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CASE NO.: Appeal (crl.)  183 of 2007

PETITIONER: DATTATRAY KRISHNAJI GHULE

RESPONDENT: STATE OF MAHARASHTRA & ANR.

DATE OF JUDGMENT: 09/02/2007

BENCH: CJI K.G. BALAKRISHNAN & D.K. JAIN

JUDGMENT: J U D G M E N T (Arising out of S.L.P.(Criminal) No. 4600 of 2006) With

CRIMINAL APPEAL NO. 184 OF 2007 (Arising out of S.L.P.(Criminal) No. 4603 of 2006)

HITENDRA MANOHAR VICHARE - APPELLANT

VERSUS

STATE OF MAHARASHTRA & ANR. - RESPONDENTS

D.K. JAIN, J.:                 Leave granted. 2.      The challenge in these two appeals is to a common  Order dated 3rd March, 2006 passed by a learned Single  Judge of the High Court of Judicature at Bombay,  rejecting the bail applications preferred by the appellants.  3.      The appellants having been arrested in connection  with the same case (C.R. No. 131 of 2001), registered at  Thane Nagar Police Station for the offences punishable  under Sections 192, 217, 218, 263(a) of the Indian Penal  Code read with Sections 3(1)(ii), 3(2), 3(3), 3(4) and  Section 34 of the Maharashra Control of Organised Crime  Act, 1999 (hereinafter referred to as "MCOCA"), common  questions arise for consideration and therefore, both the  appeals are being disposed by this judgment. At the  relevant time both the appellants were police officers, in- charge of investigations in the aforementioned case.   Both of them were arrested on 8th October, 2004.   4.      The case of the prosecution against the appellants,  in brief, is as under: 5.      On 16th May, 2005 appellant P.S.I Hitendra  Manohar Vichare (hereinafter referred to as Vichare)  arrested one Sandeep Kandar and fake stamps worth  Rs.51,000/- were seized.  On the same day C.R. No. 131  of 2001 was registered.  Vichare investigated the case  from 16th May, 2001 to 22nd May, 2001.  Appellant P.I.  Dattatray Krishnaji Ghule (hereinafter referred to as  Ghule) took over investigations in the said case on 22nd  May, 2001.  On 23rd May, 2001 one Maruti Car was  intercepted and a huge quantity of fake stamps was

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seized from the occupants of the car.   Ghule was in- charge of the investigations from 22nd May, 2001 to 26th  December, 2001.  As a result of investigations, three  charge-sheets were filed against several persons,  including one Shabbir Sheikh and Abdul Karim Ladsab  Telgi, head of an organised crime syndicate, engaged in  unlawful activities relating to printing of counterfeit  stamps and other documents and sale thereof.  However,  subsequently, under the orders of this Court,  investigations in the case were transferred to the C.B.I.  and the provisions of MCOCA were invoked. As a result of  fresh investigations by the C.B.I. cases were registered  against the appellants under the aforementioned  provisions and they were arrested on 8th October, 2004.   6.      The main allegations against the appellants in the  charge-sheet filed by the C.B.I., inter-alia, are: despite  having come to know about the illegal activities of said  Shabbir Sheikh, Vichare did not arrest him and  conspired with Ghule to aid and abet the organised crime  syndicate headed by Telgi to carry on their illegal  activities; he neither carried out search at the offices of  Telgi nor did he seal his property; Ghule took over  investigation with the intention to extract pecuniary  benefits for himself; both of them did not seal the  premises belonging to Telgi with an ulterior motive to aid  and abet the organised crime syndicate; they deliberately  framed two persons of the rival gang on the instructions  of said Shabbir; they showed false recovery from one  Sandeep Kandar; recorded statement in order to  implicate him; registered a false complaint (C.R. No.  131/2001) against him and also destroyed/fabricated  evidence by entering into criminal conspiracy with the  members of Telgi gang by misusing their official position.   7.      Taking these circumstances into consideration, as  noted above, the learned Single Judge has rejected  application for bail preferred by the appellants. 8.      We have heard Mr. T.L.V. Iyer and Mr. Arvind  Sawant, learned senior counsel respectively on behalf of  Ghule and Vichare and Mr. Sushil Kumar, learned senior  counsel on behalf of the C.B.I.   9.      Learned senior counsel for the appellants have  submitted that no inference can be drawn on the basis of  the material on record, referred to in the impugned order  that the appellants had conspired or abetted commission  or facilitation of the crime with which Telgi or other co- accused were associated.  It is asserted that in the  charge-sheet filed against the appellants there are no  allegations that they had indulged in "continuing  unlawful activities" within the meaning of Section 2(1)(d)  of MCOCA or have committed "organised crime" within  the meaning of Section 2(1)(e) of MCOCA.  It is urged that  there is not an iota of evidence against the appellants to  hold that they belong to an "organised crime syndicate"  within the meaning of Section 2(1)(f) of MCOCA. It is  thus, pleaded that Section 3 of MCOCA cannot be  invoked against them.  In the alternative, it is submitted  that on account of the alleged acts of omission and/or  commission, at the highest only Section 24 of MCOCA  may be attracted, for which offence the maximum  punishment provided is three years’ rigorous  imprisonment and the appellants having already spent  more than two years in judicial custody they are entitled  to be enlarged on bail.  It is also pointed out that some of  the similarly situated accused have already been granted  bail by this Court.

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10.     Learned senior counsel appearing for the C.B.I.,  while opposing the grant of bail to the appellants, has  submitted that there is enough evidence on record to  show that the appellants had knowingly facilitated and  abetted the said organised crime syndicate to continue  their unlawful activities and therefore, in the teeth of  rigours of Section 21(4) of MCOCA, the appellants cannot  be released on bail.  11.     At this juncture, it is neither necessary nor  desirable to weigh the evidence meticulously to return a  positive finding as to whether or not the appellants have  committed offences they have been charged with.  However, as the provisions of MCOCA have been invoked  in the instant cases, in addition to the considerations,  which normally weigh with the court in granting bail in  non-bailable offences, the limitations imposed in the  provisions contained in sub-section (4) of Section 21 of  MCOCA have to be borne in mind.  The said provision  came up for consideration before this Court recently in  Chenna Boyanna Krishna Yadav vs. State of  Maharashtra & Anr.   and its scope and purport was  explained thus:         "It is plain from a bare reading of  the non-obstante clause in the sub- section that the power to grant bail by the  High Court or Court of Sessions is not  only subject to the limitations imposed by  Section 439 of the Code but is also  subject to the limitations placed by  Section 21(4) of MCOCA.  Apart from the  grant of opportunity to the Public  Prosecutor, the other twin conditions are:  the satisfaction of the court that there are  reasonable grounds for believing that the  accused is not guilty of the alleged offence  and that he is not likely to commit any  offence while on bail.  The conditions are  cumulative and not alternative.  The  satisfaction contemplated regarding the  accused being not guilty has to be based  on reasonable grounds.  The expression  "reasonable grounds" means something  more than prima facie grounds.  It  contemplates substantial probable causes  for believing that the accused is not guilty  of the alleged offence.  The reasonable  belief contemplated in the provisions  requires existence of such facts and  circumstances as are sufficient in  themselves to justify satisfaction that the  accused is not guilty of the alleged  offence.  Thus, recording of findings  under the said provision is a sine qua non  for granting bail under MCOCA."

12.     Thus, in the light of what has been said above, what  needs to be considered is whether there is a reasonable  ground to believe that the appellants are not guilty of the  two offences, they have been charged with and further  that they are not likely to commit an offence under  MCOCA while on bail.   13.     Having considered the matter in the light of the  roles attributed to the appellants in the charge-sheet, we  are of the view that the allegations, briefly enumerated  above, may not per se be sufficient to bring home an

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offence falling within the ambit of Section 3(2) of MCOCA.   Therefore, bearing in mind the fact that maximum  punishment provided under Section 24 of MCOCA is  three years rigorous imprisonment and the appellants  have already been in judicial custody for over two years,  in our view it is a fit case for grant of bail to both the  appellants. 14.     Consequently, the appeals are allowed and the  order passed by the High Court is set aside.  It is directed  that the appellants shall be enlarged on bail on their  furnishing personal bonds in the sum of Rs.50,000/-  each with two sureties, each in the like amount to the  satisfaction of the Special Court, Pune. They shall also  remain bound by all the conditions as stipulated in  Section 438(2) of the Code of Criminal Procedure.  They  shall also surrender their passports, if any, before the  Special Court, Pune. Needless to add that the afore-noted  observations on the merits of the allegations against the  appellants are tentative, purely for the purpose of these  appeals and shall not be construed as expression of a  final opinion on any of the issues of fact or law, which  may arise for consideration during the course of trial.