOC Act, praying that the said order refusing to issue summonses to the said witnesses, be set aside and the appellants be allowed to lead defence evidence, as proposed by them.

2 The appellants are also aggrieved by two other orders passed by the learned Judge of the Special Court, and have filed separate appeals challenging the said orders also (Appeal No.973 of 2012 and 992 of 2012). Though the appeals were heard together, the questions needing determination in the present appeal, and in the said two appeals, not being the same, the said two appeals are being disposed of by a separate, but common order.

3 The said MCOC Special Case No.21 of 2006 relates to seven seri
































































































































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