Karnataka High Court
Dr Sabeel Ahmed @ Motu Doctor vs National Investigating Agency on 15 November, 2024
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WP No.16865/2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
WRIT PETITION NO.16865/2024 (GM-RES)
BETWEEN:
DR SABEEL AHMED @ MOTU DOCTOR
S/O MAQBOOL AHMED
AGED ABOUT 39 YEARS
R/AT NO. 1981
26TH CROSS
BANASHANKARI
2ND STAGE
BANGALORE 560 070 ...PETITIONER
(BY SRI. MOHAMMED TAHIR., ADVOCATE)
AND:
NATIONAL INVESTIGATING AGENCY
MINISTRY OF HOME AFFAIRS
Digitally GOVERNMENT OF INDIA
signed by A K
CHANDRIKA HYDERABAD BRANCH
Location: REP BY THEIR STANDING COUNSEL
High Court of MR. P. PRASANNA KUMAR
Karnataka OFFICE AT HIGH COURT COMPLEX
OPP TO VIDHAN SABHA
BANGALORE 560 001 ...RESPONDENT
(BY SRI. PRASANNA KUMAR P., SPL.PP)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227
OF INDIAN CONSTITUTION READ WITH SECTION 482 OF CR.PC
PRAYING TO ISSUE WRIT OF CERTIORARI OR TO QUASH THE
IMPUGNED ORDER DATED 27TH MAY 2024 PASSED IN SPL.
C.NO.378/2021 PASSED BY THE XLIX ADDL. CITY CIVIL AND
SESSIONS JUDGE (SPECIAL COURT FOR TRIAL OF NIA CASES) (CCH-
50) AT BANGALORE.
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WP No.16865/2024
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
ON 06.11.2024, COMING ON FOR PRONOUNCEMENT OF ORDERS
THIS DAY, K.S.MUDAGAL J., MADE THE FOLLOWING:
CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
CAV ORDER
(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)
Accused No.21 in Spl.Case No.378/2021 on the file of
XLIX Addl. City Civil and Sessions Judge (Spl. Court for trial of
NIA cases), Bengaluru has filed the above petition seeking
quashing of the order of rejection of his application under
Sections 243(3) and 312 of Cr.P.C. read with Rule 4(3) of the
Karnataka Payment by Government of Expenses of
Complainants and Witnesses (Attending Criminal Courts) Rules,
1967 ('Rules, 1967' for short).
2. Petitioner and his co-accused are being tried in
Spl.Case No.378/2021 on the basis of charge sheet filed by
National Investigation Agency for the offences punishable under
Section 120B IPC and Sections 18, 38, 39 of Unlawful Activities
(Prevention) Act, 1967 ('UAPA' for short) .
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3. The case of the prosecution in brief is as follows:
i) Accused Nos.1, 2, 4 and 7 to 15 being the members
of the Terrorist Organisation viz., Lashkar E Taiba ('LET' for
short) in association with the other accused entered into
criminal conspiracy to commit terrorist acts by way of target
killings of important personalities of Hindu Religion and Police
Officers by using firearms, ammunitions, thereby to strike
terror in the people, disturb communal harmony and commit
robbery/dacoity to raise funds for terrorist activities. In
pursuance of such criminal conspiracy they collected weapons,
recruited men, practiced firing, to incite communal disharmony
identified religious leaders as targets for killing, made
preparations by procuring implements for committing
robbery/dacoity to raise funds for terrorist activities, procured
multiple mobile connections through fake IDs and exchanged
e-mails though encrypted messages for concealing the design
to commit crime. On 29.08.2012 at 12.30 p.m., in furtherance
of such conspiracy, accused Nos.1 and 2 had reached near the
house of Sri Seshachala to commit murder of Pratap Simha.
But, they were arrested and from them a motorcycle, illegal
pistol, live rounds, etc were seized.
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ii) The petitioner was raising funds and providing
logistic and financial support in arranging functions of LET in
Riyadh. He was bringing people to Isterah. In such functions
speakers from Pakistan used to address the members of
assembly and organizers would identify the potential persons to
get recruited to LET. Thus, he was supporter of LET an
organization of terrorists in Saudi Arabia, Pakistan and their
associates in India and he intended to strike terror in India.
4. The Trial Court on framing the charges against the
accused is conducting the trial. On 15.02.2024, examination in
chief of PW.13/a Scientist F at C-DAC from
Thiruvananthapuram, Kerala was completed. On that day at
the request of the petitioner and other accused the matter was
adjourned to 19.03.2024. On 19.03.2024 also the petitioner
sought time for cross examination. The Trial Court granted
time and adjourned the case to 05.04.2024 subject to the
accused paying TA and DA of PW.13. The Special Public
Prosecutor in compliance with the Court order to enable the
accused to deposit TA, filed memo dated 01.04.2024
calculating the travel expenditure of PW.13 at Rs.20,650/-. The
petitioner and accused No.24 filed application under Sections
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243(3) and 312 of Cr.P.C. read with Rule 4(3) of the Rules,
1967 requesting the Trial Court to fix the TA and DA of PW.13
as per Rule 4(3) of the Rules, 1967. They claimed that as per
the said Rules, batta payable to PW.13 is far less than
Rs.20,650/-.
5. The prosecution filed counter to the application
contending that PW.13 is Scientist in C-DAC which is an
autonomous body and therefore, the above said Rules are not
applicable to him. It was further contended that PW.13 being a
Scientist has to give evidence in several other cases. The
accused deliberately protracted the proceedings. Having regard
to his official position and important service to public, PW.13
cannot be asked to travel by train.
6. The Trial Court on hearing the parties by the
impugned order rejected the application on the following
grounds:
i) The Rules relied on by the accused/petitioner are
not applicable to PW.13 as he is working as
Scientist F at C-DAC which is a society registered
under the Societies Registration Act, 1860.
ii) PW.13 is not Government servant drawing salary
from Government of India.
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iii) The applicants having failed to cross examine the
witness, though he appeared twice cannot claim the
benefit of their own wrong.
7. Sri Mohammed Tahir, learned counsel for the
petitioner reiterating the grounds of petition and the application
submits that as per Sections 243(3) and 312 of Cr.P.C. read
with Rule 4(3) of the Rules, 1967, the witness is entitled to TA
and DA only as per the Rules and not as claimed by the
prosecutor. He submits that the order of the Trial Court is
contrary to the aforesaid Rules and the judgment of the learned
Single Judge of this Court in M.N.Nayeem vs. State of CBI1.
8. Sri P.Prasanna Kumar, Special Public Prosecutor
submits that evidence of PW.13 could not be completed due to
the dilatory tactics of the petitioner and other accused and he
was made to appear before the Court several times. He further
submits that considering the conduct of the accused, Court
granted adjournment subject to payment of TA and DA to
PW.13. PW.13 is Scientist F in C-DAC which is the society
registered under the Societies Registration Act, 1860 and not a
Government department. Therefore, the Rules relied on cannot
1
Crl.P.No.5107/2010 (DD 25.10.2010)
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be applied to him. Summoning such witness again and again
diverts the precious public time and function. Considering
aforesaid facts and circumstances and Section 309 Cr.P.C. the
Trial Court has rightly accepted the memo submitted by the
prosecution regarding travel expenses of PW.13. The judgment
relied on is not applicable and that is rightly distinguished by
the Trial Court. Absolutely there are no grounds to interfere
with the impugned order and petition be dismissed with costs.
9. On careful consideration of submissions of both side
and the materials on record, the point that arises for
consideration is "whether the impugned order suffers the vice
of arbitrariness or illegality?"
ANALYSIS
10. There is no dispute that on 15.02.2024 and
19.03.2024 the Trial Court granted adjournment for cross
examination of PW.13 at the instance of counsel for the
accused. By 19.03.2024 the witness had attended the Court
three times. Adjournment was granted subject to the petitioner
and co-accused depositing the witness's TA and DA calculated
by the Special Public Prosecutor. Special Public Prosecutor on
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01.04.2024 filed memo as per Annexure-E stating that the total
travel cost of the witness is Rs.20,650/-.
11. The petitioner and accused No.24 filed application
as per Annexure-F under Sections 243(3) and 312 Cr.P.C. read
with Rule 4(3) of Rules, 1967 contending that as per those
provisions the witness is entitled to TA and DA only at the rates
specified therein. As already stated, that was opposed by the
prosecution on the ground that those Rules are not applicable
to the witness and having regard to the procrastination by the
accused and standing of the witness, seeking reduction of TA is
unjustifiable.
12. To examine whether the prayer of the petitioner
and his co-accused are covered under the provisions quoted in
the application, it is necessary to reproduce Section 312 of
Cr.P.C:
"312. Expenses of complainants and witnesses.--
Subject to any rules made by the State Government,
any Criminal Court may, if it thinks fit, order payment,
on the part of the Government, of the reasonable
expenses of any complainant or witness attending for
the purposes of any inquiry, trial or other proceeding
before such Court under this Code."
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Reading of the above provision clearly shows that, the said
provision is meant for the payment of expenses by the
Government and not by the accused or other parties. Reading
of the said provision further shows that the Court has the
discretion to award reasonable expenses of any witness
attending the Court for inquiry or trial.
13. Section 243(3) Cr.P.C. relied on by the petitioner
and his co-applicant reads as follows:
"243. Evidence for defence.--(1) The accused shall then
be called upon to enter upon his defence and produce
his evidence; and if the accused puts in any written
statement, the Magistrate shall file it with the record.
(2) If the accused, after he has entered upon his
defence, applies to the Magistrate to issue any process
for compelling the attendance of any witness for the
purpose of examination or cross-examination, or the
production of any document or other thing, the
Magistrate shall issue such process unless he considers
that such application should be refused on the ground
that it is made for the purpose of vexation or delay or
for defeating the ends of justice and such ground shall
be recorded by him in writing:
Provided that, when the accused has cross-
examined or had the opportunity of cross-examining any
witness before entering on his defence, the attendance
of such witness shall not be compelled under this
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section, unless the Magistrate is satisfied that it is
necessary for the ends of justice.
(3) The Magistrate may, before summoning any witness
on an application under sub-section (2), require that the
reasonable expenses incurred by the witness in
attending for the purposes of the trial be deposited in
Court."
Reading of the above provision shows that first of all the said
provision applies to the defence evidence i.e., the evidence
which the accused seeks to lead. Section 243(3) clearly shows
that when a witness is summoned on the application of the
accused, the Court has the discretion to fix reasonable
expenses incurred by the witness in attending the Court and
that shall be deposited in the Court. Section 243 does not say
that it is subject to any Rules in that regard. Therefore, the
said provision also does not advance the case of the petitioner
or the co-applicant to say that they are not liable to pay the
cost.
14. The title of Rules, 1967 relied on by the petitioner is
as follows:
'Karnataka Payment by Government of Expenses of
Complainants and Witnesses (Attending Criminal Courts)
Rules, 1967.'
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The title of the Rules as well as preamble of the said Rules
clearly show that they are made for the purpose of payment of
expenses of the witnesses by the Government and not by the
other parties. Therefore, the Trial Court was right in not finding
merit in the contention that the batta is payable only as per
those Rules. Reading of the judgment in Nayeem's case
referred to supra shows that in the said case the witnesses
were all local Government Officers. Therefore, as held by the
Trial Court the said judgment is not applicable to the facts of
the present case.
15. PW.13 is a Scientist from Thiruvananthapuram,
Kerala. Summoning him again and again disturbs not only his
work but public time and service to the public. Though the
petitioner's Counsel submits that adjournment was sought on
medical ground, the same is not substantiated. It is material to
note that the application was filed by the petitioner and
accused No.24. Only the petitioner has challenged the said
order. Accused No.24 has not questioned that. So far as
accused No.24, the order has attained finality. There cannot be
split verdict on the same issue. On that ground also the
petition is unsustainable.
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16. Chief examination of PW.13 commenced on
08.01.2024. Adjournment was granted on 15.02.2024 at the
instance of the accused for cross examination. Second time
adjournment was granted on 19.03.2024. The matter is
dragged for close to one year due to the conduct of the
petitioner who is a convict in U.K and Saudi Arabia, only due to
his objections to pay costs to the witness. Moreover the order
dated 19.03.2024 granting time subject to granting TA and DA
is not challenged.
17. The above facts and circumstances clearly support
the prosecution's contention that the petitioner is abusing the
process of the Court by filing such applications only to
procrastinate the proceedings. Therefore, the petition is liable
to be dismissed with costs. Hence the following:
ORDER
Petition is dismissed with costs of Rs.10,000/- payable to
District Legal Services Authority, Bengaluru Urban District.
Order of Trial Court regarding deposit of TA of PW.13
amounting to Rs.20,650/- shall be complied within 10 days
from the date of this order, failing which the right of the
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petitioner to cross-examine the said witness shall stand
forfeited.
If the costs are not paid to DLSA within 10 days from the
date of this order, the Member Secretary, DLSA shall recover
the same as arrears of land revenue.
Sd/-
(K.S.MUDAGAL)
JUDGE
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
AKC
