The main legal point established in the judgment is the applicability of IPC 174A and the concept of a continuing offence.

K.S. Jhaveri, J.

1. To understand the controversy on hand, it would be expedient to look into the history of certain events that took place after the carnage of 2002, infamously known as the Godhra carnage. On 11.03.2003, at around 2115 hrs., one Jagdish Tiwari, a leader of Hindu organization, named, Vishwa Hindu Parishad (VHP), was shot at while he was at his Medical Shop in Bapunagar area of Ahmedabad City. He, however, survived the gunshot. A complaint was registered against unknown individuals at Bapunagar Police Station vide I-C.R. No. 101 of 2003. In another incident, Haren Pandya, Ex-Home Minister of the State of Gujarat, was shot at in the early hours of 26.03.2003 while he had gone for his morning walk to Law Garden in Ahmedabad City. In respect of this incident, a complaint was registered with Ellisbridge Police Station vide I-C.R. No. 272 of 2003. Investigation into both the offences was undertaken by the local police. However, vide Notification dated 26.03.2003 issued by the Government of Gujarat and Notification dated 28.03.2003 issued by the Cabinet Secretary, Government of India, the case was transferred to Central Bureau of Investigation (for short, "the CBI") and the case was re-registered by the CBI on 28.03.2003. On the basis of evidence collected by the CBI during investigation, it appeared that the incident of attempt of murder of Jagdish Tiwari and murder of Haren Pandya were not isolated incidents but, were part of a larger conspiracy. Therefore, the case of attempt of murder of Jagdish Tiwari was also transferred to the CBI by Notification dated 28.04.2003 of the State Government and Notification dated 29.05.2003 of the Central Government. These two cases registered by the local Police Stations were treated as part of the conspiracy to strike terror amongst a section of the people, i.e. Hindus.

2. The conspiracy alleged by the prosecution is that deceased Haren Pandya was an M.L.A. of the political party, named, Bhartiya Janta Party from Ellisbridge Constituency of Ahmedabad City and had held the portfolio of Home Minister and Revenue Minister in the Government of Gujarat. It was alleged that he played an active role during the post-Godhra riots, in which hundreds of lives were lost and a large number of places of worship were destroyed. As a larger conspiracy to strike terror was alleged, the provisions of Prevention of Terrorism Act (for short, "the POTA") were invoked in the first case of attempt of murder of Jagdish Tiwari on 11.06.2003 and in the second case of murder of Haren Pandya on 02.06.2003. At the end of investigation, one charge-sheet for both the incidents was filed by the CBI before the Special Court dealing with POTA matters on 08.09.2003 and the case was numbered as Special POTA Case No. 10 of 2003. In this charge-sheet, the accused herein was shown as absconding accused.

3. On 11.12.2003 the Special Court framed charges against 15 accused persons for the offences punishable u/s. 302, 307, 201 r/w. Section 120-B of Indian Penal Code (IPC), Sections 25(1-B)(a),27(1) and 5 of the Arms Act and Sections 3(1), 3(2), 3(3), 3(4) and 4 of the POTA. The charges under POTA were required to be dropped against accused No. 15 to 17 at the instance of Central POTA Review Committee and further proceedings against them had to be stayed pursuant to the order of the Hon'ble Apex Court in Criminal Appeal No. 1113 of 2005 in the case of Mohmad Hussain Abdul Rehman Shikh v. Union of India. Original accused No. 13, 14 & 18 were absconding, therefore, Red Corner Notices were issued against them.

4. In the meantime, Proclamation u/s. 82(1) of Cr.P.C. was issued against the accused by which the accused was required to present himself before the Special Court on 27.01.2004. However, the accused failed to appear on the fixed date. After the trial, the Special Court delivered the judgment in Special POTA