1. Challenge in this Criminal Appeal filed under Section 34 of the Prevention of Terrorist Act (`POTA' for short) is to the correctness of the Order dated 29.10.2010, rendered in Criminal Misc. Application No. 2907 of 2010, by the Special Judge (POTA), Ahmedabad, by which the application filed by the appellant under Section 49 of the POTA read with Section 439 of the Code of Criminal Procedure, seeking regular bail, during the pendency of trial in connection with the FIR registered at CR No. I-314 of 2002 with Sector 21 Police Station, Gandhinagar, has been rejected.
2 As per the prosecution case, on 24.9.2002, the Swaminarayan Akshardham Temple, situated at Gandhinagar, was attacked by two persons and during indiscriminate firing, 33 persons have lost their lives and several persons were injured. Therefore, a complaint came to be lodged by G.L. Singhal, DSP, Gandhinagar under Sections 120-B, 302, 307, 153 (1), 451 of the Indian Penal Code as well as under Sections 25(1) (AA) of the Arms Act and Sections 3 and 7 of the Explosive Substance Act and also under Section 135(1) of the Bombay Police Act, which came to registered at CR No. I-314 of 2002 with Sector 21 Police Station, Gandhinagar.
2.1 During the course of investigation of the aforesaid complaint, the investigation was transferred to Crime Branch, Ahmedabad and offences of POTA were added by the Investigating Officer and thereafter the police arrested six persons, namely, (1) Altafhussain Akbarhussain Malek, (2) Adambhai Sulemanbhai Ajmeri, (3) Moh'd Salim Hanif Shaikh, (4) Abdul Kayyum Moh'd Hussain Mansuri, (5) Abdullahmiya Yasinmiya Kadari and (6) Shanmiy @ Chandkhan Sajjadkhan. After completion of investigation, police filed charge sheet in the court of Special POTA Judge, against the aforesaid six accused and around another 28 accused who were shown as absconding.
2.2 The Special Judge, Pota, concluded the trial against the aforesaid six accused persons and they were convicted on 1.7.2006 and their conviction was confirmed by the High Court of Gujarat on 1.6.2010.
2.3 After completion of the trial of the above six accused persons, the present appellant came to be arrested by Crime Branch, Ahmedabad, when the present appellant and his family reached from Saudi Arabia through flight to Hyderabad Airport on 18.7.2009. Thereafter, the present appellant was produced before the Trial Court along with production report and his remand was sought on eleven grounds, which was granted by the Trial Court.
2.4 After completion of investigation, police filed supplementary charge sheet against the present appellant before the Special Judge, POTA on 30.10.2009. During the pendency of trial, the appellant has filed a Criminal Misc. Application No. 1033 of 2010 before the Special Judge, POTA, which came to be rejected, vide order dated 30.4.2010.
2.5 After completion of one year of the arrest of the appellant, the appellant has again approached before the Special Judge, POTA, by filing an application, being Criminal Misc. Application No. 2907 of 2010, inter alia, praying to enlarge him on regular bail during the pendency of the trial, which came to be rejected vide order dated 29.10.2010 on the ground that there is no change in the fact situation which can have direct impact on the earlier decision and the completion of one year from the date of arrest is a change of no consequences, the judicial propriety demands that except in a substantial change of circumstances the earlier order should not be reversed and more particularly when the same has been decided by dealing it in a great detail on the merits of the case, which has remained intact.
2.6 The appellant feeling aggrieved by the aforesaid order passed by the Special Judge, POTA, filed the instant criminal appeal under Section 34 of the POTA.
3 We have considered the submissions advanced by Mr. M.H.M. Shaikh, learned Advocate for the appellant and Mr. J.M. Panchal, learned Special Public Prosecutor for the respondent State of Gujarat. We have also perused the averments made in the application as well as the FIR and the order dated 29.10.2010 passed by the Special Judge, POTA, Ahmedabad, rejecting the bail application.
4 At the outset, we have noted that before the learned Special Judge, POTA, this was the successive bail application for bail on the ground of the change in circumstances. The only change in circumstance is to the effect that after the arrest of the present appellant, one year has already been passed and the trial is not yet concluded. According to us, this is not a change in circumstances, which would entitle the appellant to release him on regular bail during the pendency of trial. Besides this and a perusal of the police statement as well as the impugned order, we have noticed the following things:
i) The appellant was absconding for a considerable long time, therefore, warrant under Section 70 of the Criminal Procedure Code was issued on 4.1.2.2003 against the present appellant accused. Thereafter, proceedings under Section 82 of the Criminal Procedure Code were undertaken and a proclamation requiring the appearance of the present appellant accused was also made on 3.8.2004. Thereafter, the present appellant accused came to be arrested on 18.7.2009 by Police.
ii) The appellant accused was prima facie found guilty of committing the alleged offences as there are statements of witnesses linking the present appellant with the crime.
iii) As held by the Special Court, POTA, in its previous order that the appellant accused is facing very strong prima facie case which aspect has not been changed and it is a very vital aspect.
iv) The appellant accused is facing serious charge of knowingly acting against the interest and integrity of the nation by actively helping the cause of terrorism.
v) In the totality of the circumstances, temptation to jump the bail by the appellant cannot be ruled out.
vi) The conviction recorded by the Special Judge, POTA, against six accused persons has been confirmed by the High Court of Gujarat. Out of these six accused persons, three accused were awarded the death sentence; one accused was awarded rigorous imprisonment for life, one accused was awarded rigorous imprisonment of 10 years and one accused was awarded the imprisonment of five years.
Vii) So far as the present appellant is concerned, the Investigating Officer has filed the charge sheet and the trial has already commenced; and
Viii) Earlier bail applications were decided on merits and the same were not carried in Appeal and, therefore, orders passed in earlier bail applications reached finality.
5 On overall view of the matter, we are of the considered opinion that completion of one year itself would not entitle the appellant to be enlarged on regular bail and more so when there is a strong prima facie case against the appellant accused for commission of offence with which he is charged.
6 Seen in the above context, according to us, there is no infirmity and/or irregularity committed by the Trial Court in rejecting the successive bail application filed by the appellant. Therefore, instant appeal lacks merit and deserves to be dismissed at the inception.
7 For the foregoing reasons, the appeal fails and accordingly it is dismissed.