Bombay High Court
Farhan Abdul Malik Khot vs State Of Maharashtra on 4 March, 2024
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
2024:BHC-AS:10143-DB
IA-2277-23.doc
BDP-SPS-
BHARAT
DASHARATH
PANDIT
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed
by BHARAT
CRIMINAL APPELLATE JURISDICTION
DASHARATH
PANDIT
Date: 2024.03.04
INTERIM APPLICATION NO.2277 OF 2023
10:42:03 +0530
IN
CRIMINAL APPEAL NO.648 OF 2016
Farhan Abdul Malik Khot .... Applicant.
V/s
State of Maharashtra
at the instance of the DCB CID ..... Respondent.
Ms. Rebecca Gonsalvez for the Applicant/Appellant.
Mrs. Aruna S. Pai, Spl. P.P. for Respondent-State.
CORAM: A.S. CHANDURKAR &
JITENDRA JAIN, JJ.
SUBMISSIONS HEARD ON : 27/02/2024
ORDER PRONOUNCED ON : 04/03/2024
P.C.:-
1] By this application, the applicant who is accused No.6 in POTA
Special Case No.2 of 2003 seeks suspension of the sentence imposed in
the said criminal trial and further prays that he be enlarged on bail
pending consideration of the criminal appeal.
2] By the judgment dated 29/03/2016, the applicant came to be
convicted for having committed offences under Sections 3(3) and 4(b)
IA-2277-23.doc
of the Prevention of Terrorism Act, 2002, Section 4(b) and section 5(a)
of the Explosive Substances Act, 1908 as well as under Sections 3, 7
and 25(1-A) of the Arms Act, 1959. He was sentenced on 06/04/2016
to suffer rigorous imprisonment for a period of ten years for the offence
committed under Sections 3(3) and 4(b) of the Prevention of Terrorism
Act, 2002, rigorous imprisonment for a period of five years for the
offences committed under section 5(a) of the Explosive Substances Act,
1908 and under Sections 3, 7, 25(1-A) of the Arms Act, 1959. The
applicant has undergone these sentences. He has also been imprisoned
for life under Section 4(b) of the Explosive Substances Act, 1908. The
applicant is presently undergoing this sentence and it is in that
backdrop that the present application has been moved.
3] The record indicates that after his conviction, the applicant had
moved an application for suspension of the sentence vide Criminal
Application No.1140 of 2016. This application was considered and
rejected on 21/10/2016. This order was subjected to challenge before
the Supreme Court which did not interfere with the order dated
21/10/2016 and dismissed the Criminal Appeal on 15/09/2017.
However, for some period of time, the applicant was enlarged on
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interim bail in view of contingencies then arising. The applicant
surrendered on 15/12/2017 after expiry of the period of grant of
interim bail.
The applicant preferred another application for suspension of
sentence making various prayers including the prayer for grant of bail.
This prayer was rejected on 11/04/2018 in Criminal Application
No.266 of 2018. The applicant, however, was enlarged on temporary
bail for a short period.
The applicant moved Criminal Application No.1213 of 2018
praying for fixing an early date of hearing of the appeal as well as
praying for release on bail. On 02/12/2019, the prayer for release on
bail was not pressed.
The applicant then moved Criminal Application (St)
No.2888/2020 seeking his enlargement on bail during pendency of the
appeal. This application came to be rejected on 23/09/2022. The
aforesaid order was challenged before the Supreme Court. On
16/01/2023 the Supreme Court did not interfere with the order passed
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by the Division Bench refusing to enlarge the applicant on bail.
However, it observed that if a fresh application was filed, the same
should be considered on its own merits and in accordance with law. It
is in the aforesaid backdrop that the present Interim Application has
been moved.
4] Ms. Gonzalvez, the learned Counsel for the applicant took us
through the paper-book and referred to the material on record to urge
that the material collected by the prosecution was insufficient to link
the applicant with the preparation and planting of the bombs that
resulted in registration of the aforesaid offences. Reference was made
to the confessional statements of accused Nos. 8 and 11, statements
recorded under Section 27 of the Indian Evidence Act followed by the
recoveries which were stated to have been made from different places
that were easily accessible and that too after about 12 days from the
incident, reports of the Forensic Science Laboratory to urge that
presence of TNT was not found. It was submitted that other accused
including accused Nos. 3 and 4 had been released on bail. Though the
case of the present applicant may not be termed to be identical as that
of accused No.4, the role attributed to the applicant was similar to that
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of the said accused. It was then submitted that the applicant had
undergone actual sentence of about 15 years, 6 months 27 days as on
30/10/2022 and about 17 years with remissions. Referring to various
orders passed by the Supreme Court including the orders passed in SLP
(Crl) No.11554 of 2022, Criminal Appeal No.98 of 2013 and Criminal
Appeal No.1367 of 2011, it was submitted that the sentence undergone
by the convicts therein ranged from 10 years to 12 years and in such
circumstances said convicts had been enlarged on bail. An order was
passed by the Home Department on 20/06/2022 not to prematurely
release the applicant was also referred to. Though the criminal appeals
had been fixed for final hearing, they were not yet heard and hence in
these circumstances, it was prayed that during pendency of the appeal,
the applicant be enlarged on bail by imposing appropriate conditions.
5] Mrs. Aruna Pai, the learned Special Public Prosecutor for the
State opposed the Interim Application and submitted that by the earlier
orders dated 21/10/2016 and 23/09/2022 a similar prayer as made in
the present application had been considered and rejected. Merely
because the applicant had undergone sentence of about 15 years could
not be treated as a relevant consideration for enlarging the applicant on
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bail only on that count. The sentence imposed on the applicant for his
conviction under Section 4(b) of the Explosive Substances Act, 1908
was for life which meant that such sentence would be required to be
suffered for the entire life. Reference in that regard was made to the
decisions in (2012) 8 SCC 537 (Sate of Uttar Pradesh vs. Sanjay
Kumar) and (2013) 2 SCC 452 (Sangeet and Another vs. State of
Haryana). It was further submitted that considering the serious nature
of offence that resulted in about 12 deaths and injuries to about 139
persons, the State Government had refused to prematurely release the
applicant by its order dated 20/6/2022. It was thus submitted that
considering the fact that two earlier applications moved by the
applicant for suspension of sentence and enlargement on bail had been
unsuccessful and there being no change of circumstances placed for
consideration, the present application was liable to be rejected.
6] On hearing the learned Counsel for the parties and after perusing
the relevant material to which our attention was invited, we find that
the applicant has not made out any case for suspending the sentence
imposed upon him and for releasing him on bail during pendency of
the appeal in the light of the serious nature of the crime. The order
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dated 21/10/2016 rejecting the first application made by the applicant
for suspension of the sentence considers similar submissions that have
been urged in support of the present application. This Court after
considering relevant material has been pleased to observe that re-
appreciation of such evidence at the stage of consideration of the
application for suspension of sentence was not warranted. Reference
has also been made to the reports of the Forensic Science Laboratory
and it has been thereafter observed that the discrepancies sought to be
pointed out were not so glaring so as to make the recoveries doubtful.
The subsequent application making a similar prayer came to be rejected
on 23/09/2022. We do not find it necessary to re-consider some what
similar grounds with regard to the material on record that was pointed
out to urge that the recoveries were doubtful, as the same could not be
linked with the applicant in the context of the role attributed to him as
well as the findings of the Forensic Science Laboratory. On the basis of
the material pointed out, we find that no different conclusion from the
one that has been recorded in the order dated 21/10/2016 can be
drawn.
7] The learned Special Public Prosecutor is justified in relying upon
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the decisions in Sanjay Kumar (supra) and Sangeet and Anr (supra) to
contend that since the applicant has been sentenced to suffer life
imprisonment, the fact that the applicant has undergone actual
imprisonment of 15 years would not be relevant consideration to
consider his request only on that count. Moreover, by the order dated
20/06/2022 the Home Department has passed an order declining to
release the applicant prematurely as a result of which the aspect of
remissions loses its significance.
8] For the aforesaid reasons, we do not find any ground made out to
grant the prayers made in the Interim Application. It is accordingly
rejected.
[ JITENDRA JAIN, J. ] [ A.S. CHANDURKAR, J.]
