MOHAMAD ANSAR KUTUBUDDIN ANSARIS Vs. STATE OF GUJARAT

JUDGEMENT

(1.) In all these appeals, the appellants have challenged the orders made by the learned Special Judge (POTA), rejecting the respective applications of these appellants for grant of bail on the ground that investigation was not completed within the time contemplated under Section 167(2) of the Code of Criminal Procedure,1973 read with Section 49 of the Prevention of Terrorism Act, 2002 (POTA). The original applications were clubbed at the request of the learned counsel appearing before the learned Special Judge (POTA) and argued together. Today, before us, the learned counsel for the appellants has argued all these appeals together, since they involve a common question as to whether the appellants should be released on "default bail".

(2.) The alleged incident occurred on 27.2.2002 near "A" cabin of the Godhra railway station, in which a mob attacked the Sabarmati Express train and set on fire coach no.S/6 that resulted in the death of 59 passengers and injuries to 48 passengers. One hundred and thirty-one persons were alleged to have been involved in conspiring and committing the said crime. All these appellants were arrested in connection with CR No. 9/2002 for the offences punishable under Sections 143, 147, 148, 149, 435, 153-A, 337, 338, 120-B, 34, 302 & 307 of the I.P.C., Sections 141, 151 & 152 of the Indian Railways Act, Sections 3 and 4 of the Prevention of Damages to Public Property Act and Section 135(1) of the Bombay Police Act.

(3.) The applications for bail were filed by these accused persons on the ground that the chargesheet submitted on 22nd May, 2002 was a `dummy' and incomplete chargesheet, filed only with a view to take away their legal entitlement to be enlarged on bail. The learned Special Judge (POTA), after considering the provisions of the Code, noted that if the chargesheet was filed before expiry of the maximum period for which the accused can be detained in the custody under Section 167, further remand to custody can be ordered under Section 309 of the Code. It was found that in the instant case, there was no report made by the Public Prosecutor either to the Sessions Court or to any other court, requesting for extension of the period of investigation, nor had any court granted such permission and, therefore, the time period stipulated under the law to be computed from the date of arrest of the accused till the laying of chargesheet was 90 days in the case of each of these accused. The Court held that the first chargesheet was filed on 22nd May, 2002 and copies thereof were made available to each of the accused by the Court on 15th June, 2002 and they were remanded to the judicial custody under Section 309 of the Code. The accused persons were also informed about the adding of the offences under POTA, 2002. It was held that though there was subsequent invocation of the provisions of the POTA, 2002, prior to that, there was no legal hitch in taking cognizance of the offence in respect of which chargesheet was already submitted. It was held that since discovery of fresh facts were permitted to be brought on record by virtue of Section 173(8) of the Code, it could not be said that the initial chargesheet was `dummy', vague or piecemeal chargesheet, when the initial chargesheet was filed before the expiry of the period during which the appellants could have been detained in custody. The learned Special Judge, therefore, rejected all these applications for "default bail".