C. K. BUCH, J. ( 1 ) RULE. Mr. A. D. Oza learned Public Prosecutor waives Rule on behalf of the respndent-Government in all matters. All these Cri. Misc. Applications have been moved by the accused persons for bail in connection with the FIR being CR-I No. 09 of 2002 came to be registered with Godhra Railway Police Station for various offences punishable under sections 143, 147, 148, 149, 337, 338, 328, 438, 320, 307, 120-B and 153-A of Indian Penal Code read with section 141 and 150 and 152 of the Indian Railways ACt read with sections 3 and 4 of the Prevention of Damages of Public Property Act and also under section 135 of the Bombay Police Act. On completion of the investigation qua the present petitioners and some other accused persons arrested in later point of time, have been charge sheeted and after filing of the charge sheet the learned JMFC (Railways) at Godhra committed the case against the accused so charge sheeted to the court of Sessions, Panchmahals at Godhra and a Case being Sessions Case No. 172 of 2002 came to be registered with the Sessions Court, Panchmahals at Godhra on 22. 2. 2002. A report under section 172 (2) of the Criminal Procedure Code (hereinafter referred to as the Code) was submitted against , in all, 57 accused persons including the present six petitioners for the offences referred to in the above said FIR. ( 2 ) ON 20. 9. 2002, seven other accused persons in respect of the above said FIR have been charge sheeted and thereafter investigating agency charge sheeted 3 other accused in respect of the above said FIR and crime being CR-I No. 9 of 2002 and all these accused persons were committed to the Court of Sessions. ( 3 ) PETITIONERS of Cri. Misc. Applications Nos. 606 of 2003, 857 of 2003, 864 of 2003 and 1031 of 2003 were initially arrested for distinct offences punishable under the Indian Penal Code in connection with the incident occurred within the limits of Godhra Town Police Station. On 28. 2. 2002, one of the petitioners Abdulrehman Yusuf Andhia was also arrested in connection with the incident occurred in Godhra Town of 27. 2. 2002, the day on which said incident occurred. On 28. 2. 2002, one of the petitioners Abdulrehman Yusuf Andhia was also arrested in connection with the incident occurred in Godhra Town of 27. 2. 2002, the day on which said incident occurred. ( 4 ) FOR the incident occurred and the offences committed within the limits of Godhra Town Police Station, one FIR was lodged and the offence was registered being CR No-I-66 of 2002 with Godhra Town Police Station. ( 5 ) THE petitioners of Cri. Misc. Applications Nos. 606, 857, 864 and 1031 all of 2003 were in judicial custody in connection with CR No. I-66 of 2002 registered with Godhra Town Police Station till 11th March 2002. An appliction for transfer warrant was made to the learned JMFC (Railways) at Godhra for custody of the accused persons mentioned in the said application including the petitioners of the above mentioned Cri. Misc. Applications, from Sabarmati jail to police custody, in connection with the offences registered pursuant to CR No. I- 9 of 2002 of Godhra Railway Police Station. Formal orders of issuance of transfer warrant came to be passed on 12. 3. 2002 and on 14. 3. 2002 several accused persons including the petitioners of the above mentioned four Cri. Misc. Applications were arrested in connection with the offences registered with Godhra Railway Police Station at Godhra in CR No. I-9 of 2002. All of them were remanded to police custody upto 30. 3. 2002. Meanwhile, the investigating agency had submitted a report to the learned JMFC (Railways) at Godhra to add the provisions{offences} punishable under the Prevention of Terrorism Ordinance of 2001 (hereinafter referred to as POTO) qua CR-No. I-9 of 2002. However, again the investigating agency prayed for dropping/differing provisions relating to offences punishable under POTO with a liberty to invoke the same on the strength of availability of evidence. After the Prevention of Terrorism Ordinance became an Act, it is known as Prevention of Terrorism Act, which is hereinaftrer referred to as POTA ). ( 6 ) THE petitioner of Cri. Misc. Application No. 842 of 2003 came to be arrested on 27. 4. 2002 and has been charge sheeted on 15. 6. 2002 and was committed to the Court of Sessions with a supplementary charge sheet. 6. 1. THE petitioner of Cri. Misc. ( 6 ) THE petitioner of Cri. Misc. Application No. 842 of 2003 came to be arrested on 27. 4. 2002 and has been charge sheeted on 15. 6. 2002 and was committed to the Court of Sessions with a supplementary charge sheet. 6. 1. THE petitioner of Cri. Misc. Application No. 863 of 2003 who was arrested for the offences registered with the Godhra Railway Police Station being CR-No. I-9 of 2002 on 14. 3. 2002, was remanded to police custody and on completion of the investigation, has been charge sheeted along with other accused persons of Sessions Case No. 172 of 2002. 6. 2. PETITIONERS of Cri. Misc. Applications Nos. 842 of 2003 and 863 of 2003 have been arrested in connection with the FIR registered with Godhra Railway Police Station being CR No. I-9 of 2002. So, their case is not a case of formal arrest on the strength of transfer warrant obtained from the learned JMFC (Railways) at Godhra. ( 7 ) THE bunch of all these 6 Cri. Misc. Applications are taken up for final hearing as the say of the petitioners are materially the same. The learned counsel appearing for the petitioners and the learned Addl. A. G. Mr. Kamal Trivedi and learned Public Prosecutor Mr. A. D. Oza had jointly submitted that all these six apublic Prosecutorlications may be heard jointly and they have no objection, if they are disposed of by a common order. ( 8 ) I have considered the legal as well as factual contentions raised by the petitioners and as it is possible to deal with and decide these petitions jointly, the same have been disposed of accordingly by this common order. ( 9 ) IN order to appreciate the say of the petitioners of each petition, it would be proper to mention few more facts of relevance, especially in the light of gravity of the allegations made by the State while resisting all these petitions. Cri. Misc. Application No. 606 of 2003 ( 10 ) THE petitioner in this petition was, initially, arrested in pursuance of a complaint registered with Godhra Town Police Station being CR No-I-66 of 2002 and he was also arrested on the strength of transfer warrant in connection with CR No. I-9 of 2002 on 13/14-3-2002 and at present he is in Central Jail, Sabarmati, Ahmedabad. He is a resident of Khedi Falia of Godhra Town, surrounded by Railway Colony. The brother of the petitioner in this petition is working as Train Ticket Examiner and his father is a retired employee of Indian Railways. It is contended that the officers serving with the Indian Railways and of Railway Protection Force (RPF) and Gujarat Railway Police are residing in the neighbourhood of the petitioner. He is running a business in the name and style of Awkar Dinning Hall-a partnership concern and he is also the proprietor of Gujarat Plastic Company which is manufacturing polyethylene bags. 10. 1 it is not a matter of dispute that he is a resident of the area since more than 20 years and is a regular income tax payer. By narrating the case of the prosecution in the charge sheet as well as in the additional charge sheet filed on 20. 9. 2002, the petitioner has contended that it is not even alleged that the petitioner had taken any active role in the ghastly incident. His name is not mentioned in any of the Acts of pulling the chain of the train or putting fire into it by putting rubbles{ burning rags) or carrying any inflammable liquid like petrol or pouring any such inflammable in coachNo. S. 6 and/or S. 7 of Sabarmati Express. 10. 2 in the statements of 100 witnesses recorded by the investigating agency, he has been implicated solely on the strength of statement of one Murlidhar Rochimal Mulchandani allegedly recorded on 20. 2. 2002. In para 11 of the petition, the gist of statement of this witness has been mentioned. According to this witness, he and his friends had seen from the back portion of A cabin that one Habib Patel, Bilal Haji Khalata, Farooq Bhanna, Karim Badan Kamil, Salim Shaikh and others of Godhra town were attacking the Sabarmati Express Train with deadly weapons. This witness knows almost all Muslim leaders and persons of Godhra Town by their names. According to the petitioner, this witness is a Viswa Hindu Parishad (VHP) worker and according to the prosecution he had been to Godhra Railway Station platform with other co-workers of VHP Janakbhai K. Dave, Gokulkumar @ Nitinkumar H Pathak and Dilipkumar, Ujamsi Jasadia, Rajeshbhai Vithalbhai Darji etc. 10. 3 further statement of this witness Murlidhar Rochimal Mulchandani came to be recorded on 3. 5. 10. 3 further statement of this witness Murlidhar Rochimal Mulchandani came to be recorded on 3. 5. 2002 wherein he had given the full names of other co accused persons ; but had not given the full name of petitioner. According to the petitioner, he is not Salim Shaikh ,but his real name is Abdulsalim Abdulgafur Shaikh. It is submitted that the statement of said Murlidhar is the only evidence and that too with some confusion about the correct name of the petitioner. Normally, it would not be possible for any court to hold him guilty of the offences allegedly committed qua the passengers travelling in Sabarmati Express Train or committing destruction of the property of Indian Railways. It is categorically averred by the petitioner that this witness Murlidhar knows the petitioner well and is also aware about his full name since years. Accompanying co-workers/friends of this worker-Murlidhar also know the petitioner; whereas no other witnesses have disclosed the name of the petitioner in their statements nor have they assigned any role to the petitioner. 10. 4. THE petitioner had approached the court of learned Addl. Sessions Judge, Panchmahals at Godhra for regular bail by filing Cri. Misc. Application No. 682 of 2002; but the learned Addl. Sessions Judge by his judgment and order dated 29. 7. 2002 rejected the bail plea. 10. 5 against the said decision the petitioner-accused had preferred a petitioner for bail before this Court being Cri. Misc. Application No. 7250 of 2002 but the same came to be withdrawn with a liberty to prefer fresh application for bail on account of filing of supplementary charge sheeted by the investigating agency in the month of September 2002. Against the same, some other accused persons were also arrested by the police. Therefore, it would be appropriate to quote the order passed by this court, while dealing with the above said Cri. Misc. Application on 27. 12. 2002 along with the bail applications preferred by other accused persons for this very offence:"i have heard the counsel appearing for the petitioner and Senior Advocate Mr. P. M. Thakkar in Criminal Misc. applications Nos 5439 of 2002 and 7259 of 2002. Misc. Application on 27. 12. 2002 along with the bail applications preferred by other accused persons for this very offence:"i have heard the counsel appearing for the petitioner and Senior Advocate Mr. P. M. Thakkar in Criminal Misc. applications Nos 5439 of 2002 and 7259 of 2002. It is submitted that the investigating agency has submitted the further additional charge sheets along with the papers of the further investigation carried out and therefore, the petitioners are inclined to approach the Sessions Court afresh on merits without arguing this matter on merits. Therefore, they may be permitted to approach the Sessions Court for bail. It is also submitted that the concerned Sessions Judge should be directed to consider the bail plea afresh without being prejudiced by the present withdrawal and the earlier order passed in this respective matters. Considering the nature of the submissions made by the learned counsel appearing for the petitioners and the learned Special Prosecutor Mr. J. M. Panchal, I am of the view that the petitioner should be granted permission to file a fresh bail application before the Sessions Court. If such bail applications are filed, then, the same should be heard and decided on merits in the light of the above observations. Directions accordingly. IT is clarified that this withdrawal also shall not cause any prejudice against the petitioners. If such bail application/s are preferred, then, the same should be heard and decided within four weeks from the date of filing of the concerned bail application. Copy of this order be kept in each of the matters. Direct service permitted. " ( 11 ) IT is contended by the petitioner that in the additional charge sheet filed by the prosecution, the names of the persons who allegedly took part in instigation and commission of the said crime are specifically mentioned with elaborate details. It is also alleged in the description and in the evidence collected by the prosecuting agency as to who acted as per the conspiracy and who instigated the mob at the railway track near A cabin, the name of the petitioner is not mentioned. Mr. P. M. Thakkar learned Senior Counsel has also placed reliance on this part of the evidence collected by the prosecution and has submitted that the petitioner has been falsely implicated in the alleged offence solely on the strength of the statement of Murlidhar Rochimal Mulchandani. Mr. P. M. Thakkar learned Senior Counsel has also placed reliance on this part of the evidence collected by the prosecution and has submitted that the petitioner has been falsely implicated in the alleged offence solely on the strength of the statement of Murlidhar Rochimal Mulchandani. It is also the case of the petitioner that this prosecution witness Murlidhar is a communal minded person and in the past, he was found involved in the communal riots and was an accused in the case of murder of one Abdulrahim during the communal riots of 1992. He was the complainant in one criminal case filed against the persons belonging to minority community for the offence punishable under sections 307 and 504 of IPC read with section 114 IPC and under section 11 (1) (c) of Cruelty to Animal Act 1960. It is pointed out by Mr. Thakkar from the memo of petition that the petitioner was also implicated in the offence alleged to have taken place as aftermath of Godhra Railway incident ( i. e. present CR No. I-9 of 2003) and he has been acquitted along with all other accused by judgment and order dated 16. 8. 2002 in connection with CR. No. I-66 of 2002 registered with Godhra Town Police Station tried by the learned Sessions Judge in Sessions Case No. 133 of 2002. In the same way, he has been dragged into the crime registered as CR-I-No. 09 of 2002. Mistaken identity is also one of the grounds pleaded by the learned counsel for the petitioner and it is submitted that the petitioner has been wrongly arrested as he is not Salim Shaikh who was located by Murlidhar R. Mulchandani at the scene of offence. Absence of identification parade is a material lacuna in the investigation. It is also one of the grounds that the statement of DSP Raju Bhargav has been recorded who had rushed to the scene of offence immediately and he has not identified the petitioner-accused as a person present at the scene of offence; otherwise the petitioner being a welknown industrialist and a businessman of Godhra town, Shri Bhargav would have identified him. The presence of the petitioner at the scene of offence is highly improbable. The distance between two places viz. The presence of the petitioner at the scene of offence is highly improbable. The distance between two places viz. A cabin of Godhra Railway station and the area of Godhra Town where the incident of 27th occurred and the back ground of time of commission of both these offences , clearly favours the petitioner. So it is submitted that on facts, there is no scope for any court to link the present accused with the ghastly crime committed against the passengers of coach No. S. 6 and/or S. 7 of Sabarmati Express or the properties of Indian Railways. It is submitted that there are number of reasons under which prima facie satisfaction can be recorded to the effect that there are grounds for believing that the petitioner is not guilty of committing such offence i. e. the offence punishable under POTO. Cri. Misc. Application No. 842 of 2003 ( 12 ) IT is contended that the petitioner in this petition has been falsely implicated by the police in the present case by alleging artificial and wooden evidence. According to the petitioner, he falls in the category/privilege under section 437 Code as he is infirm and is totally blind since 1977. The learned Sessions Judge while rejecting his bail plea has not given any weightage to thecertificate issued on 10. 10. 1997 whereby it has been certified by the doctor that he has"visual impairment about 100%". 12. 1 according to Mr. A. A. Saiyed learned counsel for the petitioner, there is no evidence alleged to have been collected whereby it can be inferred that present petitioner is directly or indirectly involved in the offence in question. The petitioner is implicated on the statements of police constables Somabhai and Vinubhai which were recorded after several days of the incident. It was possible for the learned Sessions Judge to hold that there is no convincing legal evidence against the petitioner and there areno grounds on which the present petitioner can be held guilty of the offence. At the same time there is convincing prima-facie evidence in the papers of investigation whereby it can be inferred that the petitioner had played any role in the entire or any part of the incident or he has taken any part in committing the offence by instigating the mob or joining the mob or by irritating the police persons. According to Mr. According to Mr. Saiyed the investigating agency was requested with a written application by the father of the present petitioner that the petitioner is his son and he is blind and therefore, the police machinery should be polite towards him. Undisputedly the petitioner has been arrested on 27. 4. 2002. It is argued that none of the eye witnesses to the incident has implicated present petitioner in the offence, though persons from Railway police, RPF and several members of Indian Railways were present. According to the petitioner, one inspector of CID (Crime) of district Godhra has created evidence against the petitioner and therefore he should be enlarged on bail and the medical certificate obtained by the investigating agency contrary to the certificate issued by the civil surgeon should be ignored and the infirmity/blindness certified by the civil surgeon, Godhra in the year 1997 for all purpose should be taken into account while exercising discretionary powers vested with this court. Cri. Misc. Application No. 857 of 2003 ( 13 ) THE petitioner in this petition is an advocate aged about 45 years and it is contended that he is a permanent resident of Godhra town. After the arrest and filing of the charge sheet by the investigating agency, the petitioner herein preferred, application for bail in Sessions Case No. 172 of 2002 which came to be rejected on 24. 9. 2002 by the learned Addl. Sessions Judge. Thereafter the petitioner had approached this court by filing Cri. Misc. Application No. 741 of 2002; but the same came to be withdrawn with permission to prefer fresh application for bail in view of the fact that the investigating agency has submitted supplementary charge sheet along with papers of further investigation. The petitioner was granted permission to approach the Sessions Court with fresh bail application vide order dated 27. 12. 2002 by this court. The common order dated 27. 12. 2002 passed in such other matters, is already reproduced in para 10. 5 of this judgment. The petitioner, thereafter approached the learned Sessions Judge, Godhra vide application exh. 150 for bail and ultimately the learned Sessions Judge rejected the bail plea of the petitioner, by his order dated 30. 1. 2003. 13. 1 it is contended by the petitioner that on the strength of the information i. e. FIR the police started investigation on 27. 2. 2002. 150 for bail and ultimately the learned Sessions Judge rejected the bail plea of the petitioner, by his order dated 30. 1. 2003. 13. 1 it is contended by the petitioner that on the strength of the information i. e. FIR the police started investigation on 27. 2. 2002. The police also recorded the statements of various persons including the statement of one Rajeshkumar Vithalbhai Darji. This witness is the ex-President of Godhra Nagarpalika. According to his statement he is a worker of VHP and he had been to the Godhra Railway Station to welcome kar Sevaks who were returning from Ayodhya by Sabarmati Express train, with tea and breakfast etc. He has also named some of his VHP member-friends and Kar Sevaks from Ahmedabad. This witness has implicated the present petitioner in the offence. While narrating the incident, he has stated that none of the witnesses has given the name of the present petitioner as person present amongst the crowd and committing the offence during the incident in question, in the statement recorded on 27. 2. 2002 i. e. the date of the incident. The petitioner has produced statement of Rajeshkumar Darji recorded on 27. 2. 2002 vide Annexure. B. It is submitted that an attempt of implicating the present petitioner being member of the Muslim community and President of Godhra Nagarpalika was made from 28. 2. 2002. The prosecution mainly relied upon the statement of Murlidhar R. Mulchandani of 28. 2. 2002. He had given the name of about 9 persons including the name of one Kalota. But he has not given the full name of the accused-Kalota. It is submitted by Mr. Anandjiwala learned counsel for the petitioner that Kalota is the surname. Neither the name of the present petitioner-accused nor his fathers name has been referred to by this witness Murlidhar R. Mulchandani. 13. 2 thereafter on 3. 5. 2002, further statement of this witness came to be recorded; but he has not given the full name of the present petitioner. It is argued that had that person was with the present petitioner, who is a practicing advocate as well as President of Godhra Nagarpalika and known to almost everybody, this witness Murlidhar Mulchandani would have given the name specifically or with some identification marks. It is argued that had that person was with the present petitioner, who is a practicing advocate as well as President of Godhra Nagarpalika and known to almost everybody, this witness Murlidhar Mulchandani would have given the name specifically or with some identification marks. The petitioner has produced the copy of the electoral rolls of Godhra town and there are many persons having the surname of Kalota residing in Godhra town. It is the say of the petitioner that it is a case of false implication and/or mistaken identity, mainly relying upon the statements of police personnel which came to be recorded, for the first time, after a lapse of 8 days, falsely implicated the present petitioner in the crime by showing his presence on the spot of the incident. The learned Sessions Judge while dealing with the bail plea has observed that some witnesses have implicated number of accused persons without assigning details of the role played by them. Mr. Anandjiwala has relied upon the observations made by the learned Sessions Judge. Undisputedly, even as per the say of the prosecution, DSP Shri Raju Bhargav had rushed to the spot of the incident in a couple of minutes; but his statement has been recorded by the investigating officer on 23. 3. 2003. In his statement, DSP Raju Bhargav, has stated that at about 8. 35 a. m. he was arranging for further additional service of Fire Brigade personnel from Kalol and Lunawada and at that time at about 8. 35 a. m. near the garnalla of Single Falia, he met Mohmed Hussein Kalota and Bilal Haji and all these 3 persons met and on seeing the white cap and beard of Bilal Haji, the Kar Sevaks excited believing him to be a Muslim and therefore, DSP requested both these persons to leave to place and bad requested Mr. Kalota - the present petitioner to take said Bilal from the place and therefore, Kalota took Bilal away from the place. It is submitted by Mr. Anandjiwala that the origin of the incident, if considered and the fact that present petitioner was to leave to Gandhinagar along with his Secretary in connection with some administrative work of Godhra Nagarpalika, he ought not to have been even arrested for the alleged offences committed by the unruly mob. 13. 3. Mr. It is submitted by Mr. Anandjiwala that the origin of the incident, if considered and the fact that present petitioner was to leave to Gandhinagar along with his Secretary in connection with some administrative work of Godhra Nagarpalika, he ought not to have been even arrested for the alleged offences committed by the unruly mob. 13. 3. Mr. Anandjiwala has tried to submit that after knowing about occurrence of some untoward incident at Godhra Railway station, the petitioner had attempted to contact DSP Mr. Bhargav but as the DSP had already left from his residence for the spot of the incident, the petitioner had gone there at a later point of time and met the DSP. Political rivalry has played a vital role in the false implication of the present petitioner in the serious ghastly crime; otherwise, no independent witnesses whose statements were recorded on 27. 2. 2002 would have given the name of the present petitioner as an accused and the role played by him during the incident. The statement of Rajeshkumar Vithalbhai Darji was recorded on 27. 2. 2002, copy of which is produced at Annexure-D wherein he has referred to the name of number of witnesses allegedly present with him on the platform of Godhra Railway Station, where the first event occurred. It is also mentioned in the statement that after the arrival of police and RPF personnel, there was lathi charge and police firing and some of the persons running away towards Single Falia were arrested. According to the prosecution, after arrival of fire brigade personnel and the rescueoperations were going on, another crowd of about 2500-3000 persons belonging to minority came to the spot of the incident near A cabin and with a view to get the arrested persons released from police custody, they pelted stones against the police and the police lathi charged and fired the crowd. This witness has not named the petitioner as person present either in the crowd or in the company of DSP Mr. Raju Bhargav. In the further statement of this witness recorded on 3. 5. 2002 also he has not referred the name of the present petitioner specifically. It is submitted by Mr. Anandjiwala that even as per the statement of Murlidhar R. Mulchandani recorded ion 28. 2. Raju Bhargav. In the further statement of this witness recorded on 3. 5. 2002 also he has not referred the name of the present petitioner specifically. It is submitted by Mr. Anandjiwala that even as per the statement of Murlidhar R. Mulchandani recorded ion 28. 2. 2002 he had seen all the 7 (seven) persons named in the statement with deadly weapons damaging the coaches of train near A cabin of Godhra Railway station. But this statement is without any corroboration. On the contrary, DSP Mr. Bhargav has not assigned any role to the present petitioner and the role allegedly played by the present petitioner which is narrated by the other witness viz. mobile police jeep driver-Mangalji Ramjibhai, is totally different. It is submitted that witness Murlidhar R. Mulchandani having inimical terms and political rivalry , with the present petitioner, has attempted to implicate the present petitioner in the serious crime and no court of prudence would hold the present petitioner guilty of any offence allegedly occurred near the A cabin of Godhra Railway station or on the the platform of Godhra Railway station when the railway coaches were allegedly set on fire or when the big crowd had attempted to snatch away the persons who were already arrested by the police and RPF personnel after the incident, when the rescue operations were going on. Cri. Misc. Application No. 863 of 2003 ( 14 ) IT is contended that the petitioner in this petition has been arrested on 14. 3. 2002. But he is innocent and he has been falsely implicated in the incident. According to him, he is a permanent resident of Idga Mohalla of Godhra town having his family settled in Godhra town and he is owning immovable property in Godhra in his own name. After his arrest, the investigating agency has filed charge sheet on 22. 5. 2002 but there is no evidence connecting the present petitioner with the alleged crime. On the date on which the petitioner was arrested, the investigating agency was not having any clue as to the connection of the present petitioner-accused with the crime and the investigating agency was not even clear as to on what basis the present petitioner has been arrested. Though the petitioner was remanded to police custody for 15 days, no identification parade was conducted. Though the petitioner was remanded to police custody for 15 days, no identification parade was conducted. So according to the petitioner there is no legal evidence as to his presence at the scene of offence. There is no recovery of either any weapon or muddamal from the petitioner-accused. It is averred that after filing of the charge sheet, the investigating agency has recorded the statements of Ajaykumar Kanubhai Baria and Anwar Abdul Satar and their statements under section 164 of the Code has been recorded by the JMFC. The prosecution mainly relies upon the statement of one unnamed witness and the same has been kept in an unsealed envelope. But the present petitioner is not therefore, aware whether his name is referred to by that witness in that statement and the role assigned to him. The petitioner had applied for bail before the court of Sessions and the same was rejected by the learned Addl. Sessions Judge, Panchmahals at Godhra. Said order of rejection of bail was challenged and fresh application for bail was preferred being Cri. Misc. Application No. 7411 of 2002 but ultimately said application was withdrawn as the petitioner was directed to approach the Sessions Court afresh along with other accused persons who had preferred separate bail applications before the High Court. The order passed by this court in these petitioners has been referred to in para 10. 4 of this order. 14. 1. FRESH application for bail preferred by the petitioner in the competent Sessions Court being Misc. Cri. Application No. 172 of 2002 has been rejected vide order dated 24. 1. 2003 passed by the learned Addl. Sessions Judge along with the bail applications of other accused persons being application exh. 148. According to the charge sheet filed by the investigating agency, present petitioner is original accused no. 29 in the original Sessions Case. It is submitted that considering the nature of general allegations, in absence of any prima-facie evidence, about the involvement of the present petitioner and the length of the period for which the present petitioner accused is in judicial custody, the court should exercise the discretion in favour of the present petitioner observing that there is no prima-facie evidence to hold him guilty for the alleged offence and therefore, he should be enlarged on bail. Cri. Misc. Cri. Misc. Application No. 864 of 2003 ( 15 ) THE petitioner accused in this petition is doing business and is permanently residing at Maulana Azad Road, Godhra. According to him, he has been falsely implicated because of his relations with the President of Godhra Nagarpalika Shri Mohmedhusein Kalota. As mentioned earlier, said Kalota is a practicing advocate. It is contended that he is shown as accused no. 46 in the original sessions case. The petitioner was earlier arrested in connection with the offence registered with Godhra Town Police Station being CR- No. I-66 of 2002 and thereafter he has been arrested by transfer warrant issued on 13. 3. 2002 and since 13. 3. 2002 he is in judicial custody in the present offence. He was also remanded to police custody for interrogation. It is the say of the petitioner that in this offence one witness viz. Rajeshkumar V. Darji has implicated him by naming him in the statement. The person who has identified Mr. Kalota the President of Godhra Nagarpalika, has also not named the present petitioner nor has he assigned any role to the present petitioner. There is no other evidence in the whole charge sheet. It is submitted that the name of the present petitioner and one of the accused Harun Dava has been subsequently added. The petitioner has mentioned in para 9 of the petition that he has been falsely implicated because the witness was the President of Godhra Nagarpalika and his election as President was challenged before the court and the court had directed for re-election accepting the plea raised before the court. There was vote of no confidence against the President and it was passed by 2/3rd majority. Thereafter said Mohmedhusein Kalota , advocate became the President of Godhra Nagarpalika. In the said procedure and election, the petitioner accused has supported said Mohmedhusein Kalota and therefore, because of the enmity, the petitioner has been falsely implicated by this sole witness. It is argued that DSP Mr. Raju Bhargav has referred the name of the present petitioner along with the other persons who were present on the spot. But this responsible officer has not assigned any role to the present petitioner and he has not attributed any overt offending act to the present petitioner. It is argued that DSP Mr. Raju Bhargav has referred the name of the present petitioner along with the other persons who were present on the spot. But this responsible officer has not assigned any role to the present petitioner and he has not attributed any overt offending act to the present petitioner. He has been acquitted by the Sessions Court in the Sessions Case No. , 153 of 2002 which came to be registered on the strength of the above mentioned CR-No. I-66 of 2002. It is submitted that the star witness Murlidhar R. Mulchandani was also one of the witnesses examined by the prosecution during the said trial and his version has not been accepted. It is further submitted that while exercising discretionary jurisdiction the court may not ignore one fact that this Murlidhar Mulchandani has not been believed by the the court in a case where the accused were charged for participating in an offence concerning communal disturbances. There are so many other eye witnesses even as per the say of the prosecution but none of them has named the present petitioner though he is welknown being close to the said Kalota- President of Godhra Nagarpalika who is also a business of man Godhra town. So there are number of grounds whereby it can be safely inferred , prima-facie , that present petitioner is not guilty of the offence punishable under POTA. The details as to the filing of the earlier petitions and the results of them are mostly similar to the other petitions referred to hereinabove. It is categorically submitted that in the statements of Ajay Baria and Anwar Kalota recorded under section 164 of the Code, they do not involve the present petitioner in the matter. The period of detention in judicial custody also should be considered in light of the fact that substantial part of the investigation is over and about 3 charge sheets have been filed. The fact of alleged confession made by one or two accused persons qua the criminal conspiracy hatched , has no significance because there is no evidence linking the present petitioner with any of the persons who have allegedly hatched the alleged conspiracy. In the circumstances it is submitted that discretion may be exercised in favour of the present petitioner and the petitioner may be enlarged on bail. Cri. Misc. In the circumstances it is submitted that discretion may be exercised in favour of the present petitioner and the petitioner may be enlarged on bail. Cri. Misc. Application No. 1031 of 2003( 16 ) THE contentions of the present petitioner are mostly similar to the contentions raised by the petitioners of Cri. Misc. Applications No. 606,857 and 866 of 2003. Initially the petitioner was arrested for the incident allegedly occurred in Godhra town and he has been acquitted by the competent court. The petitioner is an employee of Godhra Transport Credit Society and he is collecting the daily savings from the members. It is contended that he worked from 8. 00 a. m. to 12. 00 noon and when he was collecting the amounts from the members , all of a sudden curfew was imposed in Godhra town. He had collected amounts from approximately 170 persons and there are entries in respect of the same in the passbook of the members. When he was intercepted by the police, he was going to the residence of Accountant-Khurshid Hayal and he was taken by the police as one of the violators of curfew suddenly imposed and was implicated in the above said offence occurred in Godhra town. Thereafter on the strength of transfer warrant issued by the learned JMFC he has been arrested formally in the present crime. It is submitted that the finding recorded by the learned Sessions Judge while acquitting the present accused on pages 26 and 27 may be considered while exercising discretionary jurisdiction in favour of the petitioner. It is further argued by the learned counsel for the petitioner that while dealing with the bail plea of the present petitioner the fact of enlargement of number of accused persons on bail, who has participated in the ghasty crime committed through out the State simultaneously in Baroda and Ahmedabad may be considered. The case of the present petitioner may not be the case which can be equated with the cases of other accused on the principle of parity. The case of the present petitioner may not be the case which can be equated with the cases of other accused on the principle of parity. But the resistance putforward by the prosecution on the strength of ghastiness of the crime may not be considered as a base in rejecting the bail plea of the present petitioner and the case of the present petitioner individually may be considered in the light of the nature of evidence collected by the prosecution and legality of evidence collected by the prosecution qua the role played by the present petitioner and the effect of criminal conspiracy allegedly hatched prior to the commission of the present offence. It is lastly submitted that there are number of grounds under which it can be inferred that present petitioner is not guilty of the offence punishable under POTA. So the court may exercise the discretion in favour of the present petitioner-accused in enlarging him on bail. ( 17 ) I have considered the rival contention and I would like to mention the submissions advanced in the light of the relevant legal provisions. ( 18 ) ALL these petitioners have been moved by the respective petitioner in the month of January and February 2003. Cri. Misc. Application No. 606 of 2003 was circulated on 31. 1. 2003 and as the advance copy was served on the respondent-State the learned Spl. Public Prosecutor Mr. J. M. Panchal appeared and had waived the notice of Rule for respondent-State and had requested that the matter may be adjourned to 14. 2. 2003 and thereafter to 19. 2. 2003. Affidavit in reply on behalf of the respondent State has been tendered on 5. 3. 2003. Meanwhile, pending admission hearing, learned Spl. Public Prosecutor had informed the court that the State Government has resolved to apply POTA to the crime in connection with the petitioner, who have prayed for bail and the court was informed that now the State will have to appoint a Public Prosecutor in view of the Scheme of POTA and it will not be possible for him to appear on behalf of the State Government in these petitions. So at his request the matter was adjourned and ultimately the State arranged for Public Prosecutor and learned Public Prosecutor Mr. . A. D. Oza appeared and tendered affidavit in reply on behalf of the State on 5. 3. 2003. So at his request the matter was adjourned and ultimately the State arranged for Public Prosecutor and learned Public Prosecutor Mr. . A. D. Oza appeared and tendered affidavit in reply on behalf of the State on 5. 3. 2003. This court was entrusted with a different type of assignment during the concerned roster but as the petitioners of these petitions have moved applications for bail and had withdrawn the same with permission to file fresh petitions before the concerned Sessions Court, these applications have been heard by this bench. ( 19 ) MR. P. M. Thakker learned Senior Counsel appearing for Mr. Y. M. Thakker for the petitioner in Cri. Misc. Application No. 606 of 2003 has taken this court through the contents of the FIR and the relevant statements of eye witnesses and the officials recorded mainly on 27. 2. 2002 and 28. 2. 2002 and in the early days of investigation. He has also taken me through the various stages concerning the progress of the investigation of the crime and the filing of the charge sheet including the supplementary chargesheets on respective date and the fact of alleged development whereby the State Government resolved to apply POTA accepting the proposal of the Investigating Agency. 19. 1 when the learned counsel for the petitioner was developing his arguments on facts as well as on the relevant legal aspects, learned Addl. Advocate General Mr. Kamal Trivedi requested the court to deal with the preliminary points and the basic objections taken by the State Government in the affidavit in reply. It is necessary to mention that some deviation has been made while hearing the parties and affording them opportunity to submit their contentions so that they feel satisfied that they have been afforded opportunity to put forward their case before the court. ( 20 ) IN the first part of submissions learned counsel Mr. P. M. Thakker and Mr. It is necessary to mention that some deviation has been made while hearing the parties and affording them opportunity to submit their contentions so that they feel satisfied that they have been afforded opportunity to put forward their case before the court. ( 20 ) IN the first part of submissions learned counsel Mr. P. M. Thakker and Mr. S. V. Raju have been heard and both of them have submitted that the petitioners are in judicial custody for more than one year; no formal charge sheet under the POTA has been filed and the Special Court lacks jurisdiction especially when the competent Sessions Court has rejected the bail plea of the petitioners accused on merits after filing of the charge sheets; when the petitioners have already approached this court making grievances against the decision of the concerned Sessions Court, they have already invoked the jurisdiction of this court under section 39 of the Code when these petitions were moved and came up for hearing for the first time and the Spl. Public Prospector. had appeared and waived notice on behalf of respondent - State, the provisions of POTA were not invoked. 20. 1. THE second part of the submission is the submission of the learned Addl. Advocate General Mr. Trivedi. As the learned counsel for the petitioners have consented that the learned Addl. Advocate General may be heard first on preliminary points so that they can respond to the legal submissions so made by the learned Addl. Advocate General while putting their case before the court. So, I have heard the learned Addl. Advocate General. 20. 2. IN the third part I have heard Mr. P. M. Thakker learned Sr. Counsel responding to the preliminary submissions,on merits, made by the learned Addl. Advocate General as to the maintainability of the petitions in the light of the invocation of POTA, constitution of Special Court to hear the cases, concerned criminal offences punishable under POTA and the fact of Sessions Cases pending in the court of learned Sessions Judge, Panchmahals at Godhra. 20. 3. MR. Anandjiwala, Mr. S. V. Raju, Mr. M. A. Kharadi and Mr. E. E. Saiyed learned counsel for the respective petitioner are also heard in the light of the facts of their respective petition. 20. 4. MR. Raju and Anandjiwala, though have mostly adopted the arguments advanced by Mr. Thakker on larger points raised by learned Addl. 20. 3. MR. Anandjiwala, Mr. S. V. Raju, Mr. M. A. Kharadi and Mr. E. E. Saiyed learned counsel for the respective petitioner are also heard in the light of the facts of their respective petition. 20. 4. MR. Raju and Anandjiwala, though have mostly adopted the arguments advanced by Mr. Thakker on larger points raised by learned Addl. Advocate General, they have attempted to clarify the factual as well as legal points relevant to the bail plea raised by the present petitioners. .