Central Bureau of Investigation & Anr. vs Mohd. Parvez Abdul Kayuum etc.

21 lakhs with default clause – Appeal to Supreme Court – Held: Trial court rightly extended benefit of doubt to the accused – Since the accused has already served sentence of 17 months and also paid the fine, no interference is required.

Prevention of Terrorism Act, 2002:

s. 32 – Confessional statement – Safeguards provided under – Discussed.

Evidence:

Medical evidence and ocular evidence – Inconsistency between – Effect of – Held: In case of such inconsistency, ocular evidence will prevail – Ocular evidence can be discarded only when the medical evidence completely improbablises the ocular evidence.

Book – Evidentiary value – Held: Opinion of a person is not in the realm of the evidence – The opinion in the book may be based upon surmises, conjectures and suppositions and hence has no evidentiary value.

Newspapers and magazine reports – Evidentiary value – Held: Reports in the Newspapers and Magazines do not constitute evidence – A statement in the Newspaper is merely a heresay and therefore inadmissible in evidence in absence of maker of the statement deposing in court to have perceived the fact reported. Constitution of India:

Art. 32 – Writ petition/PIL – By an organization – Seeking further investigation in a criminal/murder case – On the basis that the High Court had acquitted the accused in the criminal case doubting the investigation – Propriety and maintainability of – Held: PIL was filed when the criminal case was being heard in the Supreme Court – It is apparent that the accused persons were instrumental in filing the PIL – The appropriate course would have been an application seeking further or re-investigation by the persons concerned or by the writ petitioner – The motive for filing the PIL was oblique, improper and against discipline and it is clearly misuse of forum of PIL – Even on merit there is no material or ground worthy to direct further investigation or re-investigation in the case – The writ petition is dismissed with cost of Rs.50,000/-.

Public Interest Litigation:

Scope of – Held: Public Interest Litigation cannot be filed for personal gain or political motive or any oblique consideration – Unnecessary interference in criminal case against prosecution at times may cause serious prejudice to the accused also.

Advocates:

Professional ethics – Rule of Professional ethics framed by Bar Council of India – Part VI, Chapter II, Section I, r. 8 – Prohibition for advocate to represent the organization/institution of which the advocate is Executive Member –Appearance of advocate in the Court, in defiance of such Rule, would amount to professional misconduct.

Dismissing Criminal Appeal Nos. 141, 147 and 148 of 2012, Criminal Appeal Nos. 981, 982 and 983 of 2019, Writ Petition (Criminal) No. 26 of 2019 and disposing of rest of the appeals, the Court

HELD: 1. The evidence has been adduced in the case as to the conspiracy which leads to attempt to murder of PW-39 and thereafter fatal attack on the deceased. Accused are associated with it up to the murder and finally to the escape of the assailants after the murder. The evidence evinces training in Pakistan, the various meetings at Masjids, etc. of various accused persons from time to time. There is evidence of confessional statements of convicts, communication over e-mail, seizure of documentary literature at the time of arrest, there is also evidence of providing logistical support and other various types of facilitation, providing money by cash or cheque in respect of accommodation, rent, transportation at Ahmedabad as well as at other places. Evidence is also available with respect to providing mobile phones, transportation, and providing of motorcycles, etc. On the basis of the confessional statement, recoveries and seizures had been made as per the disclosure statements including the seizure of computer hard discs from Cyber Cafes. There is the recovery of documentary evidence also, passenger books proved by hotel caterers, PC owners and opinion of handwriting experts. There is direct and circumstantial evidence as to the involvement of other accused with A-1 in the commission of attempt to murder of PW-39 and murder of the deceased. There is evidence of doing a recce of the Law Garden which used to be frequented by the deceased for taking morning walks, mobile calls bear the time of the fatal attack by the accused persons on the deceased. Besides the mobile tower location of the mobile phone and data of telephone use even shortly before and after the attack on PW-39 as well as on deceased. [Para 15][483-F-H; 484-A-D] State v. Nalini (1999) 5 SCC 253 : [1999] 3 SCR 1 ; Yakub Abdul Razak Memon v. State of Maharashtra (2013) 13 SCC 1 : [2013] 15 SCR 1 - referred to. ‘Commentary on Penal Law of India’ by Hari Singh Gour (Vol. 2), 11th Edn. 1138 – referred to.

2.1 In view of the evidence on record, the statement made by PW-55, the direction of causing of injury No. 7 is fully explained and an eye witness cannot be said to state all these details with mathematical precision. Corroborating evidence is available in abundance. [Para 48] [509-C]

Sukhdeep Singh v. State of Uttar Pradesh and Anr. (2010) 2 SCC 177 : [2009] 15 SCR 1252

– referred to.

2.2 As to the precise distance inch-wise position at the time of firing, there is no witness who can give an exact description as suggested in a lengthy cross-examination. Lengthy crossexamination on this line was wholly uncalled for and wholly unnecessary and witness is not supposed to furnish all such details with precision. Though the witness has withstood the test of crossexamination. It is not a case where medical evidence completely improbabilises the ocular evidence only on that case the ocular evidence has to be discarded not otherwise. [Paras 49-50] [509-D-F]

Abdul Sayeed v. State of Madhya Pradesh (2010) 10 SCC 259 : [2010] 13 SCR 311 ; State of Rajasthan v. Bhanwar Singh (2004) 13 SCC 147 : [2004] 4 Suppl. SCR 409 – relied on.

Nallapati Sivaiah v. Sub-Divisional Officer, Guntur, A.P., (2007) 15 SCC 465 : [2007] 10 SCR 347 ; Shingara Singh v. State of Haryana & Anr. (2003) 12 SCC 758 ; Ram Narain Singh v. State of Punjab (1975) 4 SCC 497 : [1976] 1 SCR 27 – referred to.

2.3 It is not correct to say that number of injuries of the bullet, is not matching with the number of injuries found. There were 7 gunshot wounds whereas 5 bullets were recovered from the body of the deceased. 5 bullet injuries were caused as suggested by ocular evidence of PW-55 and also by medical evidence that 5 bullets were found as injury Nos.5 and 6 were communicating injuries leading ultimately to injury No.1. Thus, there is no inconsistency rather ocular evidence is fortified by the medical evidence. [Para 39] [505-D-E]

Rachhpal Singh and Anr. v. State of Punjab AIR 2002 SC 2710 – referred to.

“A Colour Atlas of Human Anatomy”; “Gray’s

Anatomy” and Modi’s jurisprudence– referred to.

2.4 In the instant case, the ocular evidence of PW-55 is not discredited by the medical evidence. In case of any discrepancy between the ocular or medical evidence, the ocular evidence shall prevail. [Para 57] [515-B-C]

Yogesh Singh v. Mahabeer Singh & Ors. (2017) 11 SCC

195 : [2016] 7 SCR 713 ; Sunil Kundu & Anr. v. State of Jharkhand (2013) 4 SCC 422 : [2013] 5 SCR 924; Bastiram v. State of Rajasthan (2014) 5 SCC

398 : [2014] 2 SCR 567 – relied on.

Ram Narain Singh v. State of Punjab (1975) 4 SCC

497 : [1976] 1 SCR 27 ; State of Haryana v. Ram Singh (2002) 2 SCC 426 : [2002] 1 SCR 208 –

distinguished.

2.5 The High Court has observed that negligible blood was found near the driver’s seat. The clothes of the deceased bore tell-tale signs of profuse bleeding from injuries on his neck and fore-arm and mobile phone and keys lying under the seat had stains of blood. Thus, it is apparent that there was blood on the seat as well as on the mobile phone and keys which were lying on the floor. As eye witness has clearly stated the position where he was. He has been cross-examined at length, blood on cloth was found, how much, where it was found is not going to discredit the ocular version and an entire incident. [Paras 64 -65] [518-D-E]

2.6 It is not correct to say that since the FIR was not lodged by PW-55, his conduct does not inspire confidence and he was not an eye-witness. PW-55 had gone to inform the factum of the incident to the owner of Chitty Bang, CW-1. It is not uncommon for a person to react in the manner PW-55 has done. He first wanted to inform the owner of the place as to the murder. He was not a literate person. CW-1 has also supported the version of PW-55, the narration of incident to CW-1 by PW-55 is quite natural and inspires confidence and there is due corroboration of the version by CW-1. In the circumstances, non-production of the person who had simply given the lift in a rickshaw to PW-55 and has taken him to the house of CW-1, does not cause any dent in the prosecution version. Merely on the ground of non-examination of another witness the deposition of PW-55 cannot be discarded. By the time PW-55 came back to the spot police had already arrived and the body of the deceased was taken in another vehicle to the hospital. PW-55 or CW-1 had no ill-will or malice against the accused. It does not make any difference whether CW-1 was examined as a court witness or as a prosecution witness. Once a witness has been examined, his evidentiary value has to be considered in accordance with the law. Once he has been examined no question to draw any adverse inference against the prosecution arises. [Para 70, 71] [519G-H; 520-A-E]

2.7 There is no embellishment or material improvement in the court’s statement as compared to the one recorded under section 161 Cr.P.C. The question of whether CW-1 had asked PW-55 whether he was speaking the truth and omission of that in the statement under section 161 cannot be said to be a material omission. Material facts have been stated in the statement and there is no contradiction with respect to the material facts with the statement under section 161 Cr.P.C. as to the approximation of time also nothing can be made out by the accused. [Para 72] [520-G-H; 521-A]

2.8 PW-55’s deposition cannot be discredited or tainted in any manner by faulty preparation of sketch. Even otherwise the evidence of sketch is not of much significance. Sometime the sketch may not tally with the version given by a witness. The High Court is moved by sketch which was drawn. PW-55 denied any knowledge of such a sketch. The sketch was not put to PW55 in the cross-examination and to obtain his explanation whether it tallied with the assailant. In the absence of cross-examination of PW-55 on this aspect, the defence cannot take any advantage of a discrepancy, if any. I.O. PW-120 has stated that the sketch was prepared in the absence of PW-55. It was drawn only on the basis of his statement recorded under section 161 Cr.PC. The way in which sketch was drawn, it cannot be considered reliable and trustworthy sketch. In the circumstances, sketch in the reference of the accused ought not to have weighed with the High Court because it was prepared in the absence of PW-55. [Para 75-76] [521-G-H; 522-A-B]

2.9 In view of the identification made by the witness in the test identification parade, no dent is caused by the so-called sketch in the ocular evidence of PW-55. Considering the intricate nature of the investigation, there was no undue delay in holding the T.I.P. It was held after 20 days of the arrest of the accused. The accused had been identified in the same. (PW-39) also, later on, had rightly identified A-1 as the assailant. [Para 77] [522-CD]

Subash and Shiv Shankar v. State of U.P. (1987) 3 SCC

331 : [1987] 2 SCR 962 – distinguished.

2.10 It is the duty of the High Court to examine the details of the intrinsic merit of the evidence of eye-witnesses. The High Court has adopted hyper-technical approach in assessing the evidence of PW 55 and has been moved by minor discrepancies which do not go to heart of the matter and shake the basic version of the prosecution witness. [Para 78] [522-F; 523-A-B] State of U.P. v. Sahai & Ors. AIR 1981 SC 1442 ; Vijay @ Chinee v. State of M.P. (2010) 8 SCC 191 : [2010] 8 SCR 1150 ; Bhajan Singh @ Harbhajan Singh & Ors. v. State of Haryana [2011] 7 SCR 1 –

relied on.

3.1 The plea was that bullet recovered was not sent for ballistic examination and bullets produced in court differ in colour and the state of deformation recorded during post mortem. However, it is clear that it was not put to the doctor that the bullets which were produced in the court, were not the same which he has recovered. As a matter of fact, the doctor has clearly opined that white bullets were seized and they were sent for ballistic examination and they have been produced from the CFSL. It was necessary to put in the cross-examination of PW-8 the fact that the bullets which were produced in court were not the same which were recovered at the time of post mortem, which has not been done. Thus his testimony cannot be discredited on this aspect. [Paras 80-82] [523-G-H; 524-A]

3.2 PW-75, the Forensic Expert has stated that 5 shots were fired from a single standard weapon. He compared the seals. The bullets were fired from a .32 revolver. [Para 82] [524-B]

3.3 The prosecution has successfully established the chain of seizure of five very bullets up to production in court which were recovered from the body of the deceased. PW-8 has stated that during autopsy five bullets were recovered from the body of the deceased which was handed over to the police constable (PW-170) in a sealed condition. PW-170 a constable on duty has stated that he received five bullets in the sealed condition and has handed over the sealed five bullets to police inspector in the presence of panch-witness, PW-2. Further, evidence of PW-101 indicates that he has handed over five bullets recovered from the body of the deceased to PW-107 who during the course of the investigation had handed over the same to PW120 on 28.3.2003. The evidence further discloses that PW-120, Dy. S.P., forwarded the said five bullets vide letter dated 4.4.2001 in the sealed condition to V.S.G.H./EBAB/Forensic Medicine through Director, CFSL, New Delhi vide letter dated 25.4.2004. Exh.442 is the document of receipts by which five bullets were sent to Central Forensic Science Laboratory, New Delhi with seal intact and specimen. Exh.458 points out that blood found on the five bullets, kurta pyjama and lifted from the car was of ‘B’ Group. Thus, it is apparent that the seals have been found intact and there is positive evidence of the custody of the appellants. Thus, it is far-fetched and intentional for the defence to contend that bullets have been changed. [Para 84] [524-E-H; 525-A-B]

3.4 PW-75 has clearly stated that all the bullets were received in sealed condition from CFSL, New Delhi. He has also identified articles 18/1 to 18/5 in the seal applied on the back side of Khakhi cover which is stated to be muddamal article 18/5 which is the seal he had applied. He has stated that he has examined articles 18/1 to 18/5 of which he has given the details. He has further stated in his examination that the bullets were of blackish grey colour but the one with a jacket would have copper or aluminum colour. If the bullet is of white metal then the metal would be made of steel or aluminium but he has not seen nor examined the white coloured jacket bullet. Thus, it is clear that what has been produced in the court are the same articles which were examined by the forensic expert (PW-75). [Para 85] [525-F-G]

3.5 Even in the absence of the Chemical test of the clothes, the evidence conclusively establishes that the revolver was used in the offence for firing the bullets in question and that has been proved to be a weapon of the offence and recovered too. [Para 86] [525-B]

3.6 The act of disclosure of the weapon and its discovery at the instance of A-1 and the bullets found in the body of the deceased was sent to CFSL, New Delhi wherein it has been opined that they have been fired with the standard weapon (revolver of .32 bore), which had been recovered. [Para 93] [528-B]

3.7 The evidence of DW-8 also makes it clear that breach face alone is sufficient to confirm the opinion if they are found to be repetitive and also of repetitive character of the striations which are due to an individual firearm can be related to a particular firearm. In the present case, while ignoring the difference caused by tampering of the firing pin found the second time, the basic striation marks remain the same which is individual for every revolver and is not to be found in any other such weapon. Thus, the evidence is conclusive to prove that the revolver in question was used in firing the bullets recovered from the body of the deceased. The medical evidence, thus, supports the version of PW-55. [Para 97] [528-G-H; 529-A-B]

3.8 PW-8 who prepared the post mortem report has been discarded while relying upon the version of defence witness DW-6, who had stated that injuries 5 and 6 as communicating injuries. The autopsy doctor’s report cannot be discarded lightly as he had seen the injuries. [Para 98] [529-B-C] Tanviben Pankajkumar Divetia v. State of Gujarat, (1997) 7 SCC 156 : [1997] 1 Suppl. SCR 96;

Eshwaraiah & Anr. v. State of Karnataka, (1994) 2 SCC

677 : [1994] 1 SCR 387 – relied on.

4. The site map was sought to be discredited by High Court on the basis that PW-120, I.O. of CBI gave a contradictory reply. He said that the original spot map was drawn by pencil and later on drawn in ink. It was clearly stated that at the time of re-drawing the same, later on, the name of A1 was mentioned as it was known by that time. No dent is caused by the said mentioning of the name of the accused and from the explanation given by PW-120, it is apparent that the name has been added later on. [Para 100][530-E-F]

5. No dent is caused by non-examination of wife of the deceased and other persons as they were not the eye-witnesses. In case of any doubt, they could have been examined as defence witnesses. Wife of the deceased even if examined, would have proved the fact that deceased left for the Garden at around 7 a.m. and he would have reached there around 7.10 a.m. No benefit can be drawn from the aforesaid aspect. No adverse inference can be drawn against prosecution due to the non-examination. [Para 102] [531-D-E]

6. The trial court has extensively dealt with the mobile phone, sim card details and the evidence adduced to prove the usage of the said phone handsets and sim cards by the accused persons. All call records of the accused persons during the entire period of conspiracy and the tower location of the phones of the accused persons near the Law Garden on the day of the murder of the deceased are the strong circumstantial evidence against the accused persons. The accused persons were in possession of mobile phones and were in constant touch with each other before, during and after the commission of the crime through their mobile or landline phones, as depicted in the call details records, in order to execute the conspiracy. [Para 103] [531-F-G; 532-B]

7. The motorbike used by A-1 and A-6 at the time of the commission of the offence was duly recovered. A-10 purchased the motorcycle from PW-54 and gave it to A-1 in the first week of February 2003 for his movements in Ahmedabad. After the commission of a crime, the motorcycle was handed over by A-10 to PW-45 while fleeing from Ahmedabad and thereafter PW-45 parked the same in the parking of Railway Station from where the same was recovered by CBI in presence of PW-24. On the directions of A-13, PW-57 (hostile witness but statement under section 164 Cr.PC had arranged 3 stolen motor Hero Honda motorcycles and handed over the same to A-4. Thereafter, A4 retained one with him and handed over one each to A-14 and A-5. Later on, these motorcycles were used in the commission of a crime. One of the stolen motorcycles was handed over by A-10 to PW-45 while fleeing from Ahmedabad. PW-45 parked the same in Theatre and later on brought by PS Kagdapeeth from where it was seized by CBI on the pointing of PW-45. A fake number plate was got prepared by A-7 and A-8 from PW-52. This number plate was put on the second Hero Honda motorcycle after the commission of a crime. The said motorcycle was abandoned by A-10 and A-11 while fleeing from Ahmedabad. [Para 104] [532-C-H; 533-A]

8. Spot map would be admissible so far as it indicates all that the Inspector saw himself at the spot. Any mark put on the spot map on the basis of statements made by the witness to the Inspector would be inadmissible in view of the clear provisions of section 162 Cr.P.C. Even if the witnesses are not reflected in the site plan, that does not bar the prosecution to produce such witnesses during the trial. Since PW-55 has not been confronted with the site plan and no question had been asked to the witness, thus his ocular evidence cannot be discredited on the basis of the aforesaid omission. [Paras 106, 107] [533-E-F; 534-G-H] Tori Singh & Anr. v. State of U.P., AIR 1962 SC 399 : [1962] SCR 589 ; Pratap Singh & Anr. v. State of M.P. (2005) 13 SCC 624 : [2005] 5 Suppl. SCR 439 – relied on.

9. The High Court has also employed the reason that Police Inspector PW-101 was supposed to be investigating at 2 p.m. on 26.3.2003 at the scene of the offence, while he was shown present at post mortem at 2.15 p.m. PW-101 in this regard has explained that he handed over the papers to Head Constable. Post Mortem might have been made at 2.15 p.m. but he was not present in the post mortem room at that time. The statement of the witnesses ought to have prevailed as to his presence on the spot. [Para 108] [535-A-B]

10. The High Court has observed that voluminous records and number of controversies about each piece of evidence, was not necessary to be dealt with. It could not be said to be the proper approach of the High Court. The High Court ought to have examined the entire background as to what facts and circumstances prevailed and whether the chain was complete to make out the case of conspiracy. It was absolutely necessary so as to find out the conspiracy. The acquittal recorded by the High Court was wholly uncalled for and is based on basically a wrong approach. It was incumbent upon the High Court to come a close quarter of reasoning employed by the trial Court and assessment of the evidence of the witnesses done by the trial court with great care, in an elaborate manner. The High Court has failed to consider the reasons and has jumped to the conclusion. [Para 111] [535-F-H; 536-A]

11.1 The confession of the accused persons recorded under section 32 of Prevention of Terrorism Act, 2002 (POTA) proves the involvement of each and every accused person in the criminal conspiracy. Section 32 of the POTA contains a non-obstante clause like notwithstanding anything in the Criminal Procedure Code or in the Evidence Act and makes admissible certain confessions made to the Police Officers. However, the same is subject to the provisions of section 32. [Paras 112, 113] [536-B-D]

11.2 The safeguards provided in the provisions contained in section 32 of the Act are (i) Confession to be made by the person before a Police Officer not lower in rank than a Superintendent of Police. (ii) It has to be recorded either in writing or on any mechanical or electronic device like cassettes, tapes or soundtracks. (iii) The Police Officer before recording confession has to appraise the accused in writing that he is not bound to make a confession and in case he makes it, the same may be used against him. (iv) That accused shall not be compelled to make any confession. (v) The confession shall be recorded in an atmosphere free from threat or inducement. (vi) Confession to recorded in the same language in which it is made. (vii) The person who has confessed shall be produced before the court of Chief Metropolitan Magistrate or CJM along with the recorded confession within 48 hours. (viii) The CMM/CJM shall record the statement, if any, made by the person so produced and get his signature or thumb impression on it. If there is any complaint of torture by such a person, he shall be referred for medical examination to an Assistant Civil Surgeon or any officer higher in rank. (ix) The person shall be sent to judicial custody and not to police custody. [Para 114] [537-C-H; 538-A]

11.3 It is apparent from the facts of the case that the provisions of section 32(1), (2) and (3) of POTA have been complied with. The accused was produced before the Special Magistrate for CBI. An application was also filed under section 32(4) of the POTA for producing accused. It was mentioned that the confessional statement has been made by the accused voluntarily without fear, threat or inducement while recorded by the SP, CBI, ACP. The Magistrate has asked the accused whether he was ill-treated or tortured by the CBI while in custody recording confessional statement to which he replied in the negative. He further stated that he has voluntarily made the confessional statement. On that, he was sent to judicial custody till 4.7.2003. A similar process has been followed while recording the confessional statement of accused persons by PW-21 under section 32 of POTA. [Paras 121, 122 and 123] [543-F-H; 544-A]

11.4 Safeguards have been provided in various provisions made in section 32. The notable safeguards which were lacking in TADA are to be found in sub-sections (4) and (5). Ordinarily the person should be sent to judicial custody. In exceptional cases, police custody can be granted and not otherwise. Non-compliance with usual custody requirement does not per se vitiate the confession. In the instant case, the accused persons have been sent to judicial custody and the provisions of section 32 have been complied with in pith and substance. [Para 125] [546-C-D] State (NCT of Delhi) v. Navjot Sandhu etc.(2005) 11 SCC 600 : [2005] 2 Suppl. SCR 79 – relied on.

11.5 Section 32(4) requires that the person whose confession has been recorded to be produced before the Magistrate along with an ordinary statement of confession within

48 hours. The Magistrate shall record the statement, if any, made by the person so produced and get his signatures or thumb impression. If there is any complaint of torture then medical examination has to be ordered and thereafter he shall be sent to judicial custody. In the present case, the Magistrate has recorded the statement made by the accused and has obtained the signatures. The Magistrate has clearly enquired whether he was ill-treated or tortured by the CBI while in custody, for recording a confessional statement to which he replied in the negative. The accused was asked what he wanted to say to which he responded that he made a voluntary confessional statement. Then he was remanded to judicial custody. In view of the fact that the officer of the rank of S.P. has duly recorded that he has read over the statement and the accused has admitted it to be correct, as in due compliance with the provisions of section 32, so it was not necessary for the Magistrate to read over the same again to the accused, in view of clear language employed in section 32(4) and

(5) the duties enjoined upon the Magistrate have been duly observed. There is no requirement of the opening of the sealed envelope by the Magistrate containing the confession and to read it out to the accused. Paras 126- 128] [546-F-H; 547-A-D] State of Maharashtra v. Bharat Chaganlal Raghani & Ors. (2001) 9 SCC 1 : [2001] 3 SCR 840 – relied on.

Adambhai Sulemanbhai Ajmeri & Ors. v. State of Gujarat, (2014) 7 SCC 716 : [2014] 7 SCR 48

– distinguished.

11.6 In the facts and circumstances of the present case there was no such prolonged custody so as to render the confessional statement doubtful in any manner only due to the fact of police custody. The impact of police custody would depend upon the facts of each case. What is the impact of police custody on the confessional statement has to be considered also in view of the fact whether the accused were given sufficient time to think over which was given in the instant case. They had legal assistance also as they had communicated with advocates also after they were arrested and then the S.P. explained in writing to them the consequences of making such a statement. S.P. ensured that they were not under any fear or greed etc. and that they were not tortured. Thereafter confessional statement had been made. Sufficient time for reflection had also been given. [Para 131] [549-D-F]

Nathu v. State of Uttar Pradesh, AIR 1956 SC 56 – distinguished.

11.7 When several accused persons are involved in various cases and an accused is found involved in a series of cases, obviously, his police remand has to be taken in a particular case. That does not mean that he has been sent to police remand in some other cases would adversely affect the confession. What is envisaged is that with respect to the same crime, he should not normally be subjected to police remand once he makes a statement in the court with respect to his confession under section 32(4) and (5), he has to be sent to judicial custody. That has been precisely followed. In the instant case, it cannot be said that he was subjected to prolonged police custody or he had lost the confidence that he would not be sent to judicial custody. [Para 132] [549-H; 550-A-B]

11.8 In the instant case, under section 32 of POTA, confession made to a senior police officer has been made admissible. Even otherwise the S.P. under section 32(1), (2) and

(3) and the concerned Magistrate under subsections 4 and 5 of section 32 have performed their duties effectively as per the law laid down by this Court. [Para 133] [550-C-D] Shivappa v. State of Karnataka (1995) 2 SCC 76 : [1994] 6 Suppl. SCR 171 ; Aloke Nath Dutta & Ors. v. State of West Bengal (2007) 12 SCC 230 : [2006] 10 Suppl. SCR 662 – distinguished.

11.9 It depends upon the nature of the case and the facts and circumstances and evidence in each case whether the confessional statement is truthful and is corroborated. That has to be seen in each case. In the present case, it is not the case of the accused that they were not given the right to consult legal practitioner when they were interrogated after arrest by the police under section 52 of the POTA Act. [Paras 136, 137] [554-C; 555-B]

11.10 There was no violation of safeguards provided under the provisions of section 32(5) vis a vis any accused person. The confessions cannot be said to be inadmissible. The provisions of section 32 have been duly complied with. [Para 141] [559-D] Kehar Singh v. State (Delhi Administration) (1988) 3 SCC 609 : [1988] 2 Suppl. SCR 24 – referred to.

11.11 The time of reflection was granted which was adequate in the present case and after giving an opportunity to accused whether they wanted to make a confession after being told that it may be used against them, it was the case of observance of the aforesaid principle and it is not the case that the accused had asked for legal assistance during that period and were deprived of it. The legal aspect of the effect of confession had been duly informed to the accused persons beforehand in writing so many words, and adequate time was given for reflection so as to consider the consequence of making a confession. Nothing more could have been advised by a lawyer. Thus, by not volunteering to provide aid of lawyer in view of the fact that the case, where it was not asked for during the time of reflection, even on the assumption that it was necessary, no prejudice can be said to have been caused to any of the accused persons as they were given enough time for reflection, whether they wanted to make confession as it could be used against them. Thus, there was no breach of any of the constitutional rights flowing from Articles 21, 22(3) and 20(3) of the Constitution of India. They were assisted by lawyers also in the main case when remand etc. was sought. The submission that PW-21 has stated that police custody has no relevance upon the voluntary nature of confession, which is as per counsel is against the settled jurisprudence, is also untenable for the reason that section 32 makes a voluntary confession to a police officer admissible. [Para 142] [559-E-H; 560-A-B]

11.12 The use of words like “suraksha”, “prabandh”, “poorva” ‘netritva’ ‘anusar’ ‘hatya’ “sampark”, etc., cannot be said to be Sanskritised. It would depend upon the educational background of a Muslim in which he has been brought up. Merely by the fact that A-1 happens to be a Muslim, it cannot be said that he would not know these words, particularly when it would depend upon his own education and the family background in which he has been brought up. Thus the criticism made of the confessional statement due to use of the aforesaid words that they could not have been employed by A-1 or by other accused persons is not only unwarranted but also unacceptable. [Para 143] [560-C-F]

11.13 It is not correct to say that the fact that A-9 was in the hospital at the time when the statement was recorded, renders the confessional statement unreliable. No such question during his cross-examination has been put to PW-21 as to the presence of A-9, in hospital at 10 a.m. A-9 was required to be produced before the Magistrate on 9.6.2003 i.e. within 48 hours as required under section 32 of POTA. Neither he stated so in the written retraction of confessional statement that he was at the time in the hospital when the confessional statement is said to have been recorded. It was necessary to discredit the recording of confession by PW-21 to put it in the cross-examination and to seek his explanation. Cross-examination is not a matter of procedure but a matter of substance. [Para 147] [561-D-F]

Jai Shankar Prasad vs. State of Bihar AIR 1963 SC 1906 – relied on.

A.E.G. Carapiet v. A.Y. Derderian AIR 61 Cal. 359;Maroti Bansi Teli v. Badhabai w/o Tukaram Kunbi, AIR 1945 Nagpur 60 ; Karnidan Sarda v. Sailaja Kanta Mitra AIR 1940 Patna 683 – referred to.

11.14 All the accused persons have given different reasons for retraction of their confessional statement. The court has individually heard each and every accused. The accused persons have not retracted their confession at first opportunity when they were produced. Reasons behind retraction also do not inspire confidence. The details with which the confessional statements have been recorded after the observance of due safeguards and other corroborative evidence on record are indicative of the fact that reasons for retraction are not correct. There is no allegation that they were tortured by the police. In the absence of the same, it does not inspire confidence that they have signed on blank papers, etc. There was a general statement that they were under fear made by some of the accused persons. The fact remains that the statements have been recorded by the S.P., a high ranking officer as envisaged under section 32 of POTA which cannot be lightly discredited in the facts and circumstances of the case. [Para 148] [561-G-H; 562-C-E]

Mohmed Amin & Anr. v. Central Bureau of Investigation (2008) 15 SCC 49 : [2008] 16 SCR 155 – relied on.

11.15 Since there was no mal-treatment, no manifest complaint of torture, confession appears to be voluntary and all the accused persons were sent to judicial custody. Subsequent retraction of confession is of no consequence, the same is an afterthought. [Para 149] [563-B]

12.1 If the view of the High Court is not reasonable, this Court may review entire material and there will be no limitation on the jurisdiction of this Court under Article 136 of the Constitution of India to render justice quashing the acquittal. A-4 was part of the conspiracy to murder the deceased. [Para 165, 166] [572-F-G]

K.R. Purushothaman v. State of Kerala (2005) 12 SCC

631 : [2005] 4 Suppl. SCR 498; Central Bureau of Investigation, Hyderabad v. K. Narayana Rao (2012)

9 SCC 512 : [2012] 9 SCR 54 ; State of Rajasthan v. Islam & Ors., (2011) 6 SCC 343 : [2011] 6 SCR 988 ; State of Delhi v. S hri Ram Lohia AIR 1960 SC 490 – referred to.

12.2 Confession of A-1 has been supported by various other evidence on the record like phone calls, recovery of the weapon, vehicle, hiring of rooms, etc. There is corroborative evidence of confession with respect to A-1, Shooter. He fired PW 39 and murdered the deceased as stated in his confession in December 2002 after return from Pakistan. In view of overall evidence against A-1, his acquittal by High Court for murder of the deceased and POTA offence deserves to be set aside and conviction and sentence as ordered by Trial Court is restored. [Paras 155,160 and 162] [567-A-B; 568-D-E; 569-E]

12.3 The conspiracy is supported by the confessional statement. A-4 had conspired and he was clearly part of the conspiracy of killing the deceased. A-4 was held guilty by the Trial Court for the offences punishable under Section 3(2) read with Section 3(3) of POTA. For the offences punishable under Section 120-B read with Section 302 of IPC, he was sentenced to life imprisonment with a fine of Rs.5,000/- with default clause. However, the High Court has maintained and confirmed the conviction for the offence punishable under Section 3(3) of POTA and sentence has been reduced to the period already undergone by him in jail with fine of Rs.5,000/- each, and in default of payment of fine, he shall undergo RI for 6 months. The High Court has acquitted A-4 of charges under Section 120-B read with Section

302 of IPC and the charge for the offence under Section 3(1) punishable under Section 3(2)(a) of POTA. He procured vehicles and weapons and due to his active role in the conspiracy, he is liable to be convicted for commission of offence under Section 3(1) read with Section 3(3) of POTA and Section 120B read with

302 IPC as ordered by the Trial Court. [Para 173] [575-F-H; 576-A-B]

12.4 As far as the confessional statement of A5 is concerned, the procedural safeguard of giving 24 hour reflection time was duly adhered to. All cautions were given to him. Voluntariness was ascertained. No signs of any physical injuries were found upon examination, neither was he threatened in any manner. Evidence of PW-21, PW-120, PW-122, and PW-91 show due compliance of all procedures, including confirmation proceedings. Disclosure, discovery, and seizure of both the pistol and the e-mail printouts are supported by PW-65 (panch witness). The pistol was discovered at the instance of A5 in the presence of this witness. Email-id and password were given by A5. Printouts of the emails were taken out in the presence of this witness. This witness supported all documentary evidence in relation to the above. Exhibit 685 is the sanction accorded by PW-115 to prosecute several accused including A5 under the Arms Act. Other accused are A1, A3, and A6. This sanction under Section 39, Arms Act was accorded by PW-115, being the In-Charge Police Commissioner of Ahmedabad City at the relevant time. Vide notification dated 28.02.02, State of Gujarat had been declared to be a notified area under the POTA. Mere possession of a firearm in a notified area is an offence as per Section 4 of the POTA. [Paras 174(a), 175] [576-F; 578-A-C]

12.5 A Senior Scientific Officer at CFSL, New Delhi opined that bullet recovered from the body was PW-39 was fired from the 7.65 mm pistol discovered at A5’s instance. Three empty cartridges recovered from the shop of PW-39 had also been fired from the same weapon, which is a firearm as per the Arms Act, 1959. The evidence of PWs 87, 65, 108 and 120 has no inter se anomalies. For inter se cellular mobile communication of accused persons, testimonies of PW-11, PW-17, PW-33 PW-36, and PW46 are specifically relevant. Besides them, PWs 25, 26, 35, 40 also provide corroborative evidence. In the face of this evidence, non-recovery of the mobile handset from A5 would, in fact, be an incriminating circumstance against him. A-5 played a vital role at all stages of conspiracy, right from the very inception, extending to the murder of the deceased and the subsequent abscondment of various accused, including himself. He played a crucial role in the procurement, handling, and storage of the illegally procured arms. 7.65 mm pistol was in fact discovered and recovered at his instance. He was, thus, rightly convicted and sentenced by the Trial Court for commission of offence under section 3(1) r/w 3(3) of POTA as well as 120B and 120B read with 302 IPC for commission of offence of murder of the deceased. The same is restored. [Paras 176, 177, 178 and 179] [578-D-H; 579-A-B]

12.6 The confessional statement of A6 has been corroborated by PW-11, PW-13, PW-17, PW-33 and PW-110. They are the witnesses to the recoveries of SIM cards. Proximity of A-6 with rest of the group, his explicit act in taking A-1 to Law Garden and waiting till killing of the deceased under the pretext of reading newspaper and thereafter, taking A-1 to Shahpur Mill Compound and handing over the weapon and vehicle and completing everything with meticulous detail are all reflected in the confessional statements. PW-11, PW-13, PW-17, PW-33 and are the witnesses to corroborate the confessional statement. They are also witnesses to the recoveries of SIM cards. PW-27 had proved the landline number at the house of A-6 and the said fact had also been admitted by A-6. Record of mobile phone location also revealed the incriminating circumstances as proved by the evidence. Motorbike used during the commission of the offence was handed over to PW-45, who turned hostile to the case of the prosecution. He had taken A-1 to spot and brought him back also and carried a weapon too. Keeping in view his proximity with rest of the group and his involvement in the conspiracy to kill the deceased, the conviction and sentence awarded to A-6 by the Trial Court under Section 120B read with Section 302 IPC and under section 3(1) and 3(3) of the POTA, is found to be appropriate. [Paras 182 and 185] [581-B, G-H; 583-B-F]

12.7 It is apparent from the record that A-7 could not go for training to Pakistan as during the month of Ramzan his parents were to come from the USA and he decided to opt out. However, he has provided complete logistic support to all those who went for training. The guilt stand proved against the A-7 as found established by the Trial Court. The conviction and sentence imposed by the Trial Court A-7 is found to be proper under section 3(1) and 3(3) of POTA as well as section 120B r/w section 302 IPC for commission of murder of the decesed. [Paras 187, 192 and 193] [584-E; 587-G-H]

12.8 By and large, A8’s confessional statement is on the same lines as that of A6. Although he had complained of forcible extraction of his confessional statement by making him sign on blank papers, trial court did not attach much importance to this in view of his late retraction which was held to be on legal advice, with no prior complaint having been made to any judicial officer and all safeguards of Section 32, POTA had been duly observed by the S.P.

PW-21,

PW-120,

and

PW-91

prove

contemporaneous record of the requisition, the preliminary questioning, the caution which was administered and the confirmation procedure under Section 32 (4) of the POTA, in regard to the confessional statement of A-8. Additionally, all witnesses examined to prove A-7’s guilt are examined to prove A-9’s complicity as well. Corroborative evidence also comes forth from PW-11, PW-17, PW-21, PW-45, PW-52, PW-60, PW-77, PW91, PW-114, PW-117, and PW-120. Depositions of PW-119 and PW-33 (working as Sub-Divisional Engineer and Divisional Engineer, respectively at BSNL, Ahmedabad) are in relation to cell phone records. In view of the evidence on record, A-8 had rightly been convicted and sentenced by the Trial Court for commission of offence under section 3(1) read with section 3(3) of POTA as well as under section 120B and 120B read with section 302 IPC for commission of murder of the deceased. The same is restored. [Paras 198, 199 and 202] [589-F-H; 590-A-B; G-H; 591-A]

12.9 Details of training of A-9 at Pakistan and return from there, together with his knowledge and role in AMTS Blasts, attack on PW-39 and murder of the deceased are all mentioned in the statement. A9 also provides details of the role played by others in the entire sequence of conspiracy. 60 hours of reflection time was given to him. Willingness was again verified after recording the statement. A9 put his signatures to it. His custody was handed over to PW-120 at 4.50 pm. The next day being Sunday, he was produced before PW-91 at 10.35 am on 09.06.03. No grievance was raised against police. No complaint was made of any physical or mental ill-treatment at the hands of police. Considering the overall evidence, the Trial Court convicted and sentenced him rightly under section 3(1) read with section 3(3) of POTA as well as 120B IPC and 120B read with 302 IPC also for commission of murder of the deceased. The same is restored. [Paras 203 and 209] [591-B-D; 592-D]

12.10 There is evidence that A-10 has provided all the logistic supports for executing the conspiracy and made arrangement for stay of those who came from outside and provided for their transportation, motorcycles, arms, and ammunition. The evidence clearly proves the role of A-10 in the conspiracy to murder the deceased and he has been rightly convicted by the Trial Court under POTA and for murder of the deceased. In view of overall evidence available against the accused he was rightly held guilty by Trial Court for offence under section 3(1) and section 3(3) of POTA as well as under section 120B and section 120B read with section 302 IPC for murder of the deceased. The conviction and sentence imposed by Trial Court is restored. [Paras 218 and 223] [596-D; 598-C; 600-E]

12.11 A-2 was held guilty by the Trial Court for the offence punishable under Section 3(3) of POTA and was given benefit of doubt of all the other offences under the POTA as well as under the IPC. There is no appeal preferred against his acquittal by the State/CBI in the High Court. The Trial Court has convicted A-2 under Section 3(3) of POTA and sentenced him to 7 years rigorous imprisonment and the High Court has also confirmed and maintained the conviction as well as the amount of fine i.e., Rs.10,000/-. The sentence of rigorous imprisonment has been modified to the period already undergone in jail i.e., 5 years. Against the decision of the High Court, the CBI is in appeal. The minimum sentence is 5 years under Section 3(3) of POTA and by now 8 years have passed and the accused has already undergone little more than 5 years. No case for further interference is called for as CBI did not prefer an appeal against the judgment and order of the Trial Court. The decision of the High Court as to conviction and sentence under POTA is affirmed. [Para 224] [600-F-H; 601-A-B]

12.12 With respect to A-3 the Trial Court has recorded conviction under Section 120B read with Section 307 of IPC and has sentenced him to undergo 7 years rigorous imprisonment with fine of Rs.3,000. He was also given benefit of doubt for all the other offences he had been charged with under the POTA as well as under the IPC. The High Court has also maintained and upheld conviction and sentence awarded to him by the Trial Court. As no appeal was preferred by CBI against the decision of the Trial Court against A-3, no case for further interference is made out. [Para 225] [601-F]

12.13 A-12 he was convicted only under Section 3(3) of POTA and was sentenced by the Trial Court to undergo 5 years rigorous imprisonment. The High Court has confirmed and maintained the conviction and sentence awarded under Section 3(3) of POTA. [Para 226] [601-D-E]

12.14 No appeal was preferred by CBI against the acquittal A-2, A-3 and A-12 and since they have completed the sentence fully awarded to them by the Trial Court as modified by the High Court in the case of A-2 no further interference is required to be made as against them in the judgment of conviction and sentence imposed and it need not be discussed elaborately as no appeal was preferred against the decision of the Trial Court by CBI. [Para 227] [601-F]

12.15 The conviction and sentence imposed by the Trial Court on A-1, A-4, A-5, A-6, A-7, A-8, A-9, A-10 and A-11 under Section 3(1) and 3(3) of POTA and 120-B and Section 302 read with Section 120-B IPC as ordered by the Trial Court are restored. The appeals filed by State of Gujarat stand disposed of in terms of decision rendered in Criminal Appeal Nos.140-151 of 2012.[ Paras 270, 271 and 272] [623-C-D]

13.1 In the case of absconded accused , who was tried separately, the trial court found that though his visit to Mumbai stands proved, any conspiracy was formed at Mumbai had not been established. His statement under section 164 (1) Cr.P.C. initially was recorded as a witness that has not been taken into consideration. The polygraph test conducted on the accused was not as per the laid down safeguards to be observed by the National Human Rights Commission and was without any permission of the court. Even the statement had been held to be not good enough to fasten the guilt to enter into the conspiracy for either an attempt of murder of PW 39 or killing of the deceased. He was not with the main accused (A-1) on the date of the incident. No role has been shown of the accused in the conspiracy leading to the attempt of murder of PW 39 and killing of the deceased. [Para 233] [623-C-D; G-H]

13.2 He had taken car of another accused to bring A-1 to the accommodation cannot make him conspirator in the murder of the deceased since it was a subsequent event. After tiffin bomb accident the conspiracy was hatched to kill PW 39 and the deceased to which the accused was not a part. The High Court had not disturbed the aforesaid finding. The benefit of doubt has been rightly extended by the Trial Court. In the peculiar facts and circumstances of the case, as the petitioner has already served the sentence of 17 months and has also paid the fine of Rs.21 lakhs, thus, no case for interference is made out vis-à-vis to him. [Paras 233 and 234] [603-B-E]

14.1 The writ petition has been filed acting in conjunction with the accused persons in the case as the counsel for accused has admittedly supplied the documents to the petitioner and had consultations. A perusal of the order dated 8.2.2019 indicates that the presence of the counsel for an accused in criminal appeals has been recorded on behalf of the petitioner CPIL along with the advocates in the PIL. The fact is apparent that accused persons were instrumental in getting filed this writ petition for further investigation in the case. If the accused so wanted then they ought to have approached this Court by way of filing an appropriate application in the criminal appeals only and not by way of filing a PIL, that too through the CPIL. It cannot be said to be an appropriate way of filing a writ petition for further investigation, the motive is oblique, improper and against discipline, especially when the criminal appeals were being heard finally and this Court was in seisin of the matter and judgment has been reserved ultimately on 31.1.2019. At the relevant time when the petition was filed, obviously the petitioner CPIL was well aware of the hearing of criminal appeals and that fact has not been stated in the writ petition that criminal appeals were being heard on merits for the last several months w.e.f. 1.11.2018. It is shocking and surprising that the accused have resorted to the aforesaid method of getting filed the petition in guise of the PIL by supplying the documents to CPIL in their self-interest and virtually attacking the case of the prosecution on the same grounds and whatever new material has been filed. [Para 245] [608-A-G]

14.2 The statement on which the petitioners relied on was totally out of the context of a criminal case in which he had deposed. It was clearly an attempt as an afterthought to make the statement as to some other matter irrelevant to controversy. It appears to be clearly a motivated one and bundle of falsehood as he could not give any reason for omission in the previous statement in which also this issue was not involved.[Paras 246 and 247] [609-A-B, G]

14.3 The Book by Rana Ayyub, relied upon by the petitioner, is of no utility. It is based upon surmises, conjectures, and suppositions and has no evidentiary value. The opinion of a person is not in the realm of the evidence. There is a likelihood of the same being politically motivated, cannot be ruled out. The way in which the things have moved in Gujarat post-Godhra incident, such allegations and counter-allegations are not uncommon and had been raised a number of times and have been found to be untenable and afterthought.[Para 248] [610-B-C]

14.4 So far as the allegations made by the family of the deceased ie. by father and wife of the deceased, the matter has been dealt with on merits by the High Court. The High Court has considered the matter in extensive details. Wife of deceased was cited as a witness in the charge sheet. On 16.11.2006, the prosecution submitted closing pursis and pursis for dropping of the witnesses including wife of the deceased. It was taken note of the fact that the applicant did not challenge the order passed declining further investigation. A similar application was submitted on 18.12.2006 on the basis of newspaper reports which was also dismissed on 25.6.2007 by the POTA Judge. A copy of the order was also supplied to the applicant, wife of the deceased. Thereafter, father of deceased has filed a petition in the High Court assailing the order which was decided vide judgment and order dated 20.6.2008. [Para 249] [610-D-F]

14.5 The High Court has further observed that nonexamination of wife of the deceased is no ground for further investigation. The High Court has also observed that in an interview, it is clearly admitted by the wife of the deceased that she has no proof/material with respect to political rivalry. Only on allegation of political rivalry, further investigation or reinvestigation cannot be ordered. The I.O. has stated that during the investigation he did not get any material with respect to political rivalry on the basis of the vague statement of father of deceased, further investigation was not possible to be ordered against political figures. The applicant has no material to substantiate the material of political rivalry. In the absence of material, there cannot be an order for further investigation or reinvestigation. On merit, the applicant has failed to make out a case for further investigation or re-investigation.[Para 250] [613-B-D]

14.6 The wife of the deceased was not an eye-witness, admittedly, and had no personal knowledge. She was not an eyewitness to be examined in the case. Thus, it cannot be said that the prosecution has withheld her and she would have unfolded any part story which was material to the case. The order passed by the High Court that no investigation was warranted, also attained finality. [Paras 251 and 252] [613-E-H; 614-A-B]

14.7 Thereafter, yet another attempt was made by the wife of the deceased though she was not entitled to file any petition after it was filed by the father of the deceased in view of prayer made before the Trial Court as father had questioned the orders passed on applications filed by her before Trial Court. The High Court has dismissed the petition filed by the wife. [Para 253] [614-B-C]

14.8 Thus, it is apparent that the matter has attained finality. Again, in criminal appeals, the case has been examined on merits as the case relates to the deceased. On merits, in view of the material that has been placed on record including that of Azam Khan’s statement and Book by Rana Ayyub, no case is made out on the basis of material placed on record so as to direct further investigation or re-investigation. There is absolutely no material for that purpose. The matter has already attained finality due to the dismissal of SLP. Even otherwise the petition has been based upon reports in the newspapers/magazines. Newspaper reports do not constitute evidence. A statement of fact contained in a newspaper is merely hearsay and therefore inadmissible in evidence in absence of the maker of the statement appearing in court and deposing to have perceived the fact reported.[Paras

254 and 258] [615-D-F; 616-C]

Kusum Lata v. Union of India (2006) 6 SCC 180: [2006]

3 Suppl. SCR 462; Rohit Pandey v. Union of India (2005) 13 SCC 702; Holicow Pictures (Private) Ltd. v. Prem Chandra Mishra, (2007) 14 SCC 281 : [2007] 12 SCR1068 ; Laxmi Raj Shetty v. State of Tamil Nadu (1988) 3 SCC 319 :[ 1988] 3 SCR 706 - relied on. Vinay Tyagi v. Irshad Ali (2013) 5 SCC 762 : [2012] 13 SCR 1005; Manohar Lal Sharma v. Principal Secretary & Ors. (2014) 2 SCC 532 ; Zahira Habibullah Sheikh & Anr. v. State of Gujarat & Ors. (2004) 4 SCC

158 : [2004] 3 SCR 1050 ; Pooja Pal v. Union of India (2016) 3 SCC 135 : [2016] 11 SCR 560 ; Tehseen Poonawala v. Union of India (2018) 6 SCC 72: [2018] 9 SCR 1 -referred to

15.1 Public interest litigation cannot be filed for personal gain or political motive or any oblique consideration. Unnecessary inference in the criminal case made against the prosecution case at times may cause serious prejudice to the accused also. [Para 259] [616-D]

15.2 In the instant case, as the forum of PIL has been misused. Apart from that, it is not a case where a private complaint has been lodged with respect to an offence. The CBI has investigated the case thoroughly and minutely and the conspiracy between accused persons has been found established. There is voluminous evidence discussed in criminal appeals with respect to the complicity of the accused persons in the offence. It cannot be said that investigation was unfair, lopsided, botched up or misdirected in any manner whatsoever. In all fairness, such petition ought not to have been filed by CPIL at the instance of accused, it is clearly misuse of Forum of PIL. [Para 263] [619-G-H; 620-A-C]

Rajiv Ranjan Singh ‘Lalan’ (viii) v. Union of India (2006) 6 SCC 613 : [2006] 4 Suppl. SCR 742 ; Gulzar Ahmed Azmi v. Union of India, (2012) 10 SCC

731 : [2012] 9 SCR 287 ; Simranjit Singh Mann v. Union of India & Anr. (1992) 4 SCC 653; Ashok Kumar Pandey v. State of W.B., (2004) 3 SCC 349 : [2003] 5 Suppl. SCR 716 - relied on.

A. R. Antulay v. Ramdas Sriniwas Nayak & Anr. (1984) 2 SCC 500 : [1984] 2 SCR 914 ; Bandhua Mukti Morcha v. Union of India & Ors. AIR 1984 SC

802 : [1984] 2 SCR 67 - held inapplicable

16.1 The counsel appearing on behalf of CPIL, cannot appear as counsel in the case filed by CPIL as he admittedly is a member of the executive committee of CPIL. Rule of professional ethics framed by the Bar Council of India contained in section I of Chapter II of Part VI, Rule 8 makes an exception only if such a member is appearing as an amicus curiae or without a fee on behalf of a Bar Council, Incorporated Law Society or a Bar Association. There is no exception to a body like CPIL. [Paras 266 and 267] [621-E-F; 622-B]

16.2 There cannot be any justification to appear in violation of Rule 8, on the ground that the rule is arbitrary or ultra vires. The rule is not so far declared to be illegal or ultra vires by the Court. The Rule 8 is binding on the members of the Bar unless and until the rule in question is amended or declared to be arbitrary or ultra vires for any reason, it is to be observed scrupulously by members of the Bar. Rules of professional ethics are meant to be observed by all concerned. In case their observance is done in a breach that too before this Court and that too knowing its implication on the aforesaid canvassed untenable ground, no one can prevent breach of rules of ethics. If the Bar Council after making a statement has not amended the rule, the rule ought to have been questioned afresh in an appropriate petition. The appearance on behalf of the CPIL by a lawyer who is in the Executive Committee of the said Centre, cannot be said to be proper, as it is defined misconduct under the rules. This is in breach of Rule 8 of the aforesaid Rules. Until it is declared ultra vires, we hold that the advocates are bound to observe the same. [Para 268] [622-D-F]

17. Resultantly, the petition cannot be said to have been filed bona fide. Even otherwise, the petition is bereft of merit. It raises mainly the same questions which have been dealt with in the appeal. There is no such further material so as to direct further investigation or re-investigation in the case. The matter should have rested finally as the petition filed by the family members also stands dismissed by this Court raking up of the matter, again and again, is not permissible and was wholly unwarranted in the facts and circumstances of the case. The same amounts to political vendetta. The writ petition is dismissed with cost of Rs.50,000/to be deposited by petitioner with Supreme Court Bar Association Advocates Welfare Fund. [Paras 269 and 274] [622-G-H; 623-A; 624-C-D]