26/11 attacks case: HC slams Abu Jundal's document bid as 'fishing inquiry,' quashes special court order

Mumbai, Nov 4 (PTI) Calling the request a mere "fishing and roving inquiry," the Bombay High Court quashed a special court order that directed the production of confidential documents to Zabiuddin Ansari alias Abu Jundal, who trained the 26/11 Mumbai terrorists in Hindi and local mannerisms.

The high court noted that the trial remained stayed since 2018 due to the lower court order.

A bench of Justice R N Laddha on Monday allowed petitions filed by the Delhi Police, the Ministry of Civil Aviation, and the Ministry of External Affairs challenging the trial court's 2018 directive that required them to furnish specific confidential documents sought by Ansari.

With the high court's ruling, the trial against Ansari, which had been stayed since 2018, will resume.

The documents sought by Ansari pertained primarily to procedural aspects surrounding his arrest and the process by which he was brought within the court's jurisdiction.

The petitioners, represented by Solicitor General of India Tushar Mehta, argued that these documents were "unrelated to the substantive charges," such as passports, flight manifests, and immigration records.

Mehta contended that the documents were neither "necessary" nor "desirable" for the just determination of the trial proceedings, and their production would "derail the proceedings" by introducing extraneous contentions.

Crucially, the High Court noted in its 36-page judgement, made available on Tuesday, that the trial has remained stayed since 2018 due to the lower court order.

Emphasising the need for expediency in serious cases, Justice Laddha said that a timely trial is essential to ensure justice and accountability. The High Court judgment said the trial court (hearing the 26/11 terror attack case against Ansari) "ought not to have invested time in passing an absolutely unsustainable order which is nothing but a fishing and roving inquiry at the behest of the accused”.

Ansari had claimed that he was unauthorisedly detained by the Delhi Police's special cell in June 2012 in Saudi Arabia, where he was residing, and was subsequently brought to India.

As per the special cell, Ansari was arrested from outside Delhi Airport, where he was found loitering.

The documents sought by Ansari included the passports of the officers of the Delhi Police who had travelled to Saudi Arabia, the passenger manifest of the Jet Airways flight from Dammam to Delhi, the emergency travel document issued by the Ministry of External Affairs, and relevant immigration records.

The High Court asserted that the place of arrest loses significant relevance to the proceedings once the accused is in lawful judicial custody and has the full opportunity to defend himself, particularly when the issue is raised belatedly during the trial.

The court noted that Ansari's custody was handed over to the Mumbai Police for the trial in the 26/11 terror attacks case.

The allegations and assertions (about his arrest) made by Ansari pertain exclusively to the case investigated and prosecuted by the Delhi Police's special cell concerning an alleged conspiracy involving terror outfits Jaish-e-Mohammad and Lashkar-e-Taiba, the High Court said.

"It is thus clear that the assertions made by respondent 2 (Ansari) about his alleged wrongful confinement have nothing to do with the trial of the present offence (26/11 terror attacks)," the High Court said.

It added that Ansari has not made any allegations with regard to his custody being handed over to the Mumbai Police in July 2012.

The high court further noted that Ansari had not raised this allegation regarding his arrest before the magistrate in Delhi when he was produced for the first time for remand.

The Mumbai Police secured custody of Ansari legally after securing an order from the competent court in Delhi, the court said.

The court said Ansari’s request for the documents appears to be a "belated and tactical" maneuver lacking any substantive justification.

Ansari is facing trial for offences emanating from the heinous and unprecedented terrorist attacks perpetrated in Mumbai on November 26, 2008, which resulted in extensive loss of lives and posed a grave threat to national security, the court said.

"The accused is alleged to have actively conspired in the commission of an offence of a grave nature that has profoundly impacted the sovereignty and integrity of the nation," the High Court said.

It ruled that the trial judge "completely misdirected itself" by invoking a section of the Criminal Procedure Code to compel the production of confidential documents from third parties.

The HC clarified that the section of the CrPC neither confers upon the accused nor empowers the court to initiate a "speculative or exploratory inquiry" into the place of arrest, especially since the inquiry bore no rational nexus to the adjudication of guilt.

The Solicitor General argued that Ansari had not raised any objection to the legality of his arrest at any stage during remand or judicial custody but did so belatedly during trial.

The documents sought by Ansari pertain solely to procedural aspects surrounding his arrest and do not bear upon the merits of the case, Mehta had argued, adding production of such documents would serve no purpose and would instead facilitate a roving and fishing inquiry.

Mehta further said that matters of national security are not within the purview of judicial review and only the executive is best positioned to determine what constitutes national security.

The location and manner of Ansari’s arrest are extraneous and bear no relevance to the determination of his guilt or innocence in the case, Mehta said.

Ansari's counsel, Yug Chaudhary, argued that Ansari was residing in Saudi Arabia, where he was detained by local authorities and then handed over to Indian officials.

Ansari is accused of having not only planned the attacks, but also of personally training the ten Pakistani terrorists who struck Mumbai on November 26, 2008, specifically teaching them Hindi and crucial details about Mumbai's topography to help them blend in.

The attacks, carried out by the terrorists who entered the financial capital from the Arabian Sea on the night of November 26, 2008, claimed 166 lives, including foreigners.

Investigators allege that Ansari played a key role as a handler of the terrorists. The sole terrorist caught alive, Ajmal Kasab, was convicted and sentenced to death by a special court in 2010 and was hanged in November 2012. PTI SP SKL NSK