Ammani alias Rizwan vs State and Another

V. Kanagaraj, J.—The above Criminal Revision Case is filed u/s 397 r/w, 401 of the Code of Criminal Procedure praying to set aside the

order dated 16-7-2004 made in S. R. M. P. No. 659 of 2004 in S. C. No. 8/2003 by the Special Court, for exclusive trial of Bomb Blast Cases

at Poonamallee and to quash the charges framed (as 4th charge) in S.C. No. 8/2003 or direct for the stay of the examination of the witnesses cited

as L.Ws. 68 to 71 in the case, till the first respondent takes proper steps for withdrawal of the prosecution by the second respondent in Cr. No.

28/1999 and pending in C. C. No. 1/2001 before the Court of Additional Sessions Judge No. 1. Alibagh, Raigad District, Maharashtra State.

The petitioner would submit that he is the 6th accused in S.C. No. 8/2003 pending trial before the Special Court for the exclusive trial of Bomb

Blast Cases at Poonamallee; that totally 17 accused are now facing trial in the said case; that according to the prosecution case, on 30-5-1999,

bombs were implanted at various places by the accused persons in order to show their protest against the ill-treatment of the Muslim under-trial

prisoners confined in various prisons in Tamil Nadu who were said to be the members of an organization namely ""Al-Umma""; that the unexploded

bombs were said to be seized by the police and cases have been registered at various places and finally a composite charge-sheet had been filed in

Cr. No. 1018/1999 of Egmore Police Station clubbing together the cases registered in six other police stations; that, as per the charge No. 4

framed in S.C. No. 8/2003, that the petitioner herein along with the 5th accused in S.C. No. 8/2003 viz. Khan alias Rahamathullah Khan and one

unknown accused had taken explosives from Palayamkottai to Maharashtra State and the explosives were secretly kept in a house at Door No.

1980 owned by one Pandurang Bigare in Veerashwar Nagar, Mangoan Raigad District, Maharashtra State and explosives were said to have been

seized on 27-11-1999 and the Special Court for the Exclusive Trial of Bomb Blast Cases at Poonamallee had framed charges against the

petitioner and the 6th accused u/s 4(b) r/w. Section 5 of the Explosive Substances Act, 1980 and r/w. Section 34 of IPC.

The petitioner would further submit that for the same offence dated 27-11-1999, the second respondent had registered a case in Cr. No.

28/1999 in the State of Maharashtra and a charge-sheet has also been filed in C.C. No. 1/2001 before the Special Court-cum-Additional

Sessions Court, Alibagh, Raigad District, Maharashtra State u/s 4 of the Explosive Substances Act, 1980; that after his arrest, he was produced

before the Judicial Magistrate No. 1, Mangaun, Maharashtra State on 28-11-1999 and thereafter he along with the 5th accused in S.C. No.

8/2003 was brought to Chennai and produced before the XIV Metropolitan Magistrate in Cr. No. 1018/1999 on 30-11-1999; that after the

remand of the petitioner on 30-11-1999, he has been confined at various prisons in Tamil Nadu and he has been also taken to Maharashtra and

produced before the Court at Maharashtra State along with the 5th accused pending trial of the case in C.C. No. 1/2001; that before framing of

the charges in S.C. No. 8/2003 he had submitted two petitions dated 8-4-2003 and 15-12-2003 praying the Special Court for the Exclusive Trial

of Bomb Blast Cases at Poonamallee and consider his petitions and dispose the same at an early date as the prosecution of the petitioner in both

the Courts for the same offences alleged to have been committed on 27-11-1999 amounts to ""Double Jeopardy"" that the learned Sessions Judge

without disposing the said petitions dated 8-4-2003 and 15-12-2003 had framed charges on 23-12-2003 without considering the repeated pleas

of the petitioner who had represented himself before the Court as he was unable to engage a counsel.

The petitioner would further submit that the examination of the witnesses commenced on 3-2-2004 though the petitions dated 8-4-2003 and

15-12-2003 were pending for disposal and hence the petitioner has filed another petition on 9-7-2004 praying the Special Court to dispose of the

petition dated 15-12-2003 and the learned Special Judge at Poonamallee by the order dated 16-7-2004 has observed that the Court could not

express any opinion on the issue when the trial is pending and has rejected his plea as against which the petitioner has come forward to file the

above criminal revision case.

The petitioner would further submit that though criminal proceedings have been pending in two Courts for the same offence alleged as

committed on 27-11-1999, the learned Judge without following the mandate and protection provided under Article 20(2) of the Constitution of

India has framed charge No. 4 in S.C. No. 8/2003; that the other co-accused Rahamathulla Khan while in judicial custody has sent representation

to the Honourable Supreme Court of India and it was treated as a transfer petition by the Supreme Court during the year 2002; that a

communication dated 26-8-2002 was sent from the office of the Supreme Court to Rahamathullah Khan to Central Prison, Trichy asking him to

comply with the particulars mentioned in the communication and at that time, Rehamathullah Khan was not detained in the Trichy Central Prison

and he was periodically being shifted to Palayamkottal and Chennai Central Prisons also and he was unable to comply with the particulars

mentioned in the above letter dated 26-8-2002; that due to periodic shifting of the said co-accused Rehamathullah Khan, he was unable to get

proper Legal Advise and the Honourable Supreme Court on 22-8-2003 dismissed the transfer petition for non-prosecution.

The petitioner would further submit that the learned Judge observed that the first respondent has to initiate action for withdrawal of the case

registered by the 2nd respondent without directing the first respondent to withdraw the prosecution launched by the second respondent and

pending before the special Court at Raigad, Maharahstra State, the framing of the charges by the learned Judge at Poonamallee is violative of

Article 20(2) of the Constitution of India, On such grounds, the petitioner would pray for the relief extracted supra.

On the contrary, the first respondent would file a counter thereby submitting that after completion of investigation of the seven following cases,

viz. :

F2 Egmore P.S. Cr. No. 1018/1999,

D1 Triplicane P.S. Cr. No. 695/1999,

F1 Chintadripet P.S. Cr. No. 1253/ 1999,

Trichy B6 Cantonment P.S. Cr. No. 616/1999,

Coimbatore B1 Bazaar P. S. Cr. No. 1163/1999,

Thrissur Payyangady P.S. Cr. No. 137/ 1999,

Kasargode Railway P.S. Cr. No. 4/ 1999,

they have been clubbed in F2 Egmore P.S. Cr. Nos. 1018/99 and a single consolidated charge-sheet has been filed on 25-10-1999 before the

XIV Metropolitan Magistrate, Egmore, Chennai against 19 accused including two absconding accused (A. 18 and A. 19) as the investigation

disclosed that the said occurrences were taken place in pursuance of single general conspiracy hatched at various places at Tamil Nadu and other

States; that in all the above cases, separate terms of different SIT Officers have taken up the investigation under the supervision of Additional

Superintendent of Police, SIT, CBCID who is the Chief Investigating Officer and who laid the final report before the XIV Metropolitan

Magistrate, Egmore, Chennai on 25-10-1999 in view of the abovesaid circumstances.

The first respondent would further submit that in respect of F2 Egmore P.S. Cr. No. 1018/1999, a team of Officers led by the then Additional

Superintendent of Police went to Maharashtra and raided D.No. 1980, Veerashwar Nagar, Mangaon P.S. Limit, Facklan Taluk, Raigad District

on 27-11-1999 pursuant to the confessions of A. 5 Rahamathullah Khan and A. 6 Ammani and recovered 28 items of explosives and accessories

as shown in the seizure mahazar dated 27-11-1999 at 6.00 p.m.; that A.5 and A.6 were arrested on 27-11-1999 with the assistance of Raigad

District Police personnel and their confessional statements were recorded; that the explosives seized at Mangaon through the confessions of A. 5

and A. 6 and the accused were produced before the XIV Metropolitan Magistrate, Egmore, Chennai; that the investigation disclosed that a

portion of explosives and other bomb making accessories were transported by A. 18 Abubacker Siddique absconding accused from Illayangudi,

Sivaganga District and were brought to Mangaon, Mumbai and kept under the control of A.5 Rahamathullah Khan and A. 6 Ammani wherefrom

both of them were arrested.

The first respondent would further submit that in respect of the same fact, the Superintendent of Police, SIT, CBCID has filed an affidavit on

16-12-2003 before the Sessions Court for Bomb Blast cases, Poonamallee, Chennai; that as per the directions of the Special Court, Poonamallee,

the prosecution has filed the FIR of Mangaon P.S. Cr. No. 28/1999 and other connected documents for taking action; that as the seizure of

explosive materials have been effected at Mangaon P.S. limits from Raigad District, after arresting A.5 and A.6 only with the assistance of

Mangaon Police and hence the question of any intimation by the Tamil Nadu Police is not required and no special report has been given to them

since the seized explosives have been produced before the First Class Magistrate Court, Mangaon on 28-11-1999 and taken back to be

produced before the XIV Metropolitan Magistrate, Egmore, Chennai under the orders of Court; that the trial Judge has carefully scrutinized the

affidavit filed by the S.P., SIT, CBCID, Chennai on 16-12-2003 narrating the entire circumstances of this case as against the petition of the

petitioner dated 15-12-2003 and, therefore, the question of double jeopardy does not arise since the explosives seized from the possession of the

petitioner Ammani is the part and parcel of the above case in S.C. No. 8/2003 and framed the charges against the petitioner on 23-12-2003 as

this case is pending for a long time for framing charges and as the explosives seized from the petitioner at Maharashtra are the properties

concerned in S.C. No. 8/2003.

The respondent would further submit that SIT Police have nothing to do with the case pending against the petitioner in Cr. No. 28/1999 at

Mangaon P.S. for the same seizure of explosives on 27-11-1999 by the Tamil Nadu Police at Maharashtra; that it was also mentioned in the FIR

of the Cr. No. 28/1999 of the Mangaon Police that the accused and the properties were concerned in Chennai Egmore P.S. Cr. No. 1018/1999;

that having known all the facts, the Mangaon Police have laid another charge-sheet for the same seizure of explosives from the petitioner, in

charge-sheet No. 41/2000 on 14-12-2000 before the Additional Sessions Court No. 1, Alibagh, Raigad District, Maharashtra which is pending in

C.C. No. 1/2001; that expeditious trial is taking place in S.C. No. 8/2003 at Poonamallee and so far 162 witnesses have been examined as on 7-

12-2003 and if any stay is granted, the other accused 16 in number languishing in the prison for about 4 1/2 years will suffer and the trial would be

stopped. On such grounds, the respondents would pray to dismiss the above criminal revision case.

During the course of arguments, the learned counsel for the petitioner would re- iterate the point of double jeopardy and would pray to allow

the above criminal revision case.

On the contrary, the learned Government Advocate on the criminal side, besides narrating the contents of the counter, would submit that the

present case is pertaining to the incidents that took place on 30-5-1999, but whereas the case registered by the Maharashtra Police is pertaining to

the incident that took place on 29-9-1999; that if at all, the petitioner have to approach either the Bombay High Court or the Honourable Supreme

Court for remedy by filing necessary petitions and that the petitioner cannot get any remedy before this Court and would pray to dismiss the above

criminal revision case.

The above Criminal Revision case has been filed by the petitioner, who is the accused in S.C. No. 8 of 2003 on the file of the Special Court

for the Exclusive Trial of Bomb Blast Cases at Poonamallee against the order in S.K.M.P. No. 659 of 2004 in S.C. No. 8 of 2003 thereby

dismissing the application filed by the revision petitioner herein on ground that the said Court cannot pass such an order and it is only the

respondents who should initiate such measures and on further ground that the trial also commenced thus ultimately dismissing the application filed

by the petitioner seeking the remedy on the sole ground that on one and the same cause of action two distinct and different cases have been

registered against the petitioner, one in Crime No. 1018 of 1999 on the file F-2 Police Station, Egmore, Chennai which has been taken on file by

the lower Special Court as per S.C. No. 8 of 2003 and the other in Crime No. 28 of 1999 on the file of Mangaon, Raigad District, Maharashtra

State in C.C. No. 1 of 2001 by the Court of First Additional Sessions Judge, Alibag, Raigad District, Maharashtra State.

The case of the petitioner/accused is that the case which has been taken cognizance of by the lower Court i.e. the court of the Special Judge

for the Exclusive Trial of Bomb Blast Cases at Poonamallee for the commission of the offences punishable u/s 4-B r/w Section 5 of the Explosive

Substances Act, 1908 r/w Section 34 of IPC wherein the trial has commenced. It is further stated that in the other case taken cognizance of by the

Court of First Additional Sessions Judge, Alibag, Raigad District, Maharashtra State has also been taken cognizance for the commission of the

offence punishable under Sections 4-B and 5 of the Explosive Substances Act, 1908 and it is said that he is produced for each hearing before that

Court.

The contention of the petitioner is that both the cases referred to above have arisen from out of one and the same cause of action on accusation

that on 27-11-1999 when the petitioner joining hands with some other accused on reliable information at door No. 1980, Veereshwar Nagar,

Mangaon Police Station Limits at Fackhan Taluk, Raigad District, Maharashtra State was found in possession of the prohibited explosive

substances and was arrested along with the other accused further effecting the seizure of the contraband based on which the first respondent

registered a case in Crime No. 1018 of 1999 on the file of F-2, Egmore Police Station, Chennai and the second respondent also registered a case

in Mangaon Police Station (Raigad District, Maharashtra State) Crime No. 28 of 1999 and it is the case of the petitioner that on one and the same

cause of action both the above cases were registered and they have been taken cognizance of by the said Courts i.e. the Special Court for the

Exclusive Trial of Bomb Blast Cases at Poonamallee referred to above and First Additional Court Sessions Judge, Mangaon, Raigad District,

Maharashtra State. According to the petitioner whether by the respondents herein or by the Courts concerned wherein both the above cases are

pending one at Chennai and the other at Maharashtra State there is no controversy and it is admitted fact that both the above cases have arisen

from out of the one and the same cause of action that has taken place on 27-11-1999 in causing the arrest of the petitioner at door No. 1980,

Veereshwar Nagar, Mangaon Police Station Limit, (sic) Falkhan Taluk, Raigad District, Maharashtra State along with the seizure of some

explosive substances shown as case properties in the case registered by the first respondent herein and in law there cannot be two cases registered

nor tried which is deadly opposed to Article 20(2) of the Constitution of India and seeking to set aside the order passed by the Court of Special

Judge by the Court for the Exclusive Trial of Bomb Blast Cases at Poonamallee and to quash the charges framed (as the fourth charge) in S.C.

No. 8 of 2003 and to direct for stay of the examination of the witnesses cited as L.Ws. 68 to L.Ws. 71 in the case till the first respondent takes

proper steps for withdrawal of the prosecution by the second respondent in Cr. No. 28/1999 and pending in C.C. No. 1/2001 on file of the Court

of Additional Sessions Judge No. 1, Alibagh, Raigad District, Maharashtra State.

In the above factual situation ft is relevant to consider particularly the provisions of the Constitution of India under Article 20(2) which reads

No person shall be prosecuted and punished for the same offence more than once"". No mention need be made that it embodies the doctrine of

double jeopardy.

There is no controversy nor denying of the fact that on the part of both the respondents the cause of action that has arisen in both the above

cases registered by the respondents and taken cognizance of by the respective Courts is one and the same and in such a situation when there is no

controversy at this point and the fact that both these cases have arisen from out of the same cause of action would only lead the situation not to

permit the two different trials to be held by two different Courts as it is in the case in hand one by the Court of Special Judge for the Exclusive Trial

of Bomb Blast Cases at Poonamallee and the other one by the Court of First Additional Sessions Judge, Raigad District, Maharashtra State and

on admitted facts both cannot be permitted to get on with the trial of the same cause, which is in violation of Article 20(2) of the Constitution of

India and it is necessary and incumbent on the part of this Court to do away with one case.

So far as the further admitted facts are concerned the said case has been detected at door No. 1980, Veerashwar Nagar, Mangaon Police

Station Fackhan Taluk, Raigad District, Maharashtra State and the territorial jurisdiction would go only to the second respondent, the contraband

connected i.e. the explosive substances have also been seized only from that place; the accused have also been arrested within the territorial

jurisdiction of the second respondent by both the first and second respondents and then were produced before the Magistrate concerned therein

and, therefore, it is only for the case registered in Crime No. 28 of 1999 on the file of the second respondent is permitted to continue which is

pending before the First Additional Sessions Judge, Alibagh, Raigad District Maharashtra State, it goes without saying that the case registered by

the first respondent in crime No. 1018 of 1999 on the file of F-2, Police Station, Egmore, Chennai pending on the file of the Special Court for the

Exclusive Trial of Bomb Blast Cases at Poonamallee in S.C. No. 8 of 2003 (as against the 4th charge) has to be quashed and the same is ordered

accordingly.

In result,

(i) The above Criminal Revision Case succeeds to the extent indicated above, in the preceding paragraph;

(ii) The order passed by the Court of Special Judge for Exclusive Trial of Bomb Blast Cases at Poonamallee dated 16-7-2004 made in S.R.M.P.

No. 659 of 2004 in S.C. No. 8 of 2003, (as against 4th charge alone) is hereby quashed;

(iii) Consequently, connected Crl. M.P. No. 11822 of 2004 is closed;