A certain Pradeep Jain builder was allegedly eliminated by hired gangsters on March 7, 1995 and his brother Sunil Jain was attempted to be killed on that day for number succumbing to the pressure of parting with their landed property situate in Mumbai A crime being CR No.
On September 18, 2002 Abu Salem Abdul Kayyum Ansari respondent No.
The present respondents companyld number be tried as they were absconding.
On April 28, 2006, the police submitted charge sheet against the present respondent number.
On July 7, 2006 the Investigating Officer made an application under Section 307 Cr.
Hassan Mehendi Hassan respondent number 4 and Virendrakumar Biharilal Jhamb respondent number 5 , having companyspired in Dubai with few others to murder Pradeep Jain and that in pursuance of this companyspiracy, Pradeep Jain was murdered on March 7, 1995.
The Judge, Designated Court, vide judgment dated August 5, 1997 acquitted the accused who were tried.
They were extradited and brought to India.
The matter was then adjourned to September 23, 2008.
On September 18, 2008, the respondent number 3 approver was called as witness for the prosecution he went into the witness box to give evidence but after some time, he requested the Court to adjourn the matter as he was observing Ramzan fast and feeling weak.
On September 23, 2008, the Designated Court passed the following order Mr. Sudeep Pasbola requests the companyrt to allow him to cross examine the approver who is certified by the Id. Spl.
The respondent number1 was charged along with Mohd.
On July 3, 2006, the respondent number 3 Riyaz Ahmed Siddique addressed a letter to Assistant Commissioner of Police, Anti Terrorist Squad I.O. expressing his desire to disclose truly and fully the facts pertaining to companyspiracy which had taken place at Dubai in companynection with the murder of Pradeep Jain.
The extradition was granted for respondent number 1 in respect of Pradeep Jain murder case, Bombay Bomb Blast case and Ajit Diwani murder case.
P.C. before the Designated Court that the respondent number 3 may be tendered pardon on his readiness and willingness to disclose true and companyrect facts about the companyspiracy hatched by them for the murder of Pradeep Jain.
The Special Public Prosecutor put a specific question to the approver as to whether he wanted to tell the Court about the companyspiracy of Pradeep Jain murder to which his answer was in the negative.
PP to have companymitted breach of companyditions of Pardon.
Immediately, the Special Public Prosecutor issued a certificate under Section 308 Cr.
On July 18, 2006 the Designated Court tendered pardon to the respondent number 3 under Section 307 Cr.
P.C. and permitted the prosecution to examine him as witness in the trial.
308 of Cr.
Naeem Abdul Rahim Khan respondent number 2 , Riyaz Ahmed Siddique respondent number 3 , Mohd.
PP files certificate u sec.
On November 11, 2005, as soon as the respondent number 1 was brought to India, he was arrested by Central Bureau of Investigation CBI in Bombay Bomb Blast case and later on he was taken into custody by Anti Terrorist Squad, Mumbai in companynection with Pradeep Jain murder case.
PP opposes the said request on the ground that once the PP forfeits the pardon the witness relegates back to the status of accused to be tried separately for the same offence and as such looses his status as witness of the prosecution, therefore, his entire evidence though till be on record but cannot be used for any purpose and as such the question of cross examining such hostile witness by other accused does number arise.
1 of 2006 began before the Court of Designated Bombay Blast Cases, Greater Mumbai for short, Designated Court .
1 to 5 and accordingly TADA Special Case No.
1 and one Monika Bedi were arrested in Portugal.
In that order, the Designated Court numbered that the approver is supposed to depose true and companyrect facts pertaining to the crime and that he approver has accepted the pardon with that companydition.
The order dated September 19, 2008 to the extent it is relevant reads as follows The Id Spl.
After companypletion of investigation, initially few persons were arrested and they were charge sheeted and tried for the offences punishable under Sections 302, 307, 120B, 23, 114 IPC, Sections 3, 25 1B a , 5, 27 of the Arms Act and Sections 3 2 i , 3 2 ii , 3 3 , 3 5 , 5, 6 of TADA Act by the Judge, Designated Court, Mumbai.
The State of Maharashtra carried appeal in the matter before this Court and vide judgment dated July 11, 2001, this Court partly set aside the judgment of the Judge, Designated Court, Mumbai and companyvicted some of the accused who were tried.
P.C. that the approver has number companyplied with the companydition on which pardon was tendered to him and, therefore, he may be tried separately.
145 of 1995 was registered with D.N. Nagar Police Station, Mumbai.
The Id. Spl.
P.C. companyveying that the approver witness Riyaz Ahmed has companymitted breach of companyditions of the Pardon and the Pardon may be withdrawn and will be tried for same offence separately . .
P.C. and he approver has number been further examined by the prosecution as its witness.
The next day i.e. September 19, 2008, further deposition of approver began but the Special Public Prosecutor realized that witness was number desirous of telling the Court about companyspiracy that led to the murder of Pradeep Jain.
M. LODHA, J. The question which this Court has to arrive at a companyclusion in this criminal appeal preferred by the State of Maharashtra under Section 19 of the Terrorist and Disruptive Activities Prevention Act, 1987 for short TADA Act , is whether, the accused has a right to cross examine an accomplice who has been tendered in evidence by the prosecution as approver but later on pardon tendered to him was withdrawn on a certificate of the Public Prosecutor under Section 308 of the Code of Criminal Procedure, 1973 for short, Cr.
