Bombay High Court
Ministry Of Civil Aviation vs The State Of Maharashtra And Anr. on 3 November, 2025
Author: R.N. Laddha
Bench: R.N. Laddha
2025:BHC-AS:46553
Chitra Sonawane. 1.wp1558,2456,2457-18.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
Criminal Writ Petition No.1558 of 2018
1. Delhi Police through DCP,
Special Cell, New Delhi.
2. Lalit Mohan Negi,
Adult, Occ: Service,
Asst Commissioner of Police,
Add: Office of Special Cell,
Lodhi Colony, New Delhi.
3. Hridaya Bhushan,
Adult , Occ: Service
Asst Commissioner of Police,
Add: Office of Special Cell,
Lodhi Colony, New Delhi. ... Petitioners.
Versus
1. State of Maharashtra ... Respondent No.1/
Orig Complainant.
2. Sayyad Zabiuddin Sayyad Zakiuddin,
Adult, Occ: Not known,
Presently lodged at Arthur Road
Prison, Byculla, Mumbai,
Maharashtra. ... Respondent No.2/
Orig Accused.
Page 1 of 36
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With
Criminal Writ Petition No.2456 of 2018
Ministry of External Affairs,
Through, Its Secretary, Having
its Branch office at Videsh Bhavan
Bandra Kurla Complex,
Plot No.C-45, G Block, Bandra (E)
Mumbai-400 051. ... Petitioner.
Versus
1. State of Maharashtra
2. Sayyad Zabiuddin Sayyed Zakiuddin
Adult, Occ: Not known
presently lodged at Arthur Road Prison
Byculla, Mumbai, Maharashtra. ... Respondents.
With
Criminal Writ Petition No.2457 of 2018
Ministry of Civil Aviation,
Through, its Director, Having
its office at Rajiv Gandhi
Bhavan, New Delhi. ... Petitioner.
Versus
1. State of Maharashtra
2. Sayyed Zabiuddin Sayyad Zakiuddin
Adult Adult, Occ: Not known,
Page 2 of 36
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Presently lodged at Arthur Road
Prison, Byculla, Mumbai,
Maharashtra. ... Respondents.
----
Mr Tushar Mehta, Solicitor General of India (through VC), a/w.
Mr Anil Singh, Additional Solicitor General, Mr Aditya
Thakkar, Mr DP Singh, Mr Aayush Kedia, Mr Aadarsh Vyas,
Mr Krishnakant Deshmukh, Mr Rama Gupta, Mr Rajdatt
Nagre, Mr Bhuvan Kapur and Mr Aman Mehta, for the
Petitioners in all petitions.
Mr BB Kulkarni, APP, for Respondent No.1/State.
Dr Yug Chaudhary, a/w. Mr Gaurav Bhawnani, Mr Anush
Shetty and Ms Mayanka SR, i/b. Khan Abdul Wahab, for
Respondent No.2 in all petitions.
----
Coram: R.N. Laddha, J.
Reserved on: 17 October 2025.
Pronounced on: 3 November 2025.
Order :
The present writ petitions have been instituted to
challenge the impugned order passed below Exhibit Nos.284 to
288 by the learned Additional Sessions Judge, Mumbai, in
Sessions Case No.198 of 2013, whereby the Petitioners have
been directed to produce certain documents in exercise of
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powers under Section 91 of the Code of Criminal Procedure,
1973 (CrPC). Since all these petitions involve common
questions of law as well as fact, they are being disposed of by
this common order with the consent of learned Counsel
appearing for the respective parties.
2. Mr Tushar Mehta, learned Solicitor General appearing on
behalf of the Petitioners, contended that Respondent No.2 is a
key conspirator in the 26/11 Mumbai terrorist attacks, having
actively participated in their planning and execution alongside
Lashkar-e-Taiba operatives. He provided strategic input, trained
attackers, and maintained operational oversight via VoIP from
Karachi. Consequently, he faces trial under a wide array of
penal statutes, including the IPC, UAPA, Arms and Explosives
Act, and others. During the trial, Respondent No.2 filed
multiple applications under Section 91 of CrPC, seeking the
production of documents unrelated to the substantive charges,
including passports, flight manifests, and immigration records.
These were allowed by the trial Court without hearing the
Petitioners, thereby violating principles of natural justice.
3. It is submitted that the scope of Section 21 of the National
Investigation Agency Act, 2008 (NIA Act), unequivocally
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excludes the maintainability of appeals before the High Court
against interlocutory orders passed by the Special Court,
whether on questions of fact or law. The sole exception to this
statutory bar is carved out under Sub-Section (4) of Section 21,
which permits an appeal against an order granting or refusing
bail. In accordance with the legislative framework of Section
21, no appellate remedy is envisaged in respect of interlocutory
orders other than those pertaining to bail. The learned Solicitor
General has further contended that orders passed under Section
91 of CrPC, directing the production of documents, are
interlocutory in nature and, therefore, fall outside the purview
of revision under Section 397(2) CrPC. In view of the statutory
embargo under Section 21 of the NIA Act, the Petitioners,
being aggrieved by the impugned interlocutory order, have
invoked the jurisdiction of this Court under Article 227 of the
Constitution of India. It is submitted that the supervisory
jurisdiction conferred upon the High Court under Article 227 is
plenary in nature and cannot be curtailed or fettered by any
statutory enactment. Accordingly, the objection raised by
Respondent No.2, suggesting that the present writ petitions
ought to be placed before the Division Bench, is misconceived
and untenable in law.
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4. The learned Solicitor General has further submitted that
the impugned order, not being one that either grants or refuses
bail, does not fall within the ambit of Section 21(4) of the NIA
Act. Moreover, the determination of whether an order is
interlocutory or final must be made from the standpoint of the
party seeking redress. Where a non-party is summoned and
directed to produce documents, such an order may have
adverse consequences upon such person, thereby rendering it
amenable to challenge under Article 227. It is further submitted
that the Constitutional powers vested in this Court under
Article 227 are not subject to statutory limitations and remain
exercisable in cases involving manifest injustice or procedural
irregularity.
5. The learned Solicitor General submitted that Respondent
No.2 did not, at any stage during remand or judicial custody,
raise any objection to the legality of his arrest. His present
attempt to do so, at a belated stage, is procedurally untenable
and devoid of relevance to the adjudication of the present trial.
It is further contended that the documents sought by
Respondent No.2 pertain solely to procedural aspects
surrounding the arrest and do not bear upon the merits of the
case. The production of such documents would serve no
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legitimate purpose and would instead facilitate a roving and
fishing inquiry, thereby impeding the expeditious conduct of
trial and defeating the ends of justice. The invocation of Section
91 CrPC for such purposes, it is argued, is impermissible. The
said provision confers a guided and circumscribed power upon
the Court, which must be exercised with judicial scrutiny and in
furtherance of relevance and necessity. The learned trial Court,
it is submitted, failed to apply such scrutiny in entertaining the
application for production of documents that are neither
germane nor indispensable to the determination of the
accused's culpability. Respondent No.2 seeks documents
pertaining to the manner and place of his arrest and the process
by which he was brought within the jurisdiction of the Court.
The learned Solicitor General submitted that such details are
wholly immaterial to the core issue of guilt or innocence in
respect of the offences alleged. Section 91 CrPC must be
construed in its entirety and cannot be invoked to pursue
collateral procedural inquiries that do not advance the
adjudicatory process. Without prejudice to the above, it is
further submitted that even assuming, arguendo, that
procedural irregularities occurred in the course of arrest, such
irregularities do not vitiate the trial proceedings. Accordingly,
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any alleged pre-trial irregularities, particularly those concerning
the manner in which the accused was brought before the Court,
do not impinge upon the legitimacy or validity of the trial. The
learned Solicitor General further submitted that the documents
sought by Respondent No.2 are neither 'necessary' nor
'desirable' for the just determination of the trial proceedings.
Their production would not serve the interest of justice and
would instead derail the proceedings by introducing extraneous
procedural contentions unrelated to the substantive
adjudication of guilt.
6. The learned Solicitor General further submitted that
public interest may justify the non-disclosure of the
information, particularly in situations involving national
security. The matters of national security are not within the
purview of judicial review, and the executive is best positioned
to determine what constitutes national security, and that judicial
review should respect this discretion. It is a settled principle
across the world that national security, or protecting witnesses,
may justify withholding certain information from an accused in
certain situations.
7. The learned Solicitor General also submitted that the
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learned trial Court erred in appreciating the scope and
limitations of Section 91 CrPC. While the language of the
provision is admittedly broad, its application is circumscribed
by the statutory requirement that the production of documents
must be deemed necessary or desirable for the purposes of the
trial or other proceedings under the Code. It is contended that
the invocation of Section 91 must be guided by a statutory
threshold, and that indiscriminate reliance on the provision,
absent such necessity or desirability, is impermissible.
8. The learned Solicitor General, advancing submissions in
the context of the present proceedings, contended that
Respondent No.2 was produced before the jurisdictional Court
pursuant to an order issued under Section 267 of CrPC, while
he remained in lawful custody under the jurisdiction of Courts
in Delhi. In support of this contention, the learned Solicitor
General placed reliance upon the following documents: (i) A
production warrant dated 25 June 2012 issued by the Court of
Additional Chief Metropolitan Magistrate, 37th Court,
Esplanade, Mumbai; (ii) A communication dated 26 June 2012
addressed by the Senior Inspector of Police, Unit I, Detection
Crime Branch, CID, Mumbai, to the Superintendent of Tihar
Jail, Delhi; (iii) A requisition letter dated 25 June 2012 issued
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by the said Magistrate to the Chief Metropolitan Magistrate,
30th Court, Tis Hazari, Delhi; and (iv) An application filed by
the Senior Inspector of Police, Unit I, Detection Crime Branch,
CID, Mumbai, before the Chief Metropolitan Magistrate, 30th
Court, Tis Hazari, Delhi. It was thus submitted that the
assertion of Respondent No.2 regarding his alleged transfer
from a foreign jurisdiction bears no relevance to the
adjudication of the present matter, inasmuch as his production
was effected solely through the judicial process delineated
above. Consequently, the learned Solicitor General urged that
the documents sought by the accused are neither necessary nor
germane to the determination of the present case.
9. The learned Solicitor General further contended that
Respondent No.2 did not raise any contemporaneous objection
or grievance before the learned Magistrate during the
successive remand proceedings, nor did he object upon being
produced before the Court at Mumbai. It is submitted that once
an accused, i.e., Respondent No.2, is placed under lawful
custody and afforded adequate opportunity to avail of legal
remedies and defend himself, the situs of arrest ceases to hold
any legal relevance. Furthermore, the impugned order directing
the production of documents is extraneous to the subject
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matter of the present trial, constitutes a roving and speculative
inquiry, and unjustifiably prolongs the trial.
10. It is submitted that Section 91 of the CrPC does not
confer an unqualified or absolute right upon any party to
compel the production of documents. Rather, the said
provision vests discretionary authority in the Court to direct
such production only upon satisfaction that the document or
item is necessary or desirable for the purpose of any inquiry,
trial, or other proceeding. In the present matter, the documents
sought by Respondent No.2 pertain solely to the circumstances
surrounding his arrest and subsequent presentation before the
jurisdictional Courts in Mumbai. It is submitted that
Respondent No.2 is presently before the learned trial Court
and is facing prosecution for offences of a grave and serious
nature. The location and manner of his arrest are wholly
extraneous to the core issues under adjudication and bear no
material relevance to the determination of guilt or innocence in
the present proceedings. It is further submitted that
admissibility and production of evidence must be governed by
the principle of relevancy, as enshrined under the Indian
Evidence Act. In the instant case, the controversy does not
pertain to the place or mode of arrest, but rather to the
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substantive charges framed against Respondent No.2.
Accordingly, the documents sought are neither necessary nor
desirable for the adjudication of the present trial and ought not
to be directed for production under Section 91 CrPC.
11. The learned Solicitor General further submitted that even
assuming, without admitting, the veracity of the contentions
advanced by Respondent No.2, such assertions would not
vitiate the legality or legitimacy of the ongoing trial
proceedings. It is contended that, at best, the allegations raised
by Respondent No.2 amount to an irregularity in the process of
arrest and detention, and the subsequent production of the
accused before the competent judicial forum to face trial for
grave offences involving terrorism. Such alleged pre-trial
procedural irregularities, it is submitted, are inconsequential to
the adjudication of guilt and do not impinge upon the merits of
the prosecution's case. The learned Solicitor General further
submitted that even if the documents in question were to
establish some procedural lapse in the manner of arrest, the
same would not affect the findings of the trial Court, nor
would it result in a miscarriage of justice. The jurisprudence
governing non-disclosure of documents, it is submitted, is
anchored in the principle of balancing competing interests, the
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public interest in the effective prosecution of serious offences
and the private interest of the accused in accessing procedural
safeguards.
12. The learned Solicitor General relied on (i) Smt
Parmeshwari Devi vs The State and Anr., (1977) 1 SCC 169;
(ii) Sethuraman vs Rajamanickam, (2009) 5 SCC 153; (iii) State
of A.P. vs Mohd. Hussain, (2014) 1 SCC 258; (iv) Om Prakash
Sharma vs CBI, Delhi, (2000) 5 SCC 679; (v) Sukhmohinder
Singh Sandhu vs CBI, 2010 SCC OnLine Del 2481; (vi) Suresh
Kalmadi vs CBI, 2015 SCC OnLine Del 9639; (vii) Alagesan &
Ors vs State, 2008 SCC OnLine Mad 183; (viii) State of Orissa
vs Debendra Nath Padhi, (2005) 1 SCC 568; (ix) Bashir
Hussain Peshimam vs Gulam Mohomed Ismail Peshimam &
Ors, AIR 1966 Bom 253; (x) Hari Charan vs The State, AIR
1955 P&H 17; (xi) HH The Nijam of Hyderabad vs AM Jacob,
(1891) ILR 19 CAL 52; (xii) Re P (Placement Orders. Parental
Consent, (2008) EWCA CIV 535; (xiii) Pradeep S Wodeyar vs
State of Karnataka, (2021) 19 SCC 62; (xiv) State of Punjab vs
Balbir Singh, (1994) 3 SCC 299; (xv) Santa Singh vs State of
Punjab, (1976) 4 SCC 190; (xvi) Hemant Vyankatesh Agwan vs
The State of Maharashtra, 1989 SCC OnLine Bom 279; (xvii)
Hanif, Banomiya Shikalkar vs The State of Maharashtra, 1980
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SCC OnLine Bom 287; (xviii) Mukund Lal vs UOI & Anr,
1989 Supp (1) SCC 622; (xix) Ex-Armymen's Protection
Services Pvt Ltd vs Union of India & Ors, (2014) 5 SCC 409;
(xx) Raj Kumar Singh vs State of Bihar & Ors, (1986) 4 SCC
407; (xxi) Union of India vs Rajasthan High Court & Ors,
(2017) 2 SCC 599, in support of his contentions.
13. Mr BB Kulkarni, learned Additional Public Prosecutor
representing Respondent No.1/ State, endorsed the arguments
advanced by the learned Solicitor General and submitted that
the impugned order is legally unsustainable, being vitiated by
patent infirmities warranting its reversal. He contended that the
applications preferred under Section 91 of the CrPC have been
filed not in furtherance of genuine discovery or production of
documents, but rather as a dilatory tactic aimed at stalling the
progress of the trial. It was argued that such procedural
manoeuvres are devoid of bona fides and constitute an abuse of
the process of law.
14. On the other hand, Dr Yug Chaudhary, learned Counsel
appearing on behalf of Respondent No.2, referring to the
provisions of the NIA Act, submitted that Respondent No.2 is,
inter alia, being tried for offences punishable under Sections
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121, 121A, and 122 of the IPC, as well as under the provisions
of the Unlawful Activities (Prevention) Act, 1967. These
offences are expressly included in the Schedule appended to the
NIA Act and are, therefore, triable exclusively by the Special
Courts constituted under Section 11 thereof.
15. It is further contended that Section 21 of the NIA Act
unequivocally stipulates that any appeal against a judgment,
sentence, or order passed by a Special Court shall lie only
before the High Court and shall be heard by a Division Bench
thereof. In view of the same, the learned Counsel submitted
that even though the instant proceedings are styled as writ
petitions rather than statutory appeals under Section 21, they
emanate from an order passed by the Special Court in a case
involving offences under the UAPA. Consequently, such
proceedings ought, in principle and in conformity with the
legislative scheme, to be heard by a Division Bench and not by a
Single Judge of this Court.
16. Drawing attention to the impugned order passed by the
Special Court, the learned Counsel contended that any
challenge arising from a trial concerning offences under the
UAPA must necessarily be heard by a Division Bench in keeping
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with the statutory framework. It was further submitted that if
the accused themselves had preferred an appeal, the same
would have lain before a Division Bench. Therefore, it would
be manifestly incongruous and legally untenable that a petition
impugning the same order, albeit preferred by third parties
lacking locus to appeal, be adjudicated by a Single Judge.
17. The learned Counsel further submitted that in the
aftermath of the unfortunate terrorist attacks in Mumbai in
November 2008, twelve separate First Information Reports
(FIRs) were registered across various police stations in Mumbai
between November and December 2008. The said
investigations were subsequently consolidated and transferred
to the DCB CID, Mumbai, and renumbered as CR No. 182 of
2008. It is submitted that on 27 November 2008, accused
Mohd. Ajmal Mohd. Amir Kasab was apprehended, and on 6
February 2009, Faheem Ansari and Sabauddin Ahmed were
taken into custody by the Mumbai Police from Rampur, Uttar
Pradesh, where they were facing trial in another criminal
matter. By a judgment and order dated 6 May 2010, accused
Kasab was convicted and sentenced to death, whereas accused
Faheem Ansari and Sabauddin Ahmed were acquitted of all
charges. The conviction and sentence of Kasab were affirmed
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by this Court on 21 February 2011. Subsequently, on 21
November 2011, the Special Cell of the Delhi Police registered
CR No.54 of 2011, concerning an alleged conspiracy to
commit terrorist acts in Delhi. On 21 June 2012, it was alleged
by the prosecution that PW 65, ACP Manishi Chandra, acting
on secret information, arrested Respondent No. 2 outside IGI
Airport, New Delhi, purportedly recovering from him a
Pakistani passport and two Pakistani identity cards.
18. The learned Counsel categorically denied this version of
events, asserting that Respondent No.2 had been residing in
Saudi Arabia, where he was detained by local authorities and
subsequently handed over to Indian officials pursuant to a prior
arrangement between the Governments of India and Saudi
Arabia. It is submitted that officers of the Delhi Police had
travelled to Saudi Arabia with an emergency travel document
dated 9 June 2012 bearing No. Y-0094591, issued in the name
of Respondent No.2. It is further contended that on 20 June
2012, Respondent No.2 was escorted from Dammam Airport,
Saudi Arabia, and brought to New Delhi by Jet Airways Flight
No.9W 0563, which arrived in the early hours of 21 June
2012. This account, it is submitted, is corroborated by multiple
newspaper reports published contemporaneously in June 2012,
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indicating that Respondent No.2 had been deported from Saudi
Arabia at the instance of the Government of India and handed
over to the Delhi Police upon arrival.
19. Accordingly, it is contended that the prosecution's claim
of arrest outside IGI Airport is demonstrably false. Respondent
No.2 was thereafter shown to have been arrested in the present
case on 21 July 2012. By a letter dated 25 July 2012, PW 55,
Assistant Passport Officer, confirmed that a travel document
bearing No.Y-0094591, dated 9 June 2012, had been issued to
Respondent No.2, valid until 8 August 2012. This official
correspondence, which forms part of the charge sheet,
substantiates Respondent No.2's defence.
20. It is further submitted that despite such evidence, PW 65,
in his statement recorded on 27 July 2012, falsely claimed to
have arrested Respondent No.2 at IGI Airport and recovered
Pakistani documents from his possession. Subsequently, on 12
August 2012, a purported confessional statement under Section
164 of CrPC was recorded, wherein Respondent No.2 allegedly
admitted to obtaining a forged Pakistani passport. Respondent
No.2 has since retracted this statement, asserting that it was
obtained under coercion and fabricated. The charge sheet in
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CR No.182 of 2008 was filed on 17 October 2012, and on 4
May 2013, Respondent No.2 formally retracted the alleged
confession, reaffirming that he had been detained by Saudi
authorities since January 2011 and subsequently handed over to
Indian officials at Dammam in June 2012.
21. It is further submitted that, in order to substantiate his
defence, Respondent No.2 filed five applications (Exhibits 284
to 288) under Section 91 of the CrPC on 27 November 2017,
seeking the production of material documents essential for the
just determination of the case. These included: (i) the passports
of the officers of the Delhi Police who had travelled to Saudi
Arabia; (ii) the passenger manifest of Jet Airways Flight No.
9W 0563 from Dammam to New Delhi dated 20 June 2012;
(iii) the emergency travel document issued to Respondent No. 2
by the Ministry of External Affairs; and (iv) the relevant
immigration records.
22. It is asserted that these documents were indispensable to
demonstrate that Respondent No. 2 had been officially
repatriated from Saudi Arabia under lawful custody, rather than
apprehended at IGI Airport as falsely alleged. Despite specific
directions from the Sessions Court, the prosecution delayed its
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reply for more than two months, compelling Respondent No.2
to file another application (Exhibit 431) on 31 January 2018.
The prosecution eventually filed its reply on 5 February 2018,
disclaiming possession of the documents but raising no
objection to their production.
23. The learned Counsel further drew attention to the
testimony of PW 55, who confirmed the issuance of the travel
document (Exhibit 477), thereby corroborating Respondent
No.2's version. PW 62 and PW 68 similarly admitted during
cross-examination that Respondent No.2 had been brought
from Saudi Arabia to Delhi by Indian police authorities. PW 65,
however, reiterated his false claim of arrest at IGI Airport when
re-examined on 9 March 2018. In light of the contradictions in
the prosecution's evidence, the Sessions Court, by the
impugned order, allowed the applications under Section 91
CrPC and directed the production of the relevant documents,
holding them necessary for a fair and just adjudication. It is
further submitted that upon the receipt of records from Jet
Airways on 2 April 2018, it was conclusively established that
Respondent No.2 had indeed travelled to India on the said
flight, occupying Seat No.33D, accompanied by officers of the
Delhi Police seated in Seats Nos.33A, 33B, and 33C. These
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documents, it is argued, irrefutably falsify the prosecution's
theory and expose the mendacity of PW 65's version.
24. The learned Counsel further submitted that the present
writ petitions were originally premised on the assertion that the
Ministry of Civil Aviation and the Ministry of External Affairs
had claimed privilege over certain documents that were
directed to be produced by the impugned order. However,
during the course of the present proceedings, the learned
Solicitor General made no submissions in relation to the alleged
claim of privilege, nor has any affidavit invoking privilege been
filed on behalf of the Petitioners before this Court. Although
the petitions had initially indicated that certain documents
would be submitted in a sealed cover, no such sealed cover has,
in fact, been tendered. When the issue of privilege was raised
by Respondent No.2, the learned Solicitor General expressly
stated that the Petitioners were not pressing the claim of
privilege. Accordingly, it is submitted that the issue of privilege
does not survive for adjudication, and no arguments are being
advanced on that aspect at this stage.
25. Additionally, the learned Counsel relied on (i) Kamal
Ahmed Mohammed Vakil & Ors vs State of Mahrashtra, 2013
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CrLJ 858; (ii) Shoma Kanti Sen vs State of Maharashtra & Anr,
(2024) 6 SCC 591; (iii) Sevantilal Karsondas Modi vs The State
of Maharashtra & Anr, (1979) 2 SCC 58; (iv) Areeb Ejaz
Majeed vs National Investigation Agency & Anr, Cri Appeal
No.173 of 2019 Bom HC dated 27 March 2019; (v) Aghnoo
Nagesia vs State of Bihar, (1966) 1 SCR 134; (vi) SP Gupta vs
Union of India & Anr, 1981 (Supp) SCC 87; (vii) Sudha
Bhardwaj vs National Investigation Agency & Anr, Cri BA
No.2024 of 2021 Bom HC, dated 11 June 2021; (viii) Jaffar
Sathiq vs State, 2021 SCC OnLine Mad 2593; (ix) Surendra P
Gadling vs State of Maharashtra, 2021 SCC OnLine Bom
1726; (x) Bikramjit Singh vs State of Punjab, (2020) 10 SCC
616, in support of his contentions.
26. This Court has given anxious consideration to the rival
submissions canvassed across the Bar and perused the material
placed on record, including the affidavits-in-reply and the
written notes of arguments.
27. Since Respondent No.2 has raised a preliminary objection
challenging the jurisdiction of this Court to entertain the
present writ petitions, it is apposite to reproduce Section 21 of
the NIA Act, which reads as follows:
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"21. Appeals.--
(1) Notwithstanding anything contained in
the Code, an appeal shall lie from any
judgment, sentence or order, not being an
interlocutory order, of a Special Court to the
High Court both on facts and on law.
(2) Every appeal under sub-section (1) shall
be heard by a bench of two Judges of the
High Court and shall, as far as possible, be
disposed of within a period of three months
from the date of admission of the appeal.
(3) Except as aforesaid, no appeal or revision
shall lie to any court from any judgment,
sentence or order including an interlocutory
order of a Special Court.
(4) Notwithstanding anything contained in
sub-section (3) of section 378 of the Code,
an appeal shall lie to the High Court against
an order of the Special Court granting or
refusing bail.
(5) Every appeal under this section shall be
preferred within a period of thirty days from
the date of the judgment, sentence or order
appealed from:
Provided that the High Court may
entertain an appeal after the expiry of the
said period of thirty days if it is satisfied that
the appellant had sufficient cause for not
preferring the appeal within the period of
thirty days:
Provided further that no appeal shall be
entertained after the expiry of period of
ninety days."
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28. A plain, literal and purposive interpretation of Section 21
of the NIA Act makes it clear that under Section 21(1) of the
NIA Act, interlocutory orders of a Special Court are not
appealable to the High Court. However, Sub-Section (4) of
Section 21 carves out a specific exception for orders granting or
refusing bail, recognising their impact on the accused's liberty.
Thus, while all other interlocutory orders are barred from
appeal to ensure expeditious trial under Section 19, bail-related
orders alone remain appealable.
29. In Mohd. Hussain (supra), the Hon'ble Supreme Court
held that, as per the scheme of Section 21 of the NIA Act, no
appeal is provided against any interlocutory orders passed by
the Special Court, except for orders either granting or refusing
bail as per Section 21(4). The relevant paragraph reads as
follows:
"17. There is no difficulty in accepting the
submission on behalf of the appellant that an
order granting or refusing bail is an interlocutory
order. The point however to be noted is that as
provided under Section 21(4) of the NIA Act, the
appeal against such an order lies to the High
Court only, and to no other court as laid down in
Section 21(3). Thus it is only the interlocutory
orders granting or refusing bail which are made
appealable, and no other interlocutory orders,
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which is made clear in Section 21(1), which lays
down that an appeal shall lie to the High Court
from any judgment, sentence or order, not being
an interlocutory order of a Special Court. Thus
other interlocutory orders are not appealable at
all. This is because as provided under Section 19
of the Act, the trial is to proceed on day-to-day
basis. It is to be conducted expeditiously.
Therefore, no appeal is provided against any of
the interlocutory orders passed by the Special
Court. The only exception to this provision is
that orders either granting or refusing bail are
made appealable under Section 21(4). This is
because those orders are concerning the liberty of
the accused, and therefore although other
interlocutory orders are not appealable, an appeal
is provided against the order granting or refusing
the bail. Section 21(4), thus carves out an
exception to the exclusion of interlocutory
orders, which are not appealable under Section
21(1). The order granting or refusing the bail is
therefore very much an order against which an
appeal is permitted under Section 21(1) of the
Act."
30. Furthermore, in Naresh Ramniklal Gaur vs Union of
India, 2021 SCC OnLine Bom 5031, this Court observed as
follows:
"12. In so far as the maintainability of the Writ
Petition is concerned, it may be stated that, the
order impugned, though said to be "relatable" to
bail, as argued by Mr. Singh, however, in terms of
provisions of sub-section (4) of Section 21, it is
not an order of a Special Court, either 'granting'
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or 'refusing' bail. The sub-section (4) envisage
two kind of orders; one 'granting' and another
'refusing' bail. It does not specify third kind of
order i.e. 'orders concerning or relating to bail"
(emphasis supplied). Herein, the impugned order,
not being order granting or refusing the bail,
obviously it would not fall under sub-section (4)
of Section 21 of the N.I.A. Act. That for these
reasons, contention of the respondents that, Writ
Petition was not maintainable, is rejected."
31. In Sethuraman (supra), the Hon'ble Supreme Court was
seized of the question as to whether an order passed under
Section 91 of the CrPC directing the production of documents
and an order passed on an application under Section 311 of the
CrPC would qualify as interlocutory in nature. The Apex Court
categorically held that such orders are interlocutory. This legal
position is evident upon reading paragraph 5 of the judgment,
which, when read in its entirety, leaves no room for doubt
regarding the interlocutory character of an order passed under
Section 91 CrPC. Paragraph 5 reads as follows:
"5. Secondly, what was not realised was that the
orders passed by the trial court refusing to call
the documents and rejecting the application
under Section 311 CrPC, were interlocutory
orders and as such, the revision against those
orders was clearly barred under Section 397(2)
CrPC. The trial court, in its common order, had
clearly mentioned that the cheque was admittedly
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signed by the respondent-accused and the only
defence that was raised, was that his signed
cheques were lost and that the appellant
complainant had falsely used one such cheque.
The trial court also recorded a finding that the
documents were not necessary. This order did
not, in any manner, decide anything finally.
Therefore, both the orders i.e. one on the
application under Section 91 CrPC for
production of documents and other on the
application under Section 311 CrPC for recalling
the witness, were the orders of interlocutory
nature, in which case, under Section 397(2),
revision was clearly not maintainable. Under such
circumstances, the learned Judge could not have
interfered in his revisional jurisdiction. The
impugned judgment is clearly incorrect in law and
would have to be set aside. It is accordingly set
aside. The appeals are allowed."
32. From the above, it is evident that the impugned order
does not fall within the ambit of appellate jurisdiction
contemplated under Section 21 of the NIA Act. In the absence
of a statutory remedy of appeal, the Petitioners are justified in
invoking the supervisory jurisdiction of this Court under Article
227 of the Constitution of India. Accordingly, the objection
raised on behalf of Respondent No.2, seeking a reference of the
matters to a Division Bench, is devoid of merit and liable to be
rejected. The said objection is predicated on a misconceived
interpretation of the scope of appellate jurisdiction under the
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NIA Act and fails to account for the procedural posture of the
Petitioners. Additionally, the Petitioners, not being arraigned as
parties to the pending trial, do not possess the requisite locus
standi to prefer an appeal under Section 21, notwithstanding
the fact that the impugned order adversely affects their legal
interests. The statutory framework does not envisage an
appellate remedy in such circumstances. Moreover, the
impugned order has been passed without affording the
Petitioners an opportunity of hearing, thereby occasioning a
grave infraction of the principles of natural justice. The denial
of audi alteram partem vitiates the decision-making process and
renders the impugned order susceptible to judicial scrutiny
under the supervisory jurisdiction of this Court.
33. Adverting to the merits of the matter, the following
chronology of events is of material relevance and bears directly
upon the issues arising for adjudication in the present
proceedings. The said sequence has also been delineated in the
reply affidavits filed on behalf of Respondent No.2/ accused,
who is facing trial in connection with the offences emanating
from the heinous and unprecedented terrorist attacks
perpetrated in Mumbai on 26 November 2008, which resulted
in extensive loss of lives and posed a grave threat to national
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security. During the period of November-December 2008,
twelve distinct FIRs came to be registered at various police
stations across Mumbai. The investigations pertaining thereto
were subsequently consolidated and entrusted to the DCB CID,
Mumbai, and were renumbered as CR No.182 of 2008. On 27
November 2008, the principal accused, Mohd Ajmal Mohd
Amir Kasab, was apprehended. Thereafter, on 22 November
2011, CR No.54 of 2011 was registered by the Special Cell of
Delhi Police in relation to an alleged conspiracy to commit
terrorist acts in Delhi. According to the prosecution, on 21
June 2012, PW 65 ACP Manishi Chandra, acting upon specific
intelligence inputs, laid a trap and apprehended Respondent
No.2 in the vicinity of the IGI Airport, New Delhi, in
connection with the aforementioned CR No.54 of 2011. It is
further alleged that a Pakistani passport and two Pakistani
national identity cards were recovered from his possession.
Respondent No.2, however, disputes the prosecution's version
and asserts that he was, at the relevant time, residing in Saudi
Arabia, where he was taken into custody and detained. It is his
case that, pursuant to a prior arrangement between the
authorities of the Government of India and Saudi Arabia,
officials of the Delhi Police, who are arrayed as Petitioners
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herein, arrived in Saudi Arabia with an emergency travel
document dated 9 June 2012 bearing No.Y-0094591, issued in
the name of Respondent No.2, to facilitate his deportation to
India. In furtherance thereof, on 20 June 2012, Respondent
No.2 was escorted to Dammam Airport and was thereafter
transported to New Delhi aboard Jet Airways flight
No.9W0563, which arrived in the early hours of 21 June 2012.
Subsequently, on 21 July 2012, Respondent No.2 was formally
arrested and remanded to custody in connection with the
present case.
34. From this sequence of events, it is clear that so far as the
present offence, viz., the offence pertaining to the terror attack
which took place on 26 November 2008, is concerned,
Respondent No.2 was given over in custody to Mumbai Police
by Delhi Police. There is no dispute about the fact that
Respondent No.2 was handed over by Delhi Police to the
investigating officer of the present offence.
35. The allegations and assertions made by Respondent No.2
before the trial Court pertain exclusively to CR No.54 of 2011,
which is being investigated and prosecuted by the Special Cell,
Delhi Police. This CR concerns an alleged conspiracy involving
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the proscribed terrorist organisations Jaish-e-Mohammad and
Lashkar-e-Taiba in collusion with Respondent No.2, as
categorically stated by the learned Solicitor General of India
appearing on behalf of the Petitioners. This fact is also an
admitted fact emerging from the reply filed by Respondent
No.2. It is, thus, clear that the assertions made by Respondent
No.2 about his alleged wrongful confinement on 21 June 2012
have nothing to do with the trial of the present offence which is
being conducted in Sessions Case No.198 of 2013. Once it is
admitted that the arrest of Respondent No.2 is lawful, so far as
the present sessions trial is concerned, the trial Court ought not
to have invested time in passing an absolutely unsustainable
order which is nothing but a fishing and roving inquiry at the
behest of the accused/ Respondent No.2.
36. An additional dimension arises in the context of the
present proceedings. Upon arrest of an individual, it is the
statutory duty of the arresting authority to ensure production
of the accused before the jurisdictional Magistrate within
twenty-four hours of arrest, as mandated under Section 57 of
the CrPC. In adherence to this mandatory requirement, the
Special Cell of Delhi Police, upon effecting the arrest of
Respondent No.2, duly produced him before the Chief
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Metropolitan Magistrate, Tis Hazari Courts, Delhi, in
connection with CR No.54 of 2011.
37. It is pertinent to note that Respondent No.2 remained
entirely silent with respect to the assertions now relied upon for
the first time, which culminated in the passing of the impugned
order. There was not even a semblance of such averments in
any prior proceedings. The learned Solicitor General has placed
on record the proceedings dated 21 June 2012, and the order
of the competent Magistrate of the same date, which
unequivocally demonstrates that Respondent No.2, despite
being produced before the said Magistrate within twenty-four
hours of arrest, did not make any contemporaneous statement
or assertion in relation to the present claims.
38. The investigating agency, in connection with CR No.54 of
2011, once again produced Respondent No.2 before the Court
of the Chief Metropolitan Magistrate, Tis Hazari Court, Delhi,
on 5 July 2012, seeking extension of his police custody for the
purpose of investigation. Pursuant to the said production, the
learned Magistrate, being the competent authority, was pleased
to grant fifteen days' further police custody remand vide order
dated 5 July 2012. A certified copy of the aforesaid remand
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order, as placed on record by the learned Solicitor General of
India, and the existence and contents of which are not disputed
by the learned Counsel for Respondent No.2, clearly
demonstrate that at the time of the said proceedings,
Respondent No.2 did not raise any objection or grievance on
the grounds now subsequently urged before this Court.
39. It is further evident from the record that even though the
Mumbai Police had also sought the custody of Respondent
No.2 in connection with the present offence, no such issue or
contention, as now being advanced, was ever raised by
Respondent No.2 at that relevant stage. Respondent No.2 was
thereafter duly transferred into the lawful custody of the Anti-
Terrorist Squad (ATS), Mumbai. The copy of the said order is
also on record and its veracity is not disputed by the learned
Counsel for Respondent No.2. Even when Respondent No.2
was produced before the competent Court in Mumbai, he did
not assert that he had been brought from any location other
than the place of arrest, namely, near Delhi Airport.
40. Based on the facts outlined above, the following
conclusions are irrefutable: (i) In the present matter, the
Mumbai Police secured custody of Respondent No.2 pursuant
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to an order passed by the competent Court at Delhi on 20 July
2012; (ii) At no stage during his production before the Chief
Metropolitan Magistrate, whether immediately upon his arrest
on 21 June 2012 or during the subsequent remand proceedings,
did Respondent No.2 ever contend that he had been brought
from a different location or that his arrest had not occurred
outside the Delhi Airport; (iii) Even when produced before the
Magistrate in Mumbai, no such statements or claims were
advanced; (iv) Respondent No.2 is unquestionably an accused
in the criminal proceedings and is alleged to have actively
conspired in the commission of an offence of such grave nature
that it has profoundly impacted the sovereignty and integrity of
the nation.
41. This consideration may carry limited weight before this
Court, as Respondent No.2 is liable to be dealt with strictly in
accordance with the law. However, once the accused has been
placed in judicial custody and is facing trial with full
opportunity to defend himself, the place of his arrest,
particularly when raised in the midst of the trial for the first
time, loses any significant relevance to the proceedings. The
location at which Respondent No.2 was apprehended is wholly
immaterial to the exercise of his right to defend himself in the
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present proceedings. The learned trial Court has completely
misdirected itself by invoking Section 91 of the CrPC to compel
the production of documents from third parties in this context.
Section 91 CrPC does not confer upon an accused, nor
empower the Court, to initiate a speculative or exploratory
inquiry into the place of arrest, particularly when such inquiry
bears no rational nexus to the adjudication of the matter. The
statutory requirement under Section 91 is that the document or
thing sought must be "necessary or desirable for the purpose of
any inquiry, trial or other proceedings under the Code", which
is conspicuously absent in the present factual matrix.
42. In the present matters, this Court has not discussed in too
much detail its reasoning for the above conclusion, mainly
because the Court is satisfied that the information sought by
Respondent No.2 and directed to be produced pursuant to the
impugned order is neither necessary nor desirable for the
resolution of the issues in this case. The said request appears to
be a belated and tactical manoeuvre by an accused/Respondent
No.2 facing serious criminal charges, lacking any substantive
justification.
43. This Court, based on the aforesaid, finds it difficult to
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concur with or uphold the reasoning adopted by the learned
trial Court in passing the impugned direction under Section 91
CrPC, requiring the Petitioners to produce the documents.
44. Accordingly, the present writ petitions stand allowed, and
the impugned order passed below Exhibit Nos.284 to 288 in
Sessions Case No.198 of 2013, by the Additional Sessions
Judge, Mumbai, is hereby quashed and set aside.
45. Before concluding, it must be noted that the trial has
remained stayed since 2018 due to the impugned order. In
serious offences, a timely trial is essential to ensure justice and
accountability.
[R. N. Laddha, J.]
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