1. Criminal Misc. Application No. 15506 of 2007 is filed by the applicant-third party in Criminal Appeal No. 1324 of 2007 to condone delay of 188 days in preferring the criminal appeal under section 34 of the pota, 2002 against the final judgment and order passed by the Special Court (POTA) dated 25.06.2007 in POTA Case No. 10 of 2003.

Criminal Misc. Application No. 535 of 2008 is filed by the very applicant-third party in Criminal Appeal No. 18 of 2008 to condone delay of 352 days in preferring the criminal appeal under section 34 of the pota, 2002 against the order dated 18.12.2006 passed by the Special Court (POTA) below Exh. 855 in POTA Case No. 10 of 2003.

Criminal Misc. Application No. 534 of 2008 is also filed by the very applicant-third party in Criminal Appeal No. 17 of 2008 to condone delay of 254 days in preferring the criminal appeal under section 34 of the pota, 2002 against the order dated 26.03.2007 passed by the Special Court (POTA) below Exh. 898 in POTA Case No. 10 of 2003.

2. That on 26th March, 2003 one Shri Haren Pandya, Ex-Home Minister for the State of Gujarat while going for his morning walk at Law Garden, Ahmedabad City was shot at while parking his car near Law Garden and when removed to the hospital, Shri Pandya was found to have scummed to the said injuries and was declared dead. On the basis of the complaint lodged by Shri Janak Singh Khusal Singh Parmar, FIR being 1st C.R. No. 272 of 2003 was registered at Ellisbride Police Station on 26.03.2003 i.e. on the very same day and initial investigation for two days remained with Ellisbridge Police Station. With the consent accorded by the Government of Gujarat and the consent of the Government of India, the case was transferred to Central Bureau of Investigation-respondent No. 1 herein and as per practice of C.B.I., same was re-registered as RC.2(S)/2003-SIU.I/SIU.II/CBI/ New Delhi on dated 28.03.2003.

3. In another incident of 11th March, 2003, one Shri Jagdish Tiwari, a VHP leader of Ahmedabad was fired upon. He was admitted to the hospital for treatment and one bullet was recovered from his body. He lodged complaint with 1st P.I., Bapunagar Police Station being FIR - 1st C.R. No. 101/2003 for the offences punishable under Sections 307, 34 of the Indian Penal Code and Section 25(1)(a)(b) of the Arms Act. Subsequently, with the consent accorded by the State Government vide notification dated 28.04.2003 and Government of India vide Cabinet Secretariat dated 29.05.2003, the said case was also transferred to C.B.I. and same was re-registered as RC.5(S)/2003-SIU.I/CBI/ New Delhi on 02.06.2003.

4. Two separate cases registered by the local police station relating to the life of attempt of Shri Jagdish Tiwari and murder of Shri Haren Pandya were re-registered with C.B.I. From the evidence collected during the investigation from the said two cases allegedly revealed that the attempt on the life of Jagdish Tiwari and murder of Haren Pandya were not isolated incidents but part of the same transaction and in pursuance of a well designed conspiracy, they were done. During the course of investigation when it was revealed to the Investigating Officer that the conspiracy to attempt to murder of Shri Jagdish Tiwari allegedly disclosed a larger conspiracy to strike terror amongst the people or any section of people in Gujarat by using bombs or explosive substances or firearms as retaliation to the indiscriminate murders and atrocities caused on the innocent Muslims in Gujarat, the provisions of Prevention of Terrorism Act, 2002 (for short 'POTA') was invoked in the case and on 11.06.2003 an intimation was given to the concerned Court for adding sections of POTA in the existing sections of the FIR. Likewise, in the case of murder of Haren Pandya also, intimation was given by the Investigating Officer of adding the provisions of POTA in the FIR to the court of learned Chief Judicial Magistrate and learned Principal Judge, City Civil Court, Ahmedabad on 02.06.2003.

5. As both the incidents were alleged to be part of the same transaction and having well designed conspiracy, one charge-sheet for both the incidents came to be submitted by the C.B.I. against the accused persons. All the accused against whom charge-sheet came to be filed by the C.B.I. were put to trial by the learned Special Judge (POTA) Court, Ahmedabad.

6. It appears that after the charge-sheet came to be filed investigation was over and the accused persons against whom charge-sheet came to be filed were tried by the learned Special (POTA) Court, the applicant herein-third party and father of the deceased Harin Pandya submitted one application below Exh.855 inter-alia urging further probe of C.B.I. in the alleged murder of Harin Pandya to get the truth of the matter with the allegation of C.B.I. not having investigated on the crucial aspects of this alleged murder, giving instances of averred version of the P.A. of late Shri Harin Pandya and non-finding of pocket diary, shoes and wallet of the deceased and also on the ground that some needed crucial witnesses have not been examined by the prosecution. The said application came to be dismissed by the learned Special (POTA) Court vide order dated 18.12.2006.

7. That thereafter trial of the aforesaid POTA case came to be proceeded further and again the applicant herein-third party-father of the deceased of Harin Pandya submitted another application dated 27.03.2007 below Exh.898 in Special POTA Case No. 10 of 2003 almost on the similar ground mentioned in the earlier application below Exh.855 and reiterated his request for further investigation and interrogating the persons named in the application so as to reach the truth of the matter for this being case of political murder. It was alleged that murder of late Harin Pandya was political murder and at the instance of respondent No. 3 herein and after re-investigation respondent No. 3 be arraigned as accused. Said application below Exh.898 also came to be rejected by the learned Special (POTA) Court vide order dated 26.03.2007. It appears that thereafter nothing was done by the applicant-third party and trial came to be proceeded further and the said trial ended in conviction and the learned Special Judge (POTA) Court by judgment and order dated 25.06.2007 convicted the accused persons for the offences punishable under the POTA 2002 as well as under Sections 302, 120B of the Indian Penal Code and other relevant provisions for which they were tried. That thereafter, after POTA case came to be disposed of finally and ended in conviction, the applicant herein-third party has preferred the aforesaid three appeal challenging the order dated 18.12.2006 passed below Exh.855; order dated 26.03.2007 passed below Exh.898 and final judgment and order dated 25.06.2007 passed in POTA Case No. 10 of 2003. As in all the aforesaid appeals, there is delay, present three applications are filed joining following respondents:

1. Central Bureau of Investigation, Block IV, C.G.O. Complex, Lodhi Road, New Delhi-110003

2. State of Gujarat, Notice to be served through The Chief Secretary, Gujarat State, Sachivalaya, Gandhinagar

3. Shri Narendrabhai Modi, Chief Minister, Gujarat State, Sachivalaya, Gandhinagar

8. Before further considering the applications on merits, we are of the prima-facie opinion that respondent No. 3 is not required to be heard at this stage; has no locus and is not required to be continued as party respondent in the present proceedings at this stage. Therefore, we called upon Mr. Barot, learned Senior Advocate to make submissions with respect to continuing respondent No. 3 as party respondent in the present proceedings and whether he is required to be heard at this stage and whether he has any locus at this stage.

9. Mr. Barot, learned Senior Advocate appearing on behalf of the applicant has submitted that according to the petitioner respondent No. 3 is main accused on whose behest, to take political revenge deceased Haren Pandya son of the applicant has been murdered. It is also submitted by him that though some important witnesses were available such as wife of deceased Haren Pandya they were not examined by the investigating agency deliberately and that certain important documentary evidence has not been considered by the investigating agency-C.B.I. and real accused persons are not booked and/or against real accused there is no investigation at all. According to Mr. Barot, as there is prima facie case against respondent No. 3 for arraying him as an accused, before passing any order for re-investigation and/or proceeding against him as an accused, he is required to be heard and therefore, presence of accused No. 3 is required and it will be appropriate that accused No. 3 is heard even at this stage.

10. Mr. Harin Raval, learned Special Public Prosecutor appearing on behalf of C.B.I. - Investigating Agency has submitted that looking to the scheme of Code of Criminal Procedure, respondent No. 3 has no locus at this stage and therefore, respondent No. 3 could not have been arrayed in the present proceedings. It is submitted that the prayer of the applicant before the learned trial Court and even before this Court is for re-investigation against respondent No. 3 making allegations that respondent No. 3 is an accused and he is required to be prosecuted. It is submitted that looking to the scheme of provisions of the Code of Criminal Procedure till an appropriate charge-sheet is filed after investigation/re-investigation and/or cognizance is taken by the learned Magistrate, accused has no locus and is not required to be heard. It is submitted that therefore, respondent No. 3 is not required to be heard at this stage and is to be deleted. To continue respondent No. 3 in the present proceedings will be contrary to the scheme of Code of Criminal Procedure.

11. Mr. Kamal Trivedi, learned Advocate General has submitted that he appears on behalf of respondent No. 3 as he has been served with advance copies of the present applications and the appeals. He has raised preliminary objections against continuing respondent No. 3 in the present proceedings. It is submitted by him that the applications before the learned trial Court were for re-investigation and examination of certain witnesses and such applications were given after substantial evidence were recorded. It is submitted that even respondent No. 3 was not party to the proceedings before the learned trial Court and respondent No. 3 has been arrayed in the present proceedings with mala-fide intention; he could not have been arrayed as an accused in the present proceedings, therefore, he has to be deleted. Mr. Kamal Trivedi, learned Advocate General has submitted that as per Rule 32A of the High Court Rules and Form-B even it was the duty of the Office to raise objections joining respondent No. 3 in the present proceedings as even as per Rule 32A and Form -B only those persons who were there in the trial Court can be joined in the present proceedings before this Court and as names of the parties did not tally, therefore, Office was required to take objections. Mr. Trivedi, has taken us to various provisions of the POTA more particularly sections 2(a)(i), 29 and 49 of the pota act. He has also taken us to various provisions under the Code of Criminal Procedure more particularly Section 2(d), Section 2(r) and Section 173 of the Cr.P.C. Relying upon aforesaid provisions of the POTA and Code of Criminal Procedure, he has requested to delete name of respondent No. 3 from the present proceedings. He has also relied upon the decision of the Hon'ble Supreme Court in the case of Rambhai Nathabhai Gadhvi and Ors. v. State of Gujarat by further submitting that till cognizance is taken by the Court/Magistrate there is no question of hearing the accused.

12. Heard the learned Advocates appearing on behalf of the respective parties.

13. At the outset, it is required to be noted that as per this Court respondent No. 3 has no locus at this stage and he is not required to be heard, therefore, this Court is not required to hear learned Advocate General appearing on behalf of respondent No. 3 and more particularly even as this Court has not issued notice upon respondent No. 3. However, as learned Advocate General has been served with advance copies of the present applications and has made submissions, we have noted his submissions recorded herein above and recording the submissions of the learned Advocate General may not construed that we have heard respondent No. 3 and/or respondent No. 3 has any locus as for the reasons stated herein after respondent No. 3 is not required to be heard at this stage and has no locus, he is required to be deleted at this stage from the present proceedings.

14. It is required to be noted that what is challenged in the present proceedings are appeals under Section 34 of the POTA challenging the order dated 18.12.2006 passed below Exh.855 and order dated 26.03.2007 passed below Exh.898 rejecting the applications of the applicant which were given for re-investigation and examination of certain witnesses by making allegations that his son has been murdered for taking political revenge and against real accused there is no proper investigation and are not booked; with further allegation that on behest of respondent No. 3 his son has been murdered. It is also required to be noted and it appears that the applications were given by the applicant after substantial evidence was recorded by the learned trial Court. Therefore, respondent No. 3 can be said to be alleged prospective accused as per the applicant. Now looking to the various provisions and the scheme of Code of Criminal Procedure till an appropriate report/charge-sheet is filed against the accused after investigation/re-investigation and/or Magistrate takes cognizance there is no provision in the Code of Criminal Procedure to hear the accused. Mr. Barot, learned Senior Advocate appearing on behalf of the applicant has failed to satisfy this Court and/or has failed to show any provision under the Code of Criminal Procedure by which the Court is required to hear the accused before the charge-sheet is filed and/or cognizance is taken by the learned Magistrate. His only contention is that there is sufficient material/evidence against accused No. 3 and he is required to be prosecuted as an accused and there is merits in the applications.

15. It is to be noted that respondent No. 3 was not party before the learned trial Court and till charge-sheet is filed after investigation/re-investigation he has no locus. As stated herein above, the applications of the applicant were for re-investigation and examination of certain witnesses making allegations against respondent No. 3 and to array him as an accused. Assuming that such applications are/were allowed then consequence would be to re-investigate the case and after charge-sheet if Investigating Agency finds some material against some persons, charge-sheet is required to be filed and thereafter, they are to be prosecuted as an accused and till that stage that persons/accused has no locus. We fail to appreciate why and for what purpose respondent No. 3 is joined in the present proceedings which is only at the stage of considering the applications of the applicant for re-investigation. According to us at this stage respondent No. 3 has no locus and is not required to be heard and he could not have been joined as party respondent to the present proceedings being alleged prospective accused as according to us considering various provisions and scheme of Code of Criminal Procedure he is not be heard. Therefore, we do not think that respondent No. 3 is to be continued in the present proceedings and is required to be heard at this stage. Even considering the decision of the Hon'ble Supreme Court in the case of Rambhai (supra) till cognizance is taken there is no question of hearing the accused. As stated above, even as per the C.B.I. - Investigating agency respondent No. 3 could not have been arrayed as accused in the present proceedings and is not required to be heard at this stage. Even at the stage of Section 319 of the Code of Criminal Procedure till cognizance is taken by the learned trial Court and/or any charge-sheet is filed accused is not required to be heard.

16. Under the circumstances and for the reasons stated above, we direct to delete respondent No. 3 from the present proceedings i.e. in all the three applications as he is not required to be heard at this stage and he could not have been arrayed/joined as party respondent in the present proceedings. It is made clear that we have not expressed any opinion on merits while considering to delete respondent No. 3 from the present proceedings in favour of any of the parties and respondent No. 3 is ordered to be deleted from the present proceedings as according to us he has no locus at this stage; he is not required to be heard at this stage and he could not have been joined as respondent No. 3 in the present proceedings. Now the applications for condonation of delay will be heard on its own merits after deleting respondent No. 3 in the present proceedings.