CBIversusMUSTAFA AHMED DOSSA

•                  [2011] 4 S.C.R. 969


                          CBI                              A
                            v.
               MUSTAFA AHMED DOSSA
         (Criminal Appeal Nos.920-922 of 2009)
                  FEBRUARY 22, 2011
                                                           B
    [HARJIT SINGH BEDI AND CHANDRAMAULI KR.
                   PRASAD, JJ.]

    Criminal Trial - Bombay Blast case ~ Trial of two
accused arising out of the same incident - Held: Cannot C
proceed under different procedures - On question of
admissibility of evidence, direction made in the case of
respondent-accused in terms of an earlier order as regards
co-accused - Terrorist and Disruptive Activities (Prevention)
A~1987                                                     D
     In 1993, a series of bomb blasts took place in
Bombay and its surrounding areas resulting in death
and/or injuries to many and large scale damage to
property. The State Police registered 27 criminal cases on E
account of the blast. The investigation was later
transferred to the CBI. The trial commenced and the
Designated Court under the Terrorist and Disruptive
Activities (Prevention) Act, 1987 (TADA), framed the
charges including a common charge of criminal
conspiracy against all the accused. The respondent- F
accused, who had absconded, was declared a
proclaimed offender on the 31st December 1997.
Subsequently, however, the respondent was arrested.
and a supplementary charge-sheet was filed against him
before the Designated Court and separate trial ordered G
as regards the respondent. On an application filed by the
respondent, the Designated Court directed that the
evidence collected before 31st December 1997 in the
main trial of the· accused could not be used against the
                            969                            H
    970      SUPREME COURT REPORTS              [2011] 4 S.C.R.
                                                                  •
A respondent unless the witnesses already examined were
  allowed to be cross-examined by him . In support of its
  decision, the Designated Court cited the precedent of a
  co-accused of the respondent, Abu Salem who too was
  arrested later on and charge-sheeted pertaining to the
B same incident although given a separate case number.
  This order was challenged by the CBI in the instant
  appeal.

          Disposing of the appeals, the Court

C      HELD:1.1. The Bombay blast took place in the year
  1993 and the trial with respect to some of the accused,
  including the respondent, has yet not been completed
  though a series of applications have been filed before the
  Designated JudgEl~ followed by appeals in this Court at
D the instance of the aggrieved parties. Therefore, the legal
  issues need not be gone into at this stage for the simple
  reason that the last order in this matter is the order dated
  24th August 2009 made by this Court in SLP (Crl) No.
  3586/2009 in the case of Abu Salem. It appears that after
E the order dated 2nd December 2008 in the case of Abu
  Salem, the matter was carried to this Court in SLP (Crl.)
  No. 569/2009. This SLP was disposed of on 6th February
  2009. An application was thereafter filed by the
  prosecution on 23rd February 2009 that the depositions
F of the witnesses recorded in the absence of the accused
  in BBC No.1/1993 may be taken on record in the case of
  Abu Salem and others without recalling the witnesses in
  view of the provisions of Section 299 of the Cr.P.C. This
  application was, however, dismissed vide order dated 6th
G February 2009 in the light of the order dated 2nd
  December 2008 in the case of Abu Salem. It appears that
  the order dated 16th March 2009 in the case of Abu Salem
  was carried to the Supreme Court by way. of SLP (Crl.)
  No. 3586/2009 and after hearing both parties the SLP was
H dispose~ of on .the 24th August 2009 with directions to
•         CBI v. MUSTAFA AHMED DOSSA                     971


Abu Salem to file a statement before the Special Judge          A
as to all the witnesses he proposed to cross-examihe and
to the prosecution to thereafter take further steps to
produce those witnesses for cross-examination. [Para 9]
[980-H; 981-A-G]
                                                               8
     1.2. It is the case of the CBI that it would be satisfied
if a similar order is passed in the present case. There is
merit in the submission of CBI for the simple reason that
the trial of the respondent and Abu Salem, which arises
out of the same incident, cannot proceed under different C
procedures. Even otherwise the observations of the
Designated Court in the impugned judgment that as the
changed circumstances in the order passed by the
Supreme Court in the case of Abu Salem were pre-
dominantand would hold the field, on this very premise .
                                                               0
the order of the Supreme Court dated 24th August 2009.
would now be the final word in the matter. Therefore, the·
instant appeals are disposed of and direction is made ih
terms of the order dated 24th August 2009. [Para 1O] [981-
H; 982-A-C]
                                                               E
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 920-922 of 2009.

    From the Judgment and Order dated 26.02.2009 of the
Designated Court for Bombay Blast Case, Mumbai in BBC No.       F
1A of 1993.

    P.P. Malhotra, ASG and Arvind Kumar Sharma for the
Appellant.

      Satbir Pillania, Dhananjay Tyagi and Dr. Sushil Balwada   G·
for the Respondent.

    The Judgment of the Court was delivered by

    HARJIT SINGH BEDI, J. 1. These appeals, at the
                                                                H
    972     SUPREME COURT REPORTS                  [2011] 4 S.C.R.
                                                                     •
A instance of the Central Bureau of Investigation, are directed
  against the order of the Designated Court under the Terrorist
  and Disruptive Activities (Prevention) Act, 1987 (herein called
  TADA) dated 26th February 2009 allowing the application of
  the respondent herein and directing that the evidence collected
B before 31st December 1997 in the Bombay Blast Case (BBC)
  No.1 of 1993 could not be used against him unless the
  witnesses already examined were allowed to be cross-
  examined by the respondent. The facts are as under:

         2. On the 12th March, 1993, a series of bomb blasts took
C   place in Bombay and its surrounding areas resulting in the death
    of 257 persons, injuries to 713 and damage of Rs.27 crores
    to property. The State Police registered 27 criminal cases on
    account of the blast. A single charge-sheet dated 4th November
    1993 was filed in the Designated Court against 189 persons
D   of which 44 were shown to be absconding. 15 days later, on
    the 19th November 1993 the investigation was transferred to
    the CBI which registered its own case as Crime No. RC1 (S)/
    93/STF/BB. 19 supplementary reports were thereafter filed
    before the Designated Court by the CBI under Section 173(8)
E   of the Cr.P.C. The trial commenced on the 14th July 1994 and
    the Designated Court, Mumbai after hearing arguments from
    both sides framed the charges on the 10th April, 1995 including
    a common charge of criminal conspiracy against all the
    accused present before it or absconding as well as those who
F   were still unidentified. An application dated 12th April 1994 was
    thereafter moved by the prosecution seeking orders from the
    Designated Court for recording the evidence of the prosecution
    witnesses in the absence of those who were not before the
    Court. The application was, however, kept pending, as the CBI
G   was making efforts to trace out the absconding accused. The
    CBI also filed a fresh list of those accused who were
    absconding and others whose name had surfaced later in the
    investigation and they too were included in the list of
    absconding persons. As the case had reached the trial stage
H   and the prosecution witnesses were to be examined from the
•          CBI v. MUSTAFA AHMED DOSSA
               [HARJIT SINGH BEDI, J.]
                                                             973


20th June 1995 onwards, the Designated Court passed an               A
order on the 19th June 1995 observing that as "there was no
immediate prospect of the arrest of the absconders and as they
were wanted for offences committed by them pursuant to a
conspiracy it was appropriate that the evidence which was led
by the prosecution may be recorded on the arrest of the              B
accused persons whose names figure in list Annexure-A (to the
order) be given in evidence against them on the enquiry on the
into or trial for the offences with which they will be charged as,
if the deponent was dead or incapable of giving evidence or
could not be found or his presence could not be procured             c
without expense or inconvenience which in the circumstances
of the case would be unreasonable and that if during the trial
any of the accused wanted in this case was arrested the
prosecution would be at liberty to move this Court to join him
in the trial." On the 2oth August 1995 the confessional statement    D
of accused Salem Mira Moiuddin Sheikh was recorded which
disclosed the involvement of Mustafa Ahmed Dossa, the
respondent herein, and five others. It also came out that the
respondent had attended several meetings in Dubai in
furtherance of the conspiracy and contraband material had also
been sent to India by him. On the 3rd June 1996, an application      E
was moved by the CBI for the issuance of non-bailable warrants
qua the respondent Mustafa Ahmed Dossa and 5 others and
it was prayed that orders for the publication of a written
proclamation under Section 8(3)(a) of the TADA requiring the
respondent and others to appear before the TADA Court on a           F
specified date and further that non-bailable warrants and a Red
Corner notice, be issued. This application was dismissed by
the Designated Court on the 1st August 1996. The order of the
Designated Court was, however, reversed by this Court on the
7th May 1997 with a direction that the application of the CBI        G
should be taken up for reconsideration by the Designated Court.
This application was decided on the 29th August 1997 and the
prayers made by the CBI were allowed. A proclamation was
thereafter issued on the 16th September 1997 and the
respondent and the others were called upon to appear in the          H
    974     SUPREME COURT REPORTS                   (2011] 4 S.C.R.


A   Designated Court within 30 days thereof. As the respondent
    did not appear in response to the proclamation, he was
    declared a proclaimed offender on the 31st December 1997
    in BBC No.1 of 1993. The respondent was, however, arrested
    at the Indira Gandhi International Airport, New Delhi on the 20th
B   March 2003. It transpired from the documents recovered from
    him that he had acquired Pakistani nationality under the
    assumed named of Mustafa Umar Merchant and had also
    obtained a National Residential Permit for the UAE on the basis
    of his Pakistani Passport. A supplementary charge-sheet was
c   accordingly filed before the Designated Court in Case No. BBC
    No.1 of 1993 against the respondent on the 3rd May 2003. It
    appears the prior to the arrest of the respondent, another
    absconder named Eizaz Pathan had been deported from the
    UAE to India and arrested in BBC No.1 of 1993. Eizaz Pathan
D   made an application to the Designated Court making two
    prayers (1) that the Court allow him to join the trial and (2)
    requesting that all the 684 prosecution witnesses who had been
    also examined thus far should be recalled for cross-
    examination. This application was allowed qua the first prayer
    but rejected qua the second one on the ground that a similar
E   application had already been rejected earlier on the 28th May
    2003. After a supplementary charge-sheet had been filed
    against the respondent, the prosecution moved an application
     that he be also joined in the trial proceedings in BBC No.1 of
     1993. The respondent opposed the application and prayed that
F    his trial should be separated whereas the co- accused also
     opposed the application saying that if the respondent was
    joined in the trial at that stage it would cause serious prejudice
     to them and further delay the trial which had run for almost 11
     years. The application was, however, dismissed by the
G    Designated Judge Shri P.D.Kode vide order dated 4th July
     2003 holding that the evidence recorded after the 31st
     December 1997 with respect to the respondent could be used
     by the prosecution but in so far as the evidence recorded prior
     to that date was concerned the respondent was required to be
H    given an opportunity to meet the said evidence. The order
•             CBI v. MUSTAFA AHMED DOSSA
                  [HARJIT SINGH BEDI, J.]
                                                               975


    dated 4th July 2003 was challenged by the respondent by way       A
    of SLP(Crl) No. 3806 of 2003. This Special Leave Petition was
    disposed of on the 21st November 2003 with the following
    order:

                 "Heard the learned counsel for the parties. The B
          petitioner is challenging an order by which separate trial
          has been ordered as regards the petitioner. The petitioner
          pays that trial should have been along with other accused
          learned ASG submitted that case of the other accused
          have already been over and judgment is reserved. In view C
         of the above circumstances, the prayer made by the
          petitioner has become infructuous. The petitioner prays that
          his trial may be initiated at the earliest and be completed
          urgently. The Special Judge shall conduct the trial
          expeditiously. The SLP is disposed of."
                                                                       D
          3. The respondent thereupon filed application No. 57 of
    2004 on the 10th March 2004 before the Designated Court
    highlighting that the evidence collected during the main trial of
    the accused in BBC No.1 of 1993 could not be used against
    him and prayed that the Court be called upon to opine on this E
    aspect and to give a reasoned order. This application was
    dismissed on the 11th July 2005 by observing that the matter
    had already been concluded by the order dated 4th July 2003.
    Special Leave Petition (Crl.) No. 387 of 2006 was filed by the
    respondent challenging the order of 11th July 2005, inter-alia, F
    praying that this Court opine that the evidence recorded and
    documents and articles exhibited in BBC 1 of 1993 after the
    issuance of proclamation against the respondent could not be
    taken on record in his trial as despite the fact that he had been
    declared a proclaimed offender on the 31st December 1997, G
    no request application or proceedings under section 299 of
    Code of Criminal Procedure Code or under Section 14 (5) of
    the TADA had been taken against him. The Special Leave
    Petition was, however, disposed of as withdrawn on the request
    of the counsel for the petitioner (respondent herein) on the 16th H
    976       SUPREME COURT REPORTS                  [2011] 4 S.C.R.


A ·November 2006. It is the case of the appellant CBI that the
   orders passed by the Designated Court on the 4th July 2003
   and 11th July 2005 with regard to the admissibility of the
   evidence recorded in BBC No.1 of 1993 had attained finality
   on account of the subsequent orders passed by this Court and
B noted above. The respondent, however, still undeterred, filed
   another application on the 8th October 2008 before the
   Designated Court again praying for an order that the
   prosecution could not rely on the evidence collected in BBC
   No.1 of 1993. It was pleaded, inter-alia, that the order of the
C Designated Court dated 4th July 2003 made by Shri P.D.Kode
   was an interlocutory order and subject to review or re-appraisal
   under Section 362 of the Code of Criminal Procedure and there
   was no bar on a successor Judge to re-examine the issue more
   particularly as the circumstances had changed as the trial in
D BBC No.1 of 1993 had since been completed and that the
   conditions for the applicability of section 299 which permitted
   the recording of evidence in the absence of the accused could
   not be applied to the facts of the case. A reply was filed by the
   prosecution bringing out the facts of the case, as already
   revealed above, and further highlighting that orders on similar
E prayers of the applicant had already been made by Shri Kode
   on the 21st February 2004 and 11th July 2005 and the question
   of admissibility of the evidence earlier collected had already
   been settled and could not be re-examined. In para 8 the
   Designated Judge noted that the point in dispute was thus:
F
                "In the light of the rival submissions the point to be
          decided is whether prosecution can rely on and use the
          evidence recorded in main trial BBC 1/1993 in absence
          of even before arrest of this accused Mustafa Dosa."
G
         4. The Designated Court thereafter re-examined the matter
    in the light of the pro~isions of Sections 273 and 299 of the
    Cr.P.C. and Section 14 (5) of the TADA and observed that as
    the conditions envisaged under these provisions were not
    satisfied, the evidence recorded in the absence of the accused
H
•             CBI v. MUSTAFA AHMED DOSSA
                  [HARJIT SINGH BEDI, J.]
                                                               977


    could not be admissible without his right of cross-examination     A
    being respected. The Court noted that the order of Shri Kode
    dated 4th July 2003 had been challenged in the Supreme Court
    but observed that the application had not been decided on
    merits but had been disposed of as infructuous in the light of
    the submission made by the State counsel that the main trial       B
    was fixed for judgment. The Designated Court also observed
    that the order of 4th July 2003 was an .interlocutory one and
    could be reviewed in the interests of a fair trial, and that the
    evidence collected in the absence of the accused-respondent
    was not admissible unless he had been given a right of cross-      c
    examination. In support of its decision, the Designated Court
    also cited the precedent of a co-accused of the respondent,
    Abu Salem Ansari, Riyaz Ahmed Siddique and Abdul Karim
    Shaikh who had been arrested on the 2nd August 2005 and
    charge-sheeted in the year 2006 pertaining to the same             D
    incident although given a separate case number of BBC1- of
    1993. In these proceedings, the Designated Judge by order
    dated 2nd December 2008 directed that the prosecution was
    not entitled to rely on or to use any evidence in 13BC 1 of 1993
    qua Abu Salem Ansari and the others and it was for the
    prosecution to establish the existence of circumstances in terms   E
    of Section 299 of the Code. It appears that the order of 2nd
    December 2008 was challenged by the CBI before this Court
    in SLP(Crl.) No.569 of 2009 and the matter was disposed of
    on the first hearing in the following terms on the 6th February
    2009:                                                              F

              "In the·presenLcase, sub-section (2) of the Section
        299 Cr.P.C.,has no application. Therefore, we make it clear
        that the prosecution may rely on the earlier evidence
        recorded ·in the earlier· trial against the first respondent G
        subject .to establishment of existence of any of the
        conditions precedent as described in first part of Section
        299 Cr.P.C. The appeal is disposed of accordingly."

        5. The Designated Court accordingly sought support for its H
    978       SUPREME COURT REPORTS                   [2011] 4 S.C.R.
                                                                            •
A   opinion from the order dated 6th February 2009 in the case of
    Abu Salem and observed that:

                "In both the trials i.e. BBC 1-A/93 of this accused (i.e.
          the present trial) and BBC 1-B/93 against accused Abu
          Saleem and others some of the evidence is recorded in
B
          common. Some of the witnesses are examined afresh by
          the prosecution. And wh~n in the case of accused Abu
          Salem Hon'ble Apex Court has held that the earlier
          evidence would not be available against Abu Saleem
          unless witnesses are examined afresh the same being the
c         statement of law is also binding. In this case which is
          arising out of the same crime number and is simply
          separated for the sake of convenience as the accused is
          arrested later on when the earlier trial was already over
          and case was reserved for judgment. No any contrary
D         matrix can be applied to this case otherwise it will amount
          to discrimination before law as court will have to give.
          distinct treatment and legal protection to two distinct sets
          of accused involved in the same crime. So far the evidence
          regarding the confessional statement is concerned I am
E         compelled to reiterate that law does not permit the
          acceptance against this accused as the matter is not
          charged or tried together in the same case with this
          accused. In the circumstances prosecution cannot rely on
          or even prove the confessional statement of any of the
F         accused whose trial has come to end by declaration of
          judgment in the year 2007 by examining any Police Officer
          who recorded the same. It will be inadmissible evidence
          and no purpose of law will be served by allowing an
          inadmissible evidence on record."
G
         6. The Court also held that in view of the order dated 6th
    of February 2009 the circumstances had changed and as such
    it was appropriate that a similar order be made and ultimately
    issued the following directions on the 26th February 2009:

H
•          CBI v. MUSTAFA AHMED DOSSA
               [HARJIT SINGH BEDI, J.]
                                                                979


            "It is held that prosecution is not entitled to rely on     A
     any piece of evidence recorded in earlier trial BBC 1/93
     AS IT IS without examining those witnesses afresh in this
     trial.

           It is held that prosecution may rely on the evidence         B
     recorded in earlier trial BBC 1/93 against accused Mustafa
     Dosa subject to establishment of existence of any of the
     condition precedent as described in Second part of
     Sec.299 of Cr.P.C. subject to further condition that such
     evidence u/sec.299 of Cr.P.C. must relate to the later
     evidence recorded after 31 /12/1997 i.e. the date accused          C
     Mustafa Dosa was declared as proclaimed offender.

           It is further held that the prosecution is not entitled to
     rely on any evidence tending to prove confessional
     statements of any of the accused who is already charged            D .
     and tried in main trial BBC 1/93 which is terminated by
     judgment declared 12/9/2006 to 31/7/2007.

            The Prosecution is at liberty to proceed to rely on any
     piece of evidence recorded in the aforesaid earlier trial
                                                                        E
     strictly within the above parameters and subject to the
     conditions mentioned herein-in-above."

     This order has challenged before us by the CBI.

      7. Mr. P.P.Malhotra, the learned Additional Solicitor             F
General, has first and foremost argued that the observations
of the Designated Court in the impugned order that the order
of Designated Judge Shri Kode dated 11th July 2005 was an
interlocutory one which could be tinkered with at any time under
Section 362 of the Cr.P.C. were wrong as the said order had             G
settled the rights in a very specific manner and more particularly
Section 362 could operate only to correct clerical or arithmetical
errors. It has been pointed out that review was a creature of a
statute and there was no inherent power of review vested in a
Designated Court and that even the criminal procedure did not           H
    980     SUPREME COURT REPORTS                 [2011] 4 S.C.R.
                                                                       •
A envisage review of an order except in the limited situations
  mentioned in Section 362. It has also been submitted that in
  any case the power under Section 299 of the Code of Criminal
  Procedure could be exercised in the case of respondent herein
  as he had been an absconder and that the CBI while submitting
B its challan had done so not only with respect to those accused
  who were in the custody but even to those who were
  absconding or who were not yet identified and could be
  identified at a later stage. He has further submitted that the
  changed circumstances on which emphasis had been laid by
c the Designated Court in the impugned order had further
  changed as the order of 6th February 2009 in SLP (Crl.) No.
  569/2009 had further been modified by this Court subsequently
  vide order dated 24th August 2009 and that in this view of the
  matter the trial in the case of respondent herein was also
D required to proceed in accordance with the directions issued
  by this Court on 24th August 2009 in the case of Abu Salem.

        8. The arguments raised by Mr. Malhotra, ASG have been
  countered by Mr. R.S.Sodhi, the learned senior counsel for the
  respondent. It has been pointed out that the order made by Shri
E Kode was nonest in the eyes of law and, therefore, interference
  by the successor Designated Judge ignoring them was fully
  justified. It has further been pleaded that the conditions for the
  applicability of Section 299 of the Cr.P.C. were not made out
  and the respondent was not an accused person or a
F proclaimed offender till a formal declaration to that effect and
  as such the evidence produced by the prosecution prior to the
  31st August 1997 could not be utilized against him. It has been
  highlighted that Section 273 of the Cr.P.C. clearly envisaged
  the recording of evidence in the presence of the accused and
G if such a direction was violated, it would amount to a complete
  miscarriage of justice. The learned counsel has relied upon
  certain documents on its plea.

         9. As would be evident, several legal issues have been
    raised in his matter. We, however, see that the Bombay blast
H
•              CBI v. MUSTAFA AHMED DOSSA
                   [HARJIT SINGH BEDI, J.]
                                                        ·r·
                                                                   981


    took place in the year 1993 and the trial with respect to some.        A
    of the accused, including the respondent herein, has yet not
    been completed though a series of applications have been filed
    before the Designated Judges to be followed by appeals in this
    Court at the instance of the aggrieved parties. We are,
    therefore, of the opinion that the legal issues need not be gone       B
    into at this stage for the simple reason that the last order in this
    matter is the order dated 24th August 2009 made by this Court
    in SLP (Crl) No. 3586/2009 in the case of Abu Salem. It
    appears that after the order dated 2nd December 2008 in the
    case of Abu Salem, the matter was carried to this Court in SLP         c
    (Crl.) No. 569/2009. This SLP was disposed of on 6th February
    2009 by the order already quoted above. An application was
    thereafter filed by the prosecution on 23rd February 2009 that
    the depositions of the witnesses recorded in the absence of
    the accused in BBC No.1 /1993 may be taken on record in the            0
    case.of Abu Salem and others without recalling the witnesses
    in view of the provisions of Section 299 of the Cr.P.C. This
    application was, however, dismissed vide order dated 6th
    February 2009 in the light of the order dated 2nd December
    2008 in the case of Abu Salem. It appears that the order dated         E
    16th March 2009 in the case of Abu Salem was carried to the
    Supreme Court by way of SLP (Crl.) No. 3586/2009 and after
    hearing both parties the SLP was disposed of on the 24th
    August 2009 with the following directions:

                "Respondent accused will file a statement within one        F
         week before the Special Judge as to who are all the
         witnesses whom they propose to cross-examine in BBC-
         1 of 1993. Thereafter the prosecution will take further steps
         to produce those witnesses for cross-examination. The
         Trial Judge will expedite the matter.                             G

               Earlier interim order is vacated.

              The Special Leave Petition is disposed of
         accordingly."
                                                                           .H
    982       SUPREME COURT REPORTS               [2011] 4 S.C.R.
                                                                       •
A      10. It is the case of the CBI that it would be satisfied if a
  similar order is passed in the present case. We find merit in
  the submission for the simple reason that the trial of the
  respondent herein and Abu Salem, which arises out of the
  same incident, cannot proceed under different procedures.
B Even otherwise the observations of the Designated Court in the
  impugned judgment dated 16th March 2009 that as the
  changed circumstances in the order passed by the Supreme
  Court in the case of Abu Salem were pre-dominant and would
  hold the field, on this very premise the order of the Supreme
c Court dated 24th August 2009 would now be the final word in
  the matter. We, therefore, dispose of these Appeals and make
  direction in terms of the order dated 24th August 2009. No
  other order is necessary.
    B.B.B.·                                  Appeals disposed of.