In a significant legal development, the Supreme Court has upheld the conviction in the POTA case involving A-10 (Parvez Khan Pathan). The judgment reaffirms the trial court’s decision and underscores the legal principles governing such cases. This ruling marks a milestone in ensuring justice in cases of criminal conspiracy and underscores the importance of adherence to legal procedures. Read on for a detailed analysis of the judgment and its implications.
Facts
- Conviction and sentence imposed on A-10 (Parvez Khan Pathan) under POTA and IPC sections upheld.
- Acquittal of A-4 (Kalim Ahmad Karimi) for murder charges under IPC and POTA confirmed.
- A-9 (Mohmed Parvez Shaikh) convicted under POTA and IPC sections, sentence reduced on POTA charges.
- A-3 (Mohmed Shafiuddin) convicted under IPC section, POTA sentence reduced on appeal.
- A-12 (Shahnavaz Gandhi) convicted under POTA, sentence modified to time served.
- No CBI appeal against A-2 (Mohmed Abdul Rauf) and A-12 (Shahnavaz Gandhi) acquittals.
- No need for further interference on A-3 (Mohmed Shafiuddin) as per Trial Court judgment.
- Observations made by High Court taken into consideration for appeals.
- Finality of orders passed by High Court on specific applications confirmed.
- A-1 received messages from A-18 directing him to Udaipur and to contact PW-29
- A-1 and A-3 were shifted to a new apartment by A-10 and A-11
- Meeting held where it was decided to kill Jagdish Tiwari
- A-4 introduced A-1 and A-3 to A-5 and handed them pistols
- A-10 pointed out target Jagdish Tiwari to A-1
- A-13 urged to avenge killings of Muslims and strike terror in the Hindu community
- A-1 and A-3 attempted to kill Jagdish Tiwari but failed
- A-9 saw Haren Pandya at Law Garden on 24.3.2003
- A-13 disclosed that Haren Pandya was the next target
- A-1 and A-3 asked for a tablet strip from PW-39 on 11.3.2003
- A-13 disclosed to A-5 that Haren Pandya would be the next target
- Weapons were procured to kill Haren Pandya, A-4 and A-5 involved
- Confessional statements under POTA were relied upon in the case
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Issue
- The prosecution has proven the existence of a larger criminal conspiracy between all accused persons to kill Mr. Haren Pandya, a Hindu leader, in the aftermath of Godhra riots.
- Confessions of the accused under section 32 of POTA establish their roles in the conspiracy.
- The voluntary nature of the confessions recorded under section 32 of POTA makes them admissible as evidence.
- All safeguards under section 32 of POTA were complied with during the recording of confessions.
- Retraction of confessional statements by the accused persons is deemed inconsequential.
- The tiffin box blast in POTA Case Nos.7 & 9 and the conviction of A-4 & A-5 in that case demonstrate their criminal antecedents and contribution to the conspiracy.
- The aim of the conspiracy was to create terror among Hindus through violent means.
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Arguments
- The argument was raised that requesting a glass of water does not discredit a confessional statement.
- Production of Mohmed Parvez at the Civil Hospital during statement recording was claimed to render the confessional statement unreliable.
- Allegations of manipulation in the CBI site map and witness improvements to suit medical evidence raised doubts on the credibility of the confessional statement.
- Accused were secluded and not informed properly, casting doubt on the scene of the murder and the signatures given under coercion.
- Non-filing of the First Information Report by the supposed witness was highlighted, relying on legal precedents for dismissal of petitions.
- Denial of statement under Section 164 Cr.PC and adverse comments on the wound direction and witness conduct further cast doubt on the confession.
- Multiple references to legal cases and the misuse of Public Interest Litigation were brought up to challenge the prosecution’s case.
- Contradictions in witness testimonies, scene analysis, lack of blood and GSR in the car, and discrepancies in the count of bullets fired were emphasized for acquittal reversal doubts.
- Claims of flawed confession recording and extended police custody as reasons to doubt confessions were raised by the accused’s counsel.
- Importance of a fair investigation and the need for proper inquiry were highlighted, along with the need for further investigation based on new information.
- Technical points regarding confession admissibility were debated, along with criticism of the confessional statements based on language use and cultural assumptions.
- Arguments against reliance on newspaper reports and the need for substantial evidence in establishing conspiracy were presented.
- Issues with witness credibility, evidence examination, and the high court’s judgment were contested as grounds for acquittal reversal doubts.
- Concerns about the lack of material witnesses, contradictions in physical evidence, and the precision of time taken in the case were raised as reasons to draw adverse inferences.
- Points on conspiracy coloring through confessions, meticulous Magistrate duties in confession recording, and the absence of gunshot residue in the car were discussed for acquittal doubts.
- Mentions of specific legal cases, misuse of PILs, and the admissibility of confessions in joint trials were brought up in the arguments.
- The petitioners requested further investigation based on new evidence and challenges to the prosecution’s case on various technical and evidential grounds.
- Private complaint lodged by Shri R.S. Nayak was held credible.
- Inconsistency between ocular and medical evidence was highlighted by the defense counsel.
- Non-examination of Jagrutiben was not considered a ground for further investigation.
- Jagrutiben admitted in an interview to having no proof of political rivalry.
- Further investigation or re-investigation cannot be based solely on allegations of political rivalry.
- IO did not find sufficient material regarding political rivalry for further investigation.
- Jagrutiben, a witness in the charge sheet, was not examined as a witness.
- Deposition regarding the recovery of motorcycles was challenged by the defense.
- Ballistic evidence suggested a mismatch in the bullets.
- Confessional statement regarding procuring weapons from Surat was deemed inadmissible.
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Analysis
- The accused in the case were allowed to meet their legal practitioner during interrogation after arrest as per Section 52(4).
- Confessions made during interrogation were deemed admissible as the accused had the opportunity to consult their legal representatives.
- Witnesses not reflected in the site plan can still be produced during trial as per the decision in Pratap Singh & Anr. v. State of M.P.
- Statements under Section 164 Cr.PC require corroboration, as per the ruling in State of Delhi v. Shri Ram Lohia.
- The admissibility of evidence between co-conspirators may be more liberal compared to English law, as seen in Sardar Sardul Singh Caveeshar v. State of Maharashtra.
- In cases of conspiracy, the meeting of minds for an illegal act is essential, and active participation by all conspirators is not required.
- Public interest litigation can be filed on behalf of disadvantaged persons by any member of the public acting bona fide, ensuring access to justice for all.
- Ocular evidence takes precedence over medical evidence in case of discrepancies, as observed in Yogesh Singh v. Mahabeer Singh & Ors.
- Confessional statements should be made voluntarily, with adequate time provided for reflection, in line with the rulings in Sub-rule (5) of Rule 15 of the TADA Rules.
- Confession must be made before a Police Officer not lower in rank than a Superintendent of Police.
- The confession must be recorded in writing or on a mechanical or electronic device.
- Accused must be informed in writing that he is not bound to confess and that it may be used against him if he does confess.
- Accused cannot be compelled to confess.
- Confession must be made in an atmosphere free from threat or inducement.
- Confession must be recorded in the same language as it is made.
- Accused must be produced before the Chief Metropolitan Magistrate or CJM within 48 hours along with the recorded confession.
- Magistrate must record the accused’s statement, obtain signatures or thumb impression, and if there is a complaint of torture, must order a medical examination.
- Magistrate is required to get an ordinary statement of confession from the accused within 48 hours of the confession being recorded by the Police Officer.
- Duties enjoined upon the Magistrate by Section 32 have to be observed properly.
- The appearance of a lawyer who is in the Executive Committee of CPIL is in breach of Rule 8 of the Rules.
- The lawyer’s actions are defined as misconduct under the rules.
- If the Bar Council has not amended the rule after making a statement, it should have been questioned afresh in a petition.
- Until the rule is declared ultra vires, advocates are bound to observe it.
- The petition was not filed bona fide.
- The petition is bereft of merit as it raises the same questions already addressed in the appeal.
- No further material is presented to warrant additional investigation or re-investigation.
- The matter should have been finally settled as the family members’ petition was also dismissed.
- Raking up the matter repeatedly amounts to political vendetta and is unwarranted.
- The petition is liable to be dismissed.
Decision
- The appeal against CBI is dismissed.
- The writ petition is dismissed with a cost of Rs.50,000/- to be deposited by the petitioner with Supreme Court Bar Association Advocates Welfare Fund within a month.
- Accused Mohd. Sheikh has been acquitted except under section 174A IPC by the trial court and the High Court.
- No appeal by CBI against A-2, A-3, and A-12; sentences fully completed by A-3 and A-12 as awarded by the Trial Court; no further interference in the case of A-2 as modified by the High Court.
- State of Gujarat appeals are disposed of as per the decision in Criminal Appeal Nos.140-151 of 2012.
- Conviction and sentence restored for A-1, A-4, A-5, A-6, A-7, A-8, A-9, A-10, and A-11 under POTA and IPC sections as ordered by the Trial Court.
- No investigation is made out in the matter.
- Sentence under Section 3(3) of POTA to be imposed.
- Conviction and sentence under section 174A IPC as per High Court order remains unchanged.
- Conviction and sentence by the Trial Court restored in the peculiar facts and circumstances of the case.
- Accused’s appeal is also dismissed.
Case Title: CENTRAL BUREAU OF INVESTIGATION Vs. MOHD.PARVEZ ABDUL KAYUUM
Case Number: Crl.A. No.-000140-000151 / 2012
