- (1.) These appeals, at the 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 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 place in Bombay and its surrounding areas resulting in the 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 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) 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 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 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 and the prosecution witnesses were to be examined from the 20th June 1995 onwards, the Designated Court passed an 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 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 without expense or inconvenience which in the circumstances of the case would be unreasonable and that if 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 20th August 1995 the confessional statement 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 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 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 application of the CBI 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 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 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 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 deported from the UAE to India and arrested in BBC No.1 of 1993. Eizaz Pathan 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 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 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 Designated Judge Shri P.D.Kode vide order dated 4th July 2003 holding that the evidence 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 given an opportunity to meet the said evidence. The order dated 4th July 2003 was challenged by the respondent by way 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 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 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."
(3.) The respondent thereupon filed application No. 57 of 2004 on the 10th March 2004 before the Designated Court 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 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, 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, 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 November 2006. It is the case of the appellant CBI that the 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 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 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 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 further highlighting that orders on similar 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: "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.";