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HC stays trial court`s order in Gulshan Kumar case
Mumbai High Court has stayed an order of a lower court which rejected the prosecution`s plea to treat the approver in Gulshan Kumar murder case as an accused and not as a witness in view of his hostile attitude.
Mumbai High Court has stayed an order of a lower court which rejected the prosecution's plea to treat the approver in Gulshan Kumar murder case as an accused and not as a witness in view of his hostile attitude.
Justice Vijaya Tahilramani, on November 9, stayed the impugned order until an appeal filed by Maharashtra government was disposed of. Earlier, the same judge had granted an interim stay. The judge ruled that pending the disposal of the state's application, the trial court's order was stayed. Accordingly, the defence lawyers would not be allowed to cross examine the approver Mohammed Ali Shaikh unless the appeal was decided.
On August 16, the trial court had deferred deposition of the approver until further orders on a plea made by the prosecution that it would prefer an appeal.
The prosecution had opined that grave prejudice would be caused to the state if examination of the approver was allowed while defence lawyers opposed the plea on the ground that the trial would be prolonged and delayed further.
On August 13, the court had rejected the prayer of public prosecutor Ujjwal Nikam to treat the approver as an accused. Judge M L Tahilyani also returned the certificate issued by the prosecutor withdrawing the pardon granted to approver. He opined that it should be filed at an appropriate stage.
The court had opined that it was up to the prosecution to examine the approver or declare him hostile and then cross examine him. "But defence lawyers have a right to cross examine him and this right could not be taken away".
On August 8, the prosecution had withdrawn the pardon granted to the approver after he feigned ignorance about the conspiracy leading to the killing of audio king.
Soon after declaring him as a hostile witness, prosecutor Nikam issued a certificate declaring withdrawal of pardon granted to Shaikh on the ground that he had wilfully concealed vital evidence pertaining to the case.
Nikam informed the court the nature of this witness had changed and he had now become an accused. Hence he should be tried separately. He also urged the court to treat his certificate issued against the approver as an exhibit.
The approver had raised a controversy in the past by filing a petition in Mumbai High Court urging for recall of pardon. He blamed the police for forcing him to become an approver and alleged that he was a victim of police excesses.
Mohammed Ali had also denied the letter written by him expressing his desire to become an approver and said it was not his handwriting. The court, however, turned down his plea saying the pardon once given could not be revoked.
The trial had been delayed by four years because the Union Government had filed an extradition case in UK against music composer and prime accused Nadeem Akhtar Saifee.
The House of Lords in UK discharged Nadeem on the ground that the evidence against him was "suspect" because the approver had disowned his version.
Bureau Report
Justice Vijaya Tahilramani, on November 9, stayed the impugned order until an appeal filed by Maharashtra government was disposed of. Earlier, the same judge had granted an interim stay. The judge ruled that pending the disposal of the state's application, the trial court's order was stayed. Accordingly, the defence lawyers would not be allowed to cross examine the approver Mohammed Ali Shaikh unless the appeal was decided.
On August 16, the trial court had deferred deposition of the approver until further orders on a plea made by the prosecution that it would prefer an appeal.
The prosecution had opined that grave prejudice would be caused to the state if examination of the approver was allowed while defence lawyers opposed the plea on the ground that the trial would be prolonged and delayed further.
On August 13, the court had rejected the prayer of public prosecutor Ujjwal Nikam to treat the approver as an accused. Judge M L Tahilyani also returned the certificate issued by the prosecutor withdrawing the pardon granted to approver. He opined that it should be filed at an appropriate stage.
The court had opined that it was up to the prosecution to examine the approver or declare him hostile and then cross examine him. "But defence lawyers have a right to cross examine him and this right could not be taken away".
On August 8, the prosecution had withdrawn the pardon granted to the approver after he feigned ignorance about the conspiracy leading to the killing of audio king.
Soon after declaring him as a hostile witness, prosecutor Nikam issued a certificate declaring withdrawal of pardon granted to Shaikh on the ground that he had wilfully concealed vital evidence pertaining to the case.
Nikam informed the court the nature of this witness had changed and he had now become an accused. Hence he should be tried separately. He also urged the court to treat his certificate issued against the approver as an exhibit.
The approver had raised a controversy in the past by filing a petition in Mumbai High Court urging for recall of pardon. He blamed the police for forcing him to become an approver and alleged that he was a victim of police excesses.
Mohammed Ali had also denied the letter written by him expressing his desire to become an approver and said it was not his handwriting. The court, however, turned down his plea saying the pardon once given could not be revoked.
The trial had been delayed by four years because the Union Government had filed an extradition case in UK against music composer and prime accused Nadeem Akhtar Saifee.
The House of Lords in UK discharged Nadeem on the ground that the evidence against him was "suspect" because the approver had disowned his version.
Bureau Report