London-based music director Nadeem Akhtar Saifee, absconding after being accused of involvement in the murder of music baron Gulshan Kumar, has moved the Bombay high court through his father to seek the withdrawal of non-bailable warrants and red corner notices issued against him in 1997.
The petition, filed by his Mumbai-based father Yunus Saifee, is likely to come up for hearing before a division bench on December 20.
Well-known criminal lawyers Majeed Memon and Ashok Mundargi will argue Nadeem's case, sources told PTI.
The warrants and red corner notices were issued in September 1997 after the Indian government initiated extradition proceedings against Nadeem in Britain. The petition prayed that though the British courts had rejected the Indian government's extradition proceedings, the warrants and red corner notices issued by Interpol had hindered Nadeem's movement as he cannot travel outside Britain, where he sought asylum in 1997.
Yunus Saifee's petition said Nadeem feared that if he travelled outside Britain, he could be arrested or detained and a second innings of extradition against the principles of double jeopardy could be held against him. It prayed that Nadeem had been tried once for extradition proceedings in respect of the murder of music magnate Gulshan Kumar and any similar proceedings for the same offence would be against the principles of natural justice and double jeopardy. Nadeem's father sought a direction from the court to the Central Bureau of Investigation to recall the red corner notices against Nadeem and to take steps to ensure that his name is deleted from the list of absconding accused with Interpol.
The petition said Nadeem was in London when Gulshan Kumar was murdered on September 12, 1997. The then Mumbai police commissioner and Maharashtra home minister had, in separate press conferences, alleged Nadeem was the prime conspirator. This was followed by the extradition suit filed by India in the House of Lords in Britain, which was rejected.
Saifee's petition enclosed the London court's order, which had observed that the accusation of murder and conspiracy against Nadeem was not made in good faith or in the interest of justice. The judges had observed it would not be proper to return Nadeem to India because of 'misbehaviour of police which have tainted the evidence so as to render a fair trial impossible.'
The London court expressed unhappiness with the Indian authorities for not placing on record the retraction of a confession made by accused-turned-approver Mohammed Shaikh Ali, who had allegedly attended conspiracy meetings in Dubai with Nadeem.
A magistrate in Mumbai had refused to record Ali's confession as he feared for his life and that of his kin. In the Indian court too, the petition said, all except one of the 19 accused who faced trial were acquitted of conspiracy charges as these could not be established.
The petition enclosed a copy of the trial court's verdict, which said the conspiracy theory -- that alleged Nadeem had hired gangster Abu Salem to kill Gulshan Kumar -- had failed.
Actor Chunkey Pandey had also not supported the prosecution by saying that he had seen Nadeem having a secret conversation with Abu Salem and the trial court had also observed that there was no evidence to establish that the approver and other accused had met Nadeem and absconding accused Qayoom in Dubai, the petition claimed.
The petition said the warrants issued by the Indian government against Nadeem were executed in London, where he was arrested in 1997. After his arrest, the warrants became defunct. Once his whereabouts were located and Indian authorities were informed about this, the red corner notices could be said to be in existence, it argued.
It is a well settled position in law that if a warrant is cancelled or executed, then a fresh one after its cancellation or execution could not be issued, the petition contended. The prosecution's case is that Nadeem had hired gangster Abu Salem to kill Gulshan Kumar.
After Salem was extradited from Portugal, he had told authorities that Nadeem had no role in the killing of Gulshan Kumar. This to a certain extent exonerated Nadeem, the petition claimed. As far as Salem is concerned, the government had assured authorities in Portugal that after his extradition he would not be tried in some cases, including the trial related to the murder of Gulshan Kumar. Furthermore, Salem would be tried in few cases but will not be given capital punishment or imprisonment exceeding 25 years.
'There may be various considerations for the government of India to drop charges against Salem in the Gulshan Kumar murder case but the fact remains that he was once shown as the main accused and now discharged from the case without any trial. On the other hand, Nadeem was tried by UK courts and evidence was sought to be led against him in Indian courts. In both judicial findings, Nadeem stands absolved,' the father's petition said.
It is well-settled principle that there cannot be two sets of standards against two individuals similarly placed but the plea of Nadeem's father to the police for withdrawal of warrants and recall of red corner notices had fallen on deaf ears, the petition said.