1993 Bombay blasts: Court allows prosecution to use earlier witness testimonies against Farooq Takla, six others

MUMBAI: A special court hearing the third phase of the 1993 Bombay serial blasts case has allowed the prosecution to rely on witness testimonies recorded decades ago against seven accused who were arrested years after the main trial, including alleged conspirator Mohammed Farooq Yasin Mansoor alias Farooq Takla

MUMBAI: A special court hearing the third phase of the 1993 Bombay serial blasts case has allowed the prosecution to rely on witness testimonies recorded decades ago against seven accused who were arrested years after the main trial, including alleged conspirator Mohammed Farooq Yasin Mansoor alias Farooq Takla.

The order clears a crucial procedural hurdle for the prosecution in one of India’s longest-running terror trials. The March 12, 1993 serial blasts across Bombay killed 257 people and injured around 1,400.

Special Judge V D Kedar ruled that the conditions under section 299 of the Code of Criminal Procedure (CrPC) had been satisfied, allowing evidence recorded in the absence of absconding accused to be used against them after their arrest if the statutory requirements are met.

Rejecting objections raised by the defence to a June 19, 1995 order passed by the then-designated TADA court, judge Kedar held that the prosecution had independently established that the witnesses whose earlier depositions it sought to rely upon had either died, become medically incapable of testifying or remained untraceable despite bona fide efforts to locate them.

The dispute centred on a June 19, 1995 order in which the designated TADA court, after recording that certain accused had absconded and there was no immediate prospect of their arrest, permitted the prosecution to record evidence in their absence so that it could be used if they were arrested later.

During the second phase of the trial, the Supreme Court directed that accused arrested subsequently be allowed to identify witnesses they wanted to cross-examine, while requiring the prosecution to produce those witnesses wherever possible. In the present proceedings, the prosecution sought a declaration that it had complied with those directions and should therefore be allowed to rely on the earlier depositions of witnesses who could no longer be produced before the court.

Senior advocate Sudeep Pasbola, appearing for accused Munaf Halari and Mohammed Yusuf Sheikh, argued that although Halari had been named as an absconder in the 1995 order, Takla and five other accused were not. He contended that the order could not therefore be invoked against them, that the requirements of section 299 had not been fulfilled, and that the Supreme Court’s 2009 and 2011 directions in the cases of Abu Salem and Mustafa Dossa during the second phase of the trial could not automatically apply to the present proceedings.

The court, however, rejected the objections, holding that the current proceedings were “not independent or distinct trials but successive phases of the same prosecution arising out of a common criminal conspiracy.”

Judge Kedar also held that the omission of certain names from the annexure to the 1995 order could not, by itself, defeat the prosecution’s case. However, the court clarified that the admissibility of the earlier depositions would continue to remain subject to section 299 of the CrPC and the law laid down by the Supreme Court.

The court accepted the prosecution’s submission that four witnesses had died, one had become medically incapable of deposing because of advanced age, and two others remained untraceable despite repeated efforts. It noted that the prosecution had even offered to record the testimony of the medically incapacitated witness through a court commission, but the defence declined to cross-examine him through that mode. Another witness who was initially reported untraceable was eventually produced through video conferencing and cross-examined.

The court also distinguished the Supreme Court’s ruling in Mahendra Singh v/s State of Chhattisgarh, observing that unlike in that case, the TADA court had recorded the necessary satisfaction under Section 299 before permitting evidence to be recorded in the absence of absconding accused.

Allowing the prosecution’s application, the court held that, subject to section 299 and the law declared by the Supreme Court, the earlier witness depositions would be available to be read as evidence at the appropriate stage of the trial.

The present proceedings relate to seven accused who were apprehended years after the main trial in the March 12, 1993 Bombay serial blasts case.