Rehmana Yusuf Farooqi vs State
2011 Latest Caselaw 62 Del

*                                                                 IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                                                                                            Decided on: 06.01.2011

+                                                                 Criminal M.A. 12733/2007 (U/S 482 Cr.P.C.) in Crl. A. 892/2005

                                                                  REHMANA YUSUF FAROOQI                                      ..... Appellant

                                                                                 Through : Shri Vishal Sehjpal, Advocate.

                                                                                                versus

                                                                  STATE                                                      ..... Respondent

Through : Shri Lovekesh Sawhney, APP for the State

CORAM:

                                                           MR. JUSTICE S. RAVINDRA BHAT
                                                           MR. JUSTICE G.P. MITTAL

1.                                                         Whether the Reporters of local papers             Yes.
                                                           may be allowed to see the judgment?

2.                                                         To be referred to Reporter or not?                Yes.

3.                                                         Whether the judgment should be                    Yes.
                                                           reported in the Digest?

MR. JUSTICE S.RAVINDRA BHAT

%

1. This order will dispose of appellant's request to release/de-freeze her saving Bank Account No.5817 with the State Bank of India, Gazipur Branch.

2. Briefly the facts are that the applicant was along with other co-accused including her husband, charged with committing various offences including Sections 302, 307, 120B, 34 of the Indian Penal Code besides other offences under the Arms Act etc. The Trial Court had convicted the applicant. Her appeal to this Court was, however, allowed by a common judgment and order of Division Bench in State v. Mohd. Arif @ Ashfaq @ Abu Hamad, dated 13.09.2007. In short the charge against the applicant was culpability and also conspiracy, was in regard to allegation

CS(O S) 2411/2010, I.A. N os. 160 05/20 10 & 16006 /2010

Crl.M.A.12733/2007 in Crl.A. No. 892/2005 Page 1 of her permitting the bank account in question to be used by other co-accused. This Court by its order concluded that there was insufficient evidence to sustain the appellant's guilt. The findings of this Court are to the following effect :

"95. The only evidence against Rehmana Yusuf Farooqui is the deposit of Rs. 2.80 lacs in her bank account with State Bank of India, Ghazipur, which according to the prosecution was deposited by accused Mohd. Arif @ Ashfaq before even marrying her and exchange of telephone calls between the two before the solemnization of their marriage on 8.12.2000. Appellant/accused Rehmana Yusuf Farooqui has admitted that that much amount was deposited in her bank account but she has claimed that it was her own money. She has also admitted that Mohd. Arif @ Ashfaq had come forward to marry her in response to the matrimonial advertisement given by her in newspaper and also that before their marriage during the courtship period also Mohd. Arif @ Ashfaq had been talking to her on phone. She had examined her mother Qamar Farooqui as a defence witness and she had deposed that Mohd. Arif had expressed his desire to marry Rehmana after reading the matrimonial advertisement in the newspaper and that she had agreed for the marriage between the two since he had not raised any demands. She had further deposed that she had saved some money for the marriage of her daughter and her relatives had also contributed for her marriage and that money was put in bank by Rehmana in instalments. The prosecution is alleging that the amount of Rs. 2.80 lacs was deposited in Rehmana's account in four instalments. In cross-examination by the public prosecutor DW-1 denied the suggestion that Mohd. Arif had told her that he was involved in terrorist activities and wanted to set up a base in Delhi. She was asked if Mohd. Arif had paid any money to her or her daughter before the Nikah to which she replied that he had not paid any money to them before the marriage. She, however, admitted the suggestion that in the account of Rehmana with State Bank of India money was deposited in four instalments. The case of the prosecution is that the money so deposited on those four occasions was deposited by Mohd. Arif @ Ashfaq before his marriage with Rehmana. However, no suggestion was put to DW-1 that that money was paid to her daughter by accused Mohd. Arif @ Ashfaq and also that it was paid as an incentive to her to marry him so that he could have shelter in their house after getting married to Rehmana. Therefore, it cannot be accepted that prosecution has succeeded in establishing its case that Mohd. Arif @ Ashfaq had given lacs of rupees to Rehmana Yusuf Farooqui and she had accepted the same knowing that he was a terrorist. In fact, a suggestion was put to DW- 1 that her daughter and son had enquired about Mohd. Arif and they had come to know that he was a good boy. DW-1 accepted that suggestion to be correct. This suggestion put to DW-1 by the public prosecutor falsifies its case that Rehmana had got married to Mohd.

Arif @ Ashfaq knowing that he was a terrorist. And just because one ration card Ex. PW-164/A and one driving licence in the name of Mohd. Arif @ CS(O S) 2411/2010, I.A. N os. 160 05/20 10 & 16006 /2010

Crl.M.A.12733/2007 in Crl.A. No. 892/2005 Page 2 Ashfaq had been recovered from the flat where Mohd. Arif and Rehmana were living after their marriage it cannot be said that she was aware that her husband had got a forged ration card or that he had obtained driving licence giving an incorrect residential address and in any event the recovery of forged ration card and the driving licence having the residential address where Mohd. Arif never stayed is not sufficient to draw an inference that Rehmana Yusuf Farooqui really knew as to what her husband was upto and what were his designs and intention behind marrying her. In this regard we may make a useful reference to the decision of the Hon'ble Supreme Court in Parliament Attack case which is reported as AIR 2005 SC 3820. In that case also two of the accused were husband and wife. After the attack on the Parliament house there was a telephonic conversation between the husband and wife and that call had been intercepted by the police. On the basis of that conversation which was taped the Hon'ble Supreme Court had come to the conclusion that from that conversation it appeared that the accused wife was scared and also that an inference could be drawn that her husband and another co-accused had done something wrong which had attracted police surveillance but from that circumstance alone no inference could be drawn that the wife was having knowledge of the plan of her husband to attack the Parliament before the incident. The accused wife had been convicted under Section 123, IPC by the trial Court for not informing the police about the plan of her husband and its associates to attack the Parliament despite having knowledge about that plan. However, in appeal filed by her a Division Bench of this Court had set aside her conviction and acquitted her of the charge under Section 123, IPC and the Hon'ble Supreme Court affirmed her acquittal when the State filed an appeal there. In the present case, there is no sufficient evidence adduced by the prosecution from which it could be concluded that she was a party to any conspiracy to launch an attack inside the Lal Quila or that she had even some idea about the intentions of her husband to commit that kind of a crime. We are, therefore, of the view that the prosecution could not be said to have established that accused Rehmana Yusuf Farooqui had married accused Mohd. Arif @ Ashfaq in order to provide a shelter to him in Delhi so that he could go ahead with his terrorist activities without being suspected because of his living with Rehmana Yusuf Farooqui, her mother, her sister and brother in their house in Gazipur from where Mohd. Arif was arrested. So, she was not rightly convicted by the learned trial Court and there being no evidence whatsoever adduced by the prosecution from which it could be inferred that she was either a party to the conspiracy to attack the army camp inside Lal Quila or that she had some knowledge about that plan she cannot be convicted for the offence under Section 120B, IPC for which the learned trial Court has acquitted her. The appeal filed by the State seeking her conviction under Section 120B, IPC is, therefore, liable to be dismissed and the appeal filed by Rehmana Yusuf Farooqui deserves to be allowed."

CS(O S) 2411/2010, I.A. N os. 160 05/20 10 & 16006 /2010

Crl.M.A.12733/2007 in Crl.A. No. 892/2005 Page 3

3. The appellant argues that the acquittal was not questioned and had become final. She claims that the account has been lying freezed since her arrest in spite of acquittal. The appropriate orders are therefore sought for.

4. On various dates of hearing this Court was informed that the appeals of the co-accused, directed against their conviction was pending in the Supreme Court apart from that submission, it was also urged that certain proceedings under the Foreign Exchange Management Act, 1999 (In short 'FEMA') had been initiated. In these circumstances, the Court had been adjourning the application time and again. The order sheets in respect of this application would reveal that on 07.01.2010, 19.07.2010, 12.08.2010, 31.08.2010, 20.10.2010 and 24.11.2010, repeated requests for adjournment were made on behalf of the non-applicant /State and were granted.

5. Today also counsel for the respondent State sought for further accommodation and contended that proceedings under FEMA have been initiated against the co-accused Mohd Arif and the same are pending before the appropriate authorities. It is also pointed out that the concerned authorities had by a letter appointed a counsel to approach this Court for suitable orders, as alleged confiscation proceedings of the deposits in the saving bank account, in question, had been initiated.

6. Learned counsel for the State submitted that since the co-accused's conviction and death penalty was confirmed, it would not be prudent for this Court to especially having regard to the confiscation proceedings drawn against the said co-accused, make any positive orders enabling the applicant to operate the account. It was therefore, submitted that the application ought to be rejected.

7. This Court has carefully considered the parties submission. The applicant's conviction by the Trial Court was concededly set aside by this Court, in its judgment and order dated 13.09.2007. The State concededly had not appealed against the applicant's acquittal. Therefore, the findings with regard to the same, rendered by the Court in para 95 of the judgment, have become final. Furthermore, no material has been placed on record to show that the applicant has been issued with any notice or has been arrayed as party in any proceedings under FEMA. No copies of notice, replies thereto or the grounds for confiscation of proceeds lying in the account have not been shown to the Court. In these circumstances, having regard to the finality, which attaches to the Division Bench order and also having considered the materials placed on record in the form of additional affidavit of the applicant filed pursuant to the Court's direction on CS(O S) 2411/2010, I.A. N os. 160 05/20 10 & 16006 /2010

Crl.M.A.12733/2007 in Crl.A. No. 892/2005 Page 4 12.01.2009 and 16.07.2009, this Court is of the view that the ends of justice would be sub-served if the applicant is permitted to operate the account and embargo placed upon the bank, which has caused the impediment all this while be revoked.

8. In view of the above observations, Crl.M.A.12733/2007 has to succeed. The applicant is at liberty to operate the account in question, i.e. Saving Bank Account No. 5817.

9. Criminal M.A.12733/2007 is therefore allowed in the above terms.

S. RAVINDRA BHAT (JUDGE)

G.P. MITTAL (JUDGE) JANUARY 06 , 2011

CS(O S) 2411/2010, I.A. N os. 160 05/20 10 & 16006 /2010

Crl.M.A.12733/2007 in Crl.A. No. 892/2005 Page 5