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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
M.S. KARNIK, J.
Danish Ali Jamaluddin Ahmed - Applicant
Versus
The State Of Maharashtra, Through DCB CID - Respondent
Bail Application No. 2609 Of 2023
Decided On : 09-11-2023
BAIL - Application for bail by the applicant in connection with FIR No. 326 of 2018 dated 22/06/2018 registered with Malad police station which later came to be numbered as FIR No. 36 of 2018 of DCB CID for offences under sections 387 and 120B of the Indian Penal Code, 1860 (‘IPC’, for short) along with sections 3, 25 read with 37(1)(a) of the Arms Act, 1959 and section 3(4) of the Maharashtra Control of Organized Crime Act, 1999 (‘MCOC’, for short) in which the charge-sheet came to be filed and it culminated into MCOC Special Case No. 2 of 2019. - [IPC 387, IPC 120B, Arms Act 1959, MCOC Act 1999] - The court discussed the relevant provisions of the Indian Penal Code, Arms Act 1959, and Maharashtra Control of Organized Crime Act 1999 in the context of the applicant's application for bail. The court analyzed the conditions of tender of pardon to accomplice under section 306 of the Code of Criminal Procedure, 1973 and the power to direct tender of pardon at any time after commitment of a case but before judgment is passed under section 307. The court also considered the provisions regarding the trial of a person not complying with conditions of pardon under section 308. The judgment highlighted the importance of balancing the rights of the accused and the prosecution, as well as the need to harmonize the provisions of sub-section 4 of section 306 with the guarantee of personal liberty enshrined by Article 21 of the Constitution of India. The court emphasized the significance of witness protection and the Witness Protection Act, 2017 in ensuring the safety of witnesses and the need for the State to provide protection to witnesses in criminal trials. Ultimately, the court allowed the applicant's bail application with specific conditions.
Fact of the Case:
The applicant filed an application for bail in connection with FIR No. 326 of 2018 dated 22/06/2018 registered with Malad police station, which involved serious offences under the Indian Penal Code, Arms Act 1959, and Maharashtra Control of Organized Crime Act 1999. The applicant, who was accused no. 3, had made an application seeking pardon under section 307 read with section 306 of the Code of Criminal Procedure, 1973, which was granted by the Special Court. The applicant's statement was recorded, and he fulfilled the conditions of pardon by making a full and true disclosure of the circumstances within his knowledge. Subsequently, the applicant filed an application for bail before the Special Court, which was rejected, leading to the current application for bail.
Finding of the Court:
The court found that the applicant, as a prosecution witness who had complied with the conditions of pardon, should be enlarged on bail. The court emphasized the need to balance the rights of the accused and the prosecution, as well as the importance of witness protection in criminal trials. The court highlighted the significance of the Witness Protection Act, 2017 and the State's responsibility to ensure the protection of witnesses. Ultimately, the court allowed the applicant's bail application with specific conditions.
Issues: The main issue before the court was whether the applicant, as a prosecution witness who had fulfilled the conditions of pardon, should be enlarged on bail despite the provisions of sub-section 4(b) of section 306 of the Code of Criminal Procedure, 1973.
Ratio Decidendi: The court's decision was based on the interpretation of the relevant provisions of the Indian Penal Code, Arms Act 1959, and Maharashtra Control of Organized Crime Act 1999, as well as the conditions of tender of pardon to accomplice under section 306, the power to direct tender of pardon under section 307, and the trial of a person not complying with conditions of pardon under section 308. The court also considered the significance of witness protection and the Witness Protection Act, 2017 in ensuring the safety of witnesses in criminal trials.
Final Decision: The court allowed the applicant's bail application with specific conditions, emphasizing the need to balance the rights of the accused and the prosecution, as well as the importance of witness protection in criminal trials.
JUDGMENT :
1. Heard learned counsel for the applicant, learned APP for the State and Shri Mundargi, learned Amicus Curiae.
2. This is an application for bail by the applicant in connection with FIR No. 326 of 2018 dated 22/06/2018 registered with Malad police station which later came to be numbered as FIR No. 36 of 2018 of DCB CID for offences under sections 387 and 120B of the Indian Penal Code, 1860 (‘IPC’, for short) along with sections 3, 25 read with 37(1)(a) of the Arms Act, 1959 and section 3(4) of the Maharashtra Control of Organized Crime Act, 1999 (‘MCOC’, for short) in which the charge-sheet came to be filed and it culminated into MCOC Special Case No. 2 of 2019. The facts in nutshell are as under :
3. The applicant is the accused no. 3. The applicant came to be arrested on 01/12/2018. There are in all 5 accused. As many as 7 accused are still absconding. I am not referring to the accusations in detail, suffice it to mention that the same are not only serious but also can be regarded as transnational crime.
4. The applicant on 18/02/2020 made an application under section 307 read with section 306 of the Code of Criminal Procedure, 1973 (‘CrPC’, for short) seeking pardon of the applicant before the Special Court, Greater Mumbai (‘Special Court’, for short). The application seeking pardon came to be allowed. The applicant’s statement was recorded under section 9(3) of the MCOC read with sections 307 and 306 of CrPC. After the charges were framed by the Special Court, recording of the evidence of the witnesses commenced. The applicant’s evidence came to be recorded as P.W.-1 between the period from 20/08/2022 and 03/02/2023.
5. An application was made on 03/02/2023 by some of the accused persons at Exhibit 196 before the Special Court praying that the pardon which has been granted to the applicant be revoked. The said application at Exhibit 196 was rejected on 28/03/2023 by the Special Court. The order dated 28/03/2023 was challenged by the accused no. 4 in this Court which challenge was turned down by this Court on 26/06/2023. Though nothing much would turn on the said facts mentioned in this particular paragraph in the context of this application, however, it was necessary to touch upon this aspect as Mr. Nitin Sejpal, learned counsel for the accused nos. 2 and 4 tried to intervene thereby registering his opposition to this application for bail. It is one of the contention of Shri Sejpal that the Courts have wrongly tendered pardon to the present applicant. At the outset, I may indicate that I have not permitted Shri Sejpal to intervene and make his submissions at length as requested. It was indicated by me that in the facts of the present case, the accused nos. 2 and 4 through Mr. Sejpal may assist learned APP representing the prosecution and nothing more. In my opinion, the accused nos. 2 and 4 have no locus to oppose this application for bail filed by the applicant who is granted tender of pardon and has already deposed in favour of the prosecution. In respect of any other grievance concerning the accused Nos. 2 and 4, they may approach the Special Court by filing appropriate application which can be considered in accordance with law.
6. The applicant preferred an application for bail before the Special Court which came to be rejected by an order dated 30/06/2023. Hence, this application for bail is filed. No doubt, the accusations even against the applicant are very serious. For the reasons recorded, the Special Court tendered pardon to the applicant who is the accused no.3. The said pardon has been confirmed by this Court. It is now the contention of the learned counsel for the applicant that he should be enlarged on bail. I have cursorily glanced through the deposition of the present applicant before the Special Court as P.W.-1. There is no dispute that the applicant has deposed in terms of section 306 thereby fulfilled the conditions stipulated. Admittedly, there is no application filed by the Special Public Prosec
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