VITHALBHAI D PANDYA Vs. CENTRAL BUREAU OF INVESTIGATION

JUDGEMENT

(1.) AS common question of law and facts arise in these applications, they are being disposed of by this common judgement and order.

(2.) CRIMINAL Misc.Application No.15506 of 2007 is filed by the applicant - original appellant third party for condonation of delay of 188 days caused in preferring appeal under sec.34 of the POTA against the final judgement and order dtd.25/6/2007 passed by the learned Special Court [POTA].

(3.) MR .Haren Pandya, Former Home Minister of State of Gujarat and son of the applicant herein was shot dead on 26/3/2003 near Law Garden, Ahmedabad. He was removed to hospital and declared dead of having found to have succumbed to injuries. An FIR came to be registered on the very day i.e. on 26/3/2003 as C.R. No.I -272 of 2003 at Ellisbridge Police Station by the complainant Janaksinh K.Pamar. With the consent recorded by the Government of Gujarat and Union Government, the investigation was transferred to Central Bureau of Investigation ("the CBI" for short) on 28/3/2003 and the same was registered as R.C.2(S)/2003 -SIU -I -SIU -II/CBI, New Delhi. On 2/6/2003 intimation was given by the investigating officer for addition of the offences under the provisions of the POTA in the FIR to the Court of learned Chief Metropolitan Magistrate as well as learned Principal Judge, City Civil and Sessions Court, Bhadra vide Ex.744. Special Court came to be established under sec.23 of the POTA for conducting all cases under the POTA and the present case also came to be made over to Special Court under POTA. Original papers from the court of learned Chief Metropolitan Magistrate were sent to the court of learned Special Court, POTA on 16/7/2003. On 8/9/2003 a joint chargesheet in RC -2 and RC -5 (pertaining to attack on one Mr.Jagdish Tiwari) was submitted to the court of learned Special Court (POTA). Invocation of POTA came to be challenged by the accused and by order dtd.1/10/2003 passed below application Ex.36, application of POTA came to be upheld. Some proceeding was initiated for transferring the case, which came to be disallowed. On 11/12/2003 vide Ex.57 the learned Special Court (POTA) framed charges against 15 accused, out of which 4 accused namely A -13, A -14, A -15 and A -19 were declared absconding and therefore, no charge could be framed against them. Admittedly in the chargesheet, the applicant herein was not shown as a witness by the prosecution though his statements were recorded by the investigating officer on 30/3/2003 and 1/6/2003. The wife of deceased Haren Pandya, Jagrutiben was cited as witness in the chargesheet. On 16/11/2006 the prosecution submitted closing pursis and pursis for dropping of the witnesses under the signature of the learned Special Public Prosecutor, CBI. Vide letter dtd.27/11/2006 addressed to the Special Court (POTA), the applicant herein prayed for reinvestigation into the matter / incident of deceased Haren Pandya. Vide order dtd.27/11/2006 in Special Case (POTA) No.10 of 2003, the learned Special Court (POTA) passed an order to file the said letter observing that as per the decision of the Apex Court in the case of Rajiv Ranjan Vs. State, third party has no locus in criminal trial, who may be the close relative of the deceased. That the learned Special Judge also directed to send a copy of the said order to the person concerned i.e. applicant herein. That thereafter, the applicant submitted an application Ex.855 on 15/12/2006 inter -alia urging for further probe of CBI in to the alleged murder of Haren Pandya to get to the truth of the matter with the allegation of CBI not having investigated on the crucial aspect of the murder of deceased Haren Pandya. That by order dtd.18/12/2006 after recording elaborate reasons, learned Special Judge (POTA) rejected the said application Ex.855 (which is subject matter of Criminal Misc.Application No.535 of 2008). While rejecting the said application, the learned Special Judge also passed an order directing the registry to provide an urgent copy of the said order to the applicant to enable him to move the higher forum if he so desires, with further direction to the Registrar, City Civil and Sessions Court to explain the applicant and if required avail legal aid to him to enable him to approach higher forum effectively and expeditiously. It appears that in view of the above directions, copy of the order passed below application Ex.855 was forwarded to the applicant on 22/12/2006. The applicant did not challenge the order passed below application Ex.855 dtd.18/12/2006 rejecting his application for further investigation into the matter of deceased Haren Pandya. That thereafter the applicant submitted one another application Ex.898 on 26/3/2007 on the similar grounds along with the extract of news paper named "Asian Edge" dtd.27/3/2003 reiterating his request for further investigation and incorporating the persons named in the application alleging inter -alia that the murder of Haren Pandya was a political murder. The said application came to be dismissed by the learned Special Judge (POTA) vide order dtd.26/3/2007 after recording elaborate reasons (subject matter of Criminal Misc. Application No.534 of 2008). It also appears that while rejecting the said application Ex.898 vide order dtd.26/3/2007, the learned Special Judge (POTA) also passed an order that the copy of the said order as well as that of earlier order passed below application Ex.855 shall also to be supplied to the applicant urgently to enable him to approach the higher forum if he so chooses as there is still time before the Court shall deliver the judgement after completing the submissions of both the sides on 28/3/2007 and 4/4/2007. The learned Special Judge also passed order that the applicant shall also be provided legal aid by the Registrar, City Civil and Sessions Court, to approach the Hon'ble High Court if he so desires. It appears that the said order was communicated to the applicant in person as he was present before the court on that very day. It also appears from the endorsement made below the order Ex.898 that both the orders i.e. order passed below application Ex.Nos.898 and 855 were received by the applicant on 26/3/2007 and he has also acknowledged the receipt of the aforesaid two orders. Inspite of the receipt of the receipt of the aforesaid two orders, the applicant did not challenge the aforesaid two orders. It also appears that an application was submitted for obtaining certified copy of the closing pursis / pursis for dropping of the witnesses and the certified copies were ready for delivery on 23/4/2007 and actually delivered on 25/4/2007. Thereafter, the trial court proceeded further against the accused persons and vide final judgement and order dtd.25/6/2007, the learned Special Judge (POTA) passed order of conviction / sentence against the accused persons (subject matter of Criminal Appeal No.15506 of 2007). That thereafter after a period of almost about six months of the final judgement and order of conviction in Special Case (POTA) No.10 of 2003, the applicant preferred Criminal Appeal No.1324 of 2007 challenging three orders i.e. order passed below application Ex.855 dtd.18/12/2006; order passed below application Ex.898 dtd.26/3/2007 and final judgment and order of conviction dtd.25/6/2007. As there was delay, the applicant preferred three Criminal Misc. Applications being Criminal Misc.Application Nos.15506, 15518 and 15519 of 2007 in Criminal Appeal No.1324 of 2007. Subsequently, having realised that in one appeal three orders cannot be challenged and for each order separate appeal is required to be filed, Mr.Barot, learned advocate appearing on behalf of the applicant withdrew Criminal Misc.Application Nos.15518 and 15519 of 2007, by submitting that he had already filed two separate appeals challenging order dtd.18/12/2006 passed below application Ex.855 and order dtd.26/3/2007 passed below application Ex.898 and that he will be submitting two applications for condonation of delay in each appeal and therefore, the aforesaid two Criminal Misc. Applications came to be disposed of as withdrawn with above liberty.