JUNED FARUQ HAYAT Vs. STATE OF GUJARAT

JUDGEMENT

(1.) These appeals have arisen from the orders of the learned Special Judge (POTA) rejecting the applications of the appellants for regular bail and have come up before this Court under sub-section (4) of section 34 and section 49 of the Prevention of Terrorism Act, 2002 (hereinafter referred to as "POTA") after about a year of the impugned orders. The appellants are the persons accused in POTA Case No.1 of 2003 pursuant to Godhra Railway Police Station C.R.I-9 of 2002 alleging offences punishable under sections 147, 148, 149, 337, 338, 334, 153-A, 302 and 307 of the Indian Penal Code, 1860 ("the IPC" for short), under section 141, 151 and 152 of the Indian Railway Act, under sections 3 and 4 of the Prevention of Damages to Public Properties Act and under sections 3 (2) and 3 (3) of the POTA for the alleged offence of burning of coach No.S-6 of Sabarmati Express train on 27.2.2002 at about 7.45 a.m. at Godhra Railway Station wherein 59 persons were killed and 48 persons were seriously injured. It needs to be noted at the outset that similar plea for bail made in another batch of appeals, which were filed subsequent to the present set of appeals, has been decided on 30.10.2004 by another Bench of this Court (Coram: R.K.Abichandani & H.N.Devani, JJ) after setting out in detail the facts and contentions. The present set of appeals were argued together on similar grounds and it was fairly conceded that, in the aforesaid batch of appeals, the basic facts, Crime Register Number of the offence and the allegations and contentions thereon were the same or similar. However, it was elaborately argued that the decisions and observations in those appeals were not binding as a precedent for the facts which were not in issue and the contentions which were not raised in those appeals. Therefore, the special facts which were highlighted in the present set of appeals and the additional submissions which were made are required to be dealt with and the basic facts and arguments being the same, all the appeals are decided by this common judgment.

(2.) With the above background, the version emanating from the police papers, summarised as under by the other Bench of this Court, may be adopted:

(3.) The appellants herein are, broadly speaking, part of the mob attacking coach No.S-6 from outside, according to the prosecution case. It was argued for the appellants that out of all the arrested and absconding accused, some were stated to have been arrested on the spot on 27.2.2002 at about 10.00 a.m., some were arrested late in the night with weapons and some were arrested only on the basis of the statements of a single witness recorded afterwards. None, except one, has been subjected to identification parade. By the time the first chargesheet was submitted on 22.5.2002, the police had the F.S.L. Report on 17.5.2002 showing the impossibility of the coach being set on fire from outside. By the second chargesheet, filed on 20.9.2002, the theory of burning of the coach from inside by a core group of conspirators had gained ground. There was material to suggest that the mob had gathered around the coach upon hearing that a girl was pulled into the train and chain-pulling was done by one Anwar Kalender who was not even arraigned as an accused. On the basis of these and other facts transpiring during the course of investigation and further investigation, it was submitted that, even according to the prosecution case, there was a small core group of provocateurs acting on a pre-planned conspiracy and general mob had gathered spontaneously as a result of the rumour spread by the core group. Out of the mob collected and operating outside the coach at the relevant time, the appellant in Appeal No.1637 of 2003 (Junaid Farouk Hayat), in Appeal No.27 of 2004 (Inayat Abdul Sattar Jujhara) and in Appeal No.264 of 2004 (Abdul Sattar Ismail Giteli) are alleged to have been spotted in the mob and rounded up at 10.30 a.m. but shown to have been arrested at 21.30 hours on 27.2.2002. Similarly, the appellants in Appeal No.738 of 2004 (Asgharali Kamruddin, Kamal Badshah Mohammed Sharif and Taiyebhusen Abdul Haq Khoda) have been arrested subsequently on 28.2.2002 on the basis of the statements of eye witnesses recorded later and discovery panchnamas have been made even later wherein weapons or articles attributed to them could not be recovered through or in presence of the accused themselves. The appellant in Appeal No.1638 of 2002 (Asifbhai Siddik Kadar) was arrested on 14.3.2002 on the basis of the statements of two eye witnesses which were recorded on 7.3.2002. The appellant in Appeal No.242 of 2002 (Shabir @ Bhupat Bhuriyo Abdul Rahim Badam), in Appeal No.244 of 2004 (Mohammed Sayeed Abdulsalam Badam) and the appellant in Appeal No.297 of 2004 (Muzaffar Usman Hayat) were arrested months after the incident on the basis of the statement of one Dilipbhai U.Dasadiya who had subsequently contradicted his own statement about his presence at the spot by making an affidavit. The appellant in Appeal No.267 of 2004 (Mohammed Musharafkhan Ashrafkhan Pathan) was also subsequently arrested only on the basis of the statement of one Dipak N.Soni, which was recorded on 2.3.2002. Similarly, the appellant in Appeal No.267 of 2004 (Abdul Raouf Ahmadi Yayman) was subsequently arrested only on the basis of the statement of Harsukhlal T.Advani. Nothing was recovered from either of those last mentioned two appellants and all that was alleged against them was that they were present in the mob. The appellant in Appeal No.739 of 2004 (Idris Yusuf Ismail Ravan) was arrested about a year after the incident, as a person in the mob, on the basis of the statements of eye witnesses and an iron bar was stated to have been recovered through his wife. Lastly, the appellant in Appeal No.740 of 2004 (Ishaq Mohammed Mamdu) was alleged to be present in the mob, whereas he was certified by a qualified doctor to have vision upto a distance of one metre only.