IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

(DISTRICT : AHMEDABAD)

Criminal Misc. Application No. 6692 of 2015

Atik Ujma @ Jahangir Mulla …Petitioner

V/s

State of Gujarat & Another …Respondents

AFFIDAVIT IN REPLY ON BEHALF OF

THE RESPONDENT NO. 2

I, Mohammad Markur Ullakhan, Age - 45 years, Occupation -

Property Broker, Resident At 403, Prime Center, Old Jansatta

Press, Mirzapur, Ahmadabad, do hereby solemnly affirm and

state on oath as under that,

1. I have been served with the notice of this Honorable Court

along with petition & its annexures. I have gone through

with the said notice, memo of petition and its annexure. I

am the original complainant of I CR No. 54/2015

registered with Ellish bridge Police Station for the offences

punishable u/s. 387, 506 (2) of I.P.C. read with section

25(1)(b)(a) of the Arms Act and under section 135 of the

Gujarat Police Act. Moreover, I am the respondent no. 2

and I am aware of entire controversy & facts leading to

this petition and therefore I am able to depose correct

facts before this Honorable Court.

2. At the outset, I seriously deny, dispute and controvert the

facts stated and allegations made therein except the facts

which are specifically admitted by me in this reply

affidavit.
3. I say that the applicant accused has threatened me for 10

lacs of Rupees and have shown me gun, which means the

applicant accused has illegal gun also, the said fact is itself

very serious and requires investigation by the investigation

agency. I say that the applicant accused is the head of

criminal gang and having associates who can do anything

for him.

4. I say that the applicant accused is a harden criminal and

there are very serious and glaring antecedents in his

name. I say that the applicant accused has committed four

offences of murder registered with different police stations

and three kidnapping offences. Apart from the above very

serious offences there are other offences also registered

against his name. It is submitted that the above said

antecedents volumely speaks about the conduct, criminal

history of the applicant accused and hence the interim

relief may kindly be vacated and the investigation may

kindly be allowed to proceed further in the interest of

justice.

5. I say that the following offences are also registered against

the petitioner which shows the recent conduct and criminal

history of the applicant.

 I CR No. 107/1992 registered at Vejalpur Police Station

for the offences punishable under sections 302 of IPC

and 135 of B P Act.

 II CR No. 3164/2010 registered at Vejalpur Police

Station for the offences punishable under sections 394,

294-B, 506(2), 427, 114 of IPC

  I CR No. 83/2013 registered with Karanj Police Station,

for the offences punishable under section 325, 324,

342, 506(2), 114 of IPC and 135 of BP Act.

 I CR NO. 265/2013 with Karanj Police Station for the

offences punishable under section 326, 114, 264-B of

IPC and u/s 135 of B P Act.

 I CR No. 3142/2014 with Karanj Police Station for the

offences punishable under sections 294-B, 506(2), 114

of IPC

These are the list of criminal cases which the

respondent no. 2 could get by way of RTI

applications and there are other offences also

against him which the authority can produce the

entire list. The copies of certain FIRs are annexed

herein and marked as “Annexure – R/I” to this

affidavit.

6. I say that the applicant accused used to extort money

from the local businessmen by administering serious life

threat and hence he has been externed by the authority

vide an order dated 16.07.2014 passed by the Assistant

Commissioner of Police, Ahmadabad Police, Zone – 6. I

further say that at time of commission of offence the

applicant was illegally present in the city of Ahmedabad

despite the fact he has been externed from Ahmedabad

City, Ahmedabad Rural, Gandhinagar, Kheda and Mehsana

District. A copy of externment order dated 16.07.2014

passed by the Assistant Commissioner of Police,

Ahmadabad Police, Zone – 6 is annexed herein and

marked as “Annexure – R/II” to this reply affidavit.

7. I say that at page 22, a representation is made by the wife

of the applicant which is nothing but a pressurizing tactic

in order to save the applicant from fair investigation. It is

submitted that the wife in her representation accepts that

the applicant was involved with notorious “Abdul Wahab

Gang” but she tactfully lied by saying that recently the

applicant has turned to a good citizen. There are serious

offences registered against the applicant in the year 2010,

2011, 2012, 2013, 2014, 2015 and then she says that the

accused turned to a good citizen. And therefore the aid

representation cannot be believed. It is submitted that the

allegation is made against the Police Inspector of Ellish

bridge Police Station without joining him as party

respondent to this petition. I say that the same is

deliberate and calculative steps of the applicant accused.

8. I say that there is or there was no partnership between the

applicant and the complainant and therefore there is no

question of any dispute in partnership or money

transaction. No agreement oral or registered is either

pleaded or produced on record by the applicant to prove

his version. Even otherwise the same is question of fact

and therefore cannot be decided in a quashing proceeding.

I say that the factum of partnership is not even pleaded in

the quashing application. I say that the applicant has

obtained the order of stay by exercising misrepresentation

and fraud upon this Honorable Court and hence the

present application and the interim relief may kindly be

rejected with exemplary cost.

9. I say that there is no substance in the affidavit produced

by the applicant on the contrary it shows the high handed

 nature of the applicant. I say that these two affidavits are

nothing but an attempt to subvert the direction of

investigation. I say that the applicant has committed more

than 20 offences and this experience of committing crime,

the accused has learnt to pressurize the investigation and

the police authority.

10. I say that no relief as prayed for in Special Criminal

Application No. 1678/2015 was granted by this Honorable

Court and the said petition was simply disposed of and

therefore, the applicant cannot rely upon the order dated

25.03.2015 at page 37. I further say that if a petitioner

believes that the order dated 25.03.2015 has not been

complied with, the accused should have filed appropriate

application available under the law but his quashing

petition cannot be entertained or maintainable on the said

ground.

11. I say that I have serious threat of life and therefore I

have asked for the police protection which has been

awarded to me and my family. I say that my family cannot

live normal life due to fear and threat of the applicant

accused. It is further submitted that nowadays also the

applicant accused is pressuring me to give up my

complaint.

12. Under the above circumstances the respondent no. 2

prays with folded hand that the application of the applicant

accused may kindly be rejected with heavy cost and the

interim relief may kindly be vacated in the interest of

justice.

What is stated herein above are true and correct.

Solemnly affirm on this 20th day of July, 2015 at Ahmedabad.

---------------------------------

Deponenet
Delhi High Court in Ms. Neelam Katara vs.
Union of India (Crl WP 247/2002) dated 14.10.2003 w

The guidelines have been issued by Usha Mehra and Pradeep Nandrajog., JJ on a

petition filed by Neelam Kataria, whose son Nitesh was allegedly murdered by Rajya

Sabha MP D.P. Yadav's son Vikas and nephew Vishal.

The Delhi High Court has given the following guidelines in giving witness

protection:

1. The Court has also made it compulsory for the investigating officer of a case to inform

the witness about the new guidelines.

2. The Court has appointed the Member Secretary of the Delhi Legal Services Authority

to decide whether a witness requires police protection or not.

3. The competent authority shall take into account the nature of security risk to him/her

from the accused, while granting permission to protect the witness.

4. Once the permission is granted, it shall be the duty of the Commissioner of Police to

give protection to the witness.

The High Court said that its order would operate until legislation is passed in this regard.

Safety of the petitioner is in danger

Th

There are reasonable basis of threat

Police is to ensure the safety and security of the petitioner and

his family

His safety may not be jeopardize on account of any antisocial

elements

Here the accused knows the victim – complainant, his residential

address, his work place, his children & family etc.

The law commission 198th report says that the wintess be

protected at state’s cost and even if the need arise to relocate

the wintess and his close relatives, that should also be done by

the State at State’s cost but here in the present case, the state

agency has charged Rs. 1,80,000/- from the complainant –

witness – victim to ensure his safety and now further billing for

Rs. 2,____ which is compleltely unjust, unreasonabale, illegal

and agaisnt the very spirit of protection of witness agenda.

Supreme Court in NHRC vs. State of Gujarat

2003(9) SCALE 329, PUCL vs. Union of India: 2003(10) SCALE 967;
Zahira Habibullah H Sheikh and Others vs. State of Gujarat:
2004(4) SCC
158, and Shakshi vs. Union of India : 2004(6) SCALE 15 that a law
in this
behalf is necessary. More recently the same view was expressed by
the
Supreme Court in Zahira Habibulla Sheikh vs. Gujarat: 2006(3)
SCALE,
104.

5.4 Talab Haji Hussain Case: (cancellation of bail): (1958) The facts
in Talab Haji Hussain vs. Madhukar Purushottam Mondkar: AIR 1958 SC
376 were that the person was accused of having committed an offence
which was bailable but the High Court, in exercise of its inherent power,
allowed an application by the complainant for cancelling the bail on the
ground that "it would not be safe to permit the appellant to be at large".
The Supreme Court confirmed the order of cancellation and observed that
the primary purpose of the Criminal Procedure Code was to ensure a fair
trial to an accused person as well as to the prosecution. The Court
observed:

"It is therefore of the utmost importance that, in a criminal trial, witnesses

should be able to give evidence without inducement or threat either from
the prosecution or the defence....the progress of a criminal trial must not
be obstructed by the accused so as to lead to the acquittal of a really guilty
offender.... there can be no possible doubt that, if any conduct on the part
of an accused person is likely to obstruct a fair trial, there is occasion for
the exercise of the inherent power of the High Court to secure the ends of
justice.... and it is for the continuance of such a fair trial that the inherent
powers of the Hi*gh Courts, are sought to be invoked by the prosecution in
cases where it is alleged that accused person, either by suborning or
intimidating witnesses, or obstructing the smooth progress of a fair trial."

The cancellation of bail was justified on the basis of the conduct of the
accused subsequent to release on bail.

Swaran Singh vs. State of Punjab AIR 2000 SC 2017. The Supreme Court
(Wadhwa J) described the plight of witnesses in criminal courts as follows:

"Not only that a witness is threatened; he is maimed; he is done away with;

or even bribed. There is no protection for him."

5.14` Ms. Neelam Katara case (Delhi High Court): (2003) Guidelines for
witness protection issued:

We shall next refer to the guidelines suggested by the Delhi High Court in
Ms. Neelam Katara vs. Union of India (Crl. W No. 247 of 2002) on
14.10.2003, as applicable to cases where an accused is punishable with
death or life imprisonment. The significance of the guidelines is that they
are not confined to cases of rape, or sexual offences or terrorism or
organized crime. The Court suggested the following scheme:

Definitions:

(a) "'Witness' means a person whose statement has been recorded by the
Investigating Officer under section 161 of the Code of Criminal Procedure
pertaining to a crime punishable with death or life imprisonment.
(b) 'Accused' means a person charged with or suspected with the
commission of a crime punishable with death or life imprisonment.
(c) 'Competent Authority' means the Secretary, Delhi Legal Services
Authority.
(d) Admission to protection: The Competent Authority, on receipt of a
request from a witness shall determine whether the witness requires police
protection, to what extent and for what duration.
(2) Factors to be considered:
In determining whether or not a witness should be provided police
protection, the Competent Authority shall take into account the following
factors:
(i) The nature of the risk to the security of the witness which may emanate
from the accused or his associates.
(ii) The nature of the investigation in the criminal case.
(iii) The importance of the witness in the matter and the value of the
information or evidence given or agreed to be given by the witness.
(iv) The cost of providing police protection to the witness.
(3) Obligation of the police:

(i) While recording statement of the witness

under sec. 161 of the
Code of Criminal Procedure, it will be the duty of the Investigating Officer
to make the witness aware of the 'Witness Protection Guidelines' and also
the fact that in case of any threat, he can approach the Competent
Authority. This, the Investigating Officer will inform in writing duly
acknowledged by the witness.
(ii) It shall be the duty of the Commissioner of Police to provide security to
a witness in respect of whom an order has been passed by the Competent
Authority directing police protection."

The above guidelines laid down by the Delhi High Court are the first of its
kind in the country and have to be commended. But, they deal only with
one aspect of the matter, namely, protection of the witnesses. They do
however not deal with the manner in which a witness's identity can be kept
confidential either before or during trial nor to the safeguards which have
to be provided to ensure that the accused's right to a fair trial is not
jeopardized.

At present he is under externment order passed on 16.07.2014

by the Assistant Commissioner of Police ,Ahmadabad Police,

Zone – 6.

 Eventually the witness is tired and gives up."