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BOMBAY HIGH COURT
M.S. Karnik, J.
Danish Ali Jamaluddin Ahmed – Applicant
versus
State of Maharashtra
Through DCB CID – Respondent
Bail Application No.2609 of 2023
Decided on 9.11.2023
(A) Criminal Procedure Code, 1973 – Sections 306, 307 and 439 – Indian Penal Code, 1860 – Sections 387 and 120B read with Sections 3, 25 read with 37(1)(a) of Arms Act, 1959 and Section 3(4) of Maharashtra Control of Organized Crime Act, 1999 – Constitution of India – Article 21 – Bail application – Tender of pardon – Case was already committed to Special Court – Applicant has fulfilled condition of his making a full and true disclosure of whole of circumstances within his knowledge relative to offence – Accused has deposed in favour of prosecution – Having complied with conditions and deposed in favour of prosecution, it is only logical in such eventuality that applicant must be enlarged on bail as he is no more an accused but a prosecution witness – If at all such a person is to remain in custody for an indefinite period till conclusion of trial, continued detention will have to be considered on touchstone of Article 21 of Constitution of India – Provisions of sub-section 4(b) of Section 306 will have to be harmoniously construed with guarantee of personal liberty enshrined by Article 21 of Constitution of India. (Paras 13, 14, 17 and 18)
(B) Criminal Procedure Code, 1973 – Sections 306, 307 and 439 – Indian Penal Code, 1860 – Sections 387 and 120B read with Sections 3, 25 read with 37(1)(a) of Arms Act, 1959 and Section 3(4) of Maharashtra Control of Organized Crime Act, 1999 – Constitution of India – Article 21 – Bail application – Tender of pardon – Attempt has to be made to strike a balance between rights of accused and rights of prosecution to lead evidence of its choice and establish charges beyond any doubt and simultaneously rights of accused guaranteed under Part III of Constitution have to be well protected – Now that applicant has complied with conditions and has been examined as a prosecution witness before Special Court, fetters of applicant’s continuing in detention until termination of trial needs to be watered down – Even an accused facing serious charges has a right to speedy trial and can seek his release on bail on the ground of long incarceration – Applicant cannot be placed in a situation which is worse off than accused who has a right to a speedy trial and may apply for bail on the ground of long incarceration, citing safety concerns of applicant for his continued detention. (Para 19)
(C) Criminal Procedure Code, 1973 – Sections 439 and 306 – Grant of bail to approver – Considerations of an accused seeking bail will be different from an accomplice seeking bail who has been granted pardon under Section 306 – Dominant object of requiring an Approver to be detained in custody until termination of trial is not intended to punish Approver for having come forward to give evidence in support of prosecution but to protect him from possible indignation and rage and resentment of his associates in a crime – In present case, applicant even in custody faces threats from inmates and has been further insulated from other prisoners – If applicant is to be detained in custody in terms of sub-section 4 of Section 306, applicant will have to remain incarcerated for an unduly long period of time as trial is unlikely to conclude in near future as 50 more witnesses are yet to be examined – Bail granted. (Paras 21, 24 and 30)
(D) Maharashtra Witness Protection and Security Act, 2017 – Section 9 – Criminal Procedure Code, 1973 – Section 306 – Protection of witness – Witness Protection Act in place, when applicant himself is a prosecution witness and an important one at that, it is responsibility of State to ensure that applicant is fully protected in accordance with Witness Protection Act – If prosecution apprehends danger to life of applicant if he is enlarged on bail, it is incumbent on prosecution to undertake exercise of finding out threat perception and ensure that adequate measures are provided for protection of applicant. (Paras 28 and 29)
Result: Bail application allowed.
JUDGMENT (ORAL)
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 P
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