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CASE NO.: Appeal (crl.)  1286 of 2006

PETITIONER: CHENNA BOYANNA KRISHNA YADAV

RESPONDENT: STATE OF MAHARASHTRA & ANR.

DATE OF JUDGMENT: 08/12/2006

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

JUDGMENT: J U D G M E N T (Arising out of S.L.P.(Criminal) No. 1358 of 2006)

D.K. JAIN, J.:                 Leave granted. 2.      The challenge in this appeal is to Order dated  19.9.2005 passed by a learned Single Judge of the High  Court of Judicature at Bombay, rejecting the second bail  application preferred by the appellant under Section 439  of the Code of Criminal Procedure, 1973 (for short ’the  Code’). 3.      The appellant is an Advocate by profession.  In the  year 1994 he was elected as a Member of the Legislative  Assembly of the State of Andhra Pradesh.  Till the year  1998 he was a Minister in the Andhra Pradesh  Government.  In the year 1999 he was again elected as a  Member of the Legislative Assembly.  Between the period  from October, 1999 to November, 2001 he was again a  Minister holding various portfolios. 4.      One Abdul Karim Ladsab Telgi (hereinafter referred  to as ’Telgi’) was arrested and proceeded against for  alleged commission of offences of printing and  distributing counterfeit stamps/papers on a very large  scale.  During investigations, stamps/papers worth  Rs.2,128 crores were seized.  A second search on  11.1.2003 at one of the premises occupied by Telgi,  conducted by the Special Investigating Team, resulted in  the recovery of a micro audio cassette.  The said cassette  contained recording of alleged conversation between the  appellant and Telgi.  The date mentioned on the said  cassette is 16.1.1998.  On an analysis of the voice  samples of the appellant, the Forensic Laboratory opined  that the voice recorded in the said cassette was that of  the appellant.   5.      The case of the prosecution, based on the cassette,  is that in the year 1998 the appellant was involved in the  kidnapping of two employees of Telgi, namely, Abdul  Wahid and Sadashiva. He demanded a ransom of Rs.2  crores from Telgi for their release.  A deal materialised  and as a result thereof the appellant came closer to Telgi.   The friendship between the appellant and Telgi  blossomed and as a result wherefor, the appellant  rendered active support and help to Telgi in his alleged  unlawful activities of Organised Crime Syndicate in the  State of Andhra Pradesh relating to printing of counterfeit  stamps and other documents and sale thereof.  The  allegation, in short, is that the appellant received huge  amounts of money from time to time from the Organised  Crime Syndicate, headed by Telgi, and in return, being

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an influential political person, provided a protective  umbrella to the Organised Crime Syndicate in carrying  out unlawful activities in the State of Andhra Pradesh,  and thus, knowingly facilitated and abetted the  commission of an Organised Crime by the Syndicate of  Telgi.  6.      Investigations were initiated by a Special  Investigation Team of the Mumbai Police but later on  investigation of the case, along with other 47 cases, was  transferred by this Court to the Central Bureau of  Investigation.  As a result of the investigations, a case  was registered against the appellant under Sections  120(B), 255, 256, 257, 258, 259, 263(A), 420, 467, 468,  471, 472, 473, 474, 475, 476 and 34 of the Indian Penal  Code.  A case was also registered under the provisions of  Section 63(a) and 63(b) of the Bombay Stamps Act, 1958.   Subsequently, Sections 3 and 24 of the Maharashtra  Control of Organized Crimes Act, 1999 (hereinafter  referred to as ’MCOCA’) were also invoked.  Against some  of the accused, including the appellant, commission of  offences under Sections 7 and 13(i)(d) of the Prevention of  Corruption Act, 1988 were also alleged. 7.      The appellant was arrested on 6.9.2003 and was  remanded to police custody.  Since 26.9.2003 he is in  judicial custody.  The charge-sheet came to be filed on  29.12.2003.  Subsequently some more charge-sheets  were filed and finally a supplementary charge-sheet was  filed by the CBI on 26.7.2005.  All these charge-sheets  were consolidated into one. 8.      Appellant’s first application for bail was rejected by  the High Court on 6.8.2004.  As noted above his second  bail application has been rejected by the impugned order.   Taking into consideration statements of some of the  witnesses and the said tape recorded conversation  between the appellant and Telgi, the learned Judge has  come to the conclusion that, prima facie, there is material  on record to show that the appellant had knowledge  about the continuing organised crime of printing and  selling of fake stamps; and he provided protection to  continuing activities of sale of the fake stamps with the  knowledge or having reason to believe that he was  engaged in assisting Organised Crime Syndicate of Telgi.  Thus, the learned Judge has come to the conclusion that  the appellant abetted the commission of organised  crimes. 9.      Mr. Umesh U. Lalit, learned senior counsel  appearing for the appellant, has submitted that on the  basis of the material on record, including the statements  of the four witnesses, referred to in the impugned order,  no inference can be drawn that the appellant was a party  to conspiracy or had abetted commission or facilitation of  the crime with which Telgi or other co-accused were  associated.  It is urged that the allegation of demand of  ransom of Rs.2 crores by the appellant from Telgi has no  nexus with the principal offence alleged under MCOCA.   Drawing support from the decision of this Court in  Ranjitsing Brahmajeetsing Sharma vs. State of  Maharashtra & Anr. , wherein various provisions of  MCOCA, particularly the definition of the word "abet"  contained in Section 2(1)(a) have been considered,  learned counsel has contended that even if prosecution  version is taken on its face value, the appellant’s alleged  association with Telgi would not bring his case within the  ambit of Section 3(2) and at best only Section 24 of  MCOCA  may be attracted.  It is urged that the maximum

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punishment provided under Section 24 of MCOCA being  three years’ rigorous imprisonment and the appellant  having already been in judicial custody for more than  three years, he is entitled to be enlarged on bail.  Learned  counsel has also pointed out that at least three co- accused, namely, R.S. Sharma, Mohammad Chand  Mulani and Babanrao Tukaram Ranjane, against whom  much more evidence is available, have already been  enlarged on bail by this Court. 10.     Mr. Sushil Kumar, learned senior counsel appearing  for the respondents, while opposing the bail to the  appellant, has submitted that there is enough evidence  on record to show that the appellant had abetted the said  organised activity.  Learned counsel has contended that  the allegation regarding kidnapping of two men belonging  to Telgi and demanding ransom cannot be termed as         anti-thesis to the prosecution case and in fact the said  act on the part of the appellant was the beginning of his  association with Telgi which ultimately blossomed into  close relationship with Telgi, which led the appellant to  actively support the Organised Crime Syndicate of Telgi  and in return he received large amounts from him. 11.     The considerations which normally weigh with the  court in granting bail in non-bailable offences have been  explained by this Court in State vs. Capt. Jagjit Singh   and Gurcharan Singh vs. State (Delhi Admn.)  and  recently in Jayendra Saraswathi Swamigal vs. State  of Tamil Nadu , which are: "\005the nature and seriousness of the offence;  the character of the evidence; circumstances  which are peculiar to the accused; a  reasonable possibility of the presence of the  accused not being secured at the trial;  reasonable apprehension of witnesses being  tampered with; the larger interest of the public  or the State and other similar factors which  may be relevant in the facts and  circumstances of the case."

12.     However, as the provisions of MCOCA have been  invoked in the instant case in addition to the afore- mentioned broad principles, the limitations imposed in  the provisions contained in sub-section (4) of Section 21  of MCOCA cannot be lost sight of while dealing with the  application for grant of bail.  The relevant provision reads  as under:         "(1)    \005    \005    \005          (2)    \005    \005    \005  (3)    \005    \005    \005   (4)   Notwithstanding anything contained in  the Code, no person accused of an  offence punishable under this Act shall, if  in custody, be released on bail or on his  own bond, unless \026 (a)     the Public Prosecutor has been given  an opportunity to oppose the  application of such release; and (b)     where the Public Prosecutor opposes  the application, the Court is satisfied  that there are reasonable grounds for  believing that he is not guilty of such  offence and that he is not likely to  commit any offence while on bail.   (5)   \005    \005    \005   (6)   \005    \005    \005

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 (7)   \005    \005    \005"

13.     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. 14.     In R.B. Sharma’s case (supra), construing the said  provision somewhat liberally, S.B. Sinha, J. speaking for  a three-Judge Bench observed thus:- "43. Section 21(4) of MCOCA does not make  any distinction between an offence which  entails punishment of life imprisonment and  an imprisonment for a year or two.  It does not  provide that even in case a person remains  behind the bars for a period exceeding three  years, although his involvement may be in  terms of Section 24 of the Act, the court is  prohibited to enlarge him on bail.  Each case,  therefore, must be considered on its own facts.   The question as to whether he is involved in  the commission of organised crime or abetment  thereof must be judged objectively\005" "44. The wording of Section 21(4), in our  opinion, does not lead to the conclusion that  the court must arrive at a positive finding that  the applicant for bail has not committed an  offence under the Act.  If such a construction is  placed, the court intending to grant bail must  arrive at a finding that the applicant has not  committed such an offence.  In such an event,  it will be impossible for the prosecution to  obtain a judgment of conviction of the  applicant.  Such cannot be the intention of the  legislature.  Section 21(4) of MCOCA, therefore,  must be construed reasonably.  It must be so  construed that the court is able to maintain a  delicate balance between a judgment of  acquittal and conviction and an order granting  bail much before commencement of trial.   Similarly, the court will be required to record a  finding as to the possibility of his committing a  crime after grant of bail.  However, such an  offence in future must be an offence under the  Act and not any other offence.  Since it is  difficult to predict the future conduct of an

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accused, the court must necessarily consider  this aspect of the matter having regard to the  antecedents of the accused, his propensities  and the nature and manner in which he is  alleged to have committed the offence." "46. The duty of the court at this stage is not to  weigh the evidence meticulously but to arrive  at a finding on the basis of broad probabilities.   However, while dealing with a special statute  like MCOCA having regard to the provisions  contained in sub-section (4) of Section 21 of  the Act, the court may have to probe into the  matter deeper so as to enable it to arrive at a  finding that the materials collected against the  accused during the investigation may not  justify a judgment of conviction.  The findings  recorded by the court while granting or  refusing bail undoubtedly would be tentative in  nature, which may not have any bearing on the  merit of the case and the trial court would,  thus, be free to decide the case on the basis of  evidence adduced at the trial, without in any  manner being prejudiced thereby."

15.     Bearing in mind the above broad principles, we may  now consider the merits of the appeal. 16.     At this stage, it is neither necessary nor desirable to  weigh the evidence meticulously to arrive at a positive  finding as to whether or not the appellant has committed  offences under Section 3(2) or Section 24 of MCOCA.   What is to be seen is whether there is a reasonable  ground for believing that the appellant is not guilty of the  two offences, he has been charged with, and further that  he is not likely to commit an offence under MCOCA while  on bail.  As noted above, the circumstance which has  weighed with the High Court to conclude that the  appellant had the knowledge of Organised Crime  Syndicate of Telgi, printing fake stamps etc. and these  were being sold under the protection of the appellant and  hence he had abetted an organised crime, is the alleged  conversation between him and Telgi in January, 1998,  after the kidnapping incident.  In our view, the alleged  conversation may show appellant’s acquaintance with  Telgi but may not per se be sufficient to prove appellant’s  direct role with the commission of an organized crime by  Telgi, to bring home an offence of abetment in the  commission of organized crime falling within the ambit of  Section 3(2) of MCOCA and/or that he had rendered any  help or support in the commission of an organized crime  whether before or after the commission of such offence by  a member of an organized crime syndicate or had  abstained from taking lawful measures under MCOCA,  thus, falling within the purview of  Section 24 of MCOCA.   It is true that when the gravity of the offence alleged is  severe, mere period of incarceration or the fact that the  trial is not likely to be concluded in the near future either  by itself or conjointly may not entitle the accused to be  enlarged on bail.  Nevertheless, both these factors may  also be taken into consideration while deciding the  question of grant of bail. 17.     Having regard to the afore-mentioned  circumstances, particularly the role attributed to the  appellant in the charge-sheet, we are of the view that it is  a fit case for grant of bail to the appellant. 18.     Consequently, the appeal is allowed and the order

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passed by the High Court is set aside.  It is directed that  the appellant shall be enlarged on bail on his furnishing  a personal bond in the sum of Rs.5 lakhs with two  sureties, each in the like amount to the satisfaction of the  Special Court, Pune.  He shall also remain bound by all  the conditions as stipulated in Section 438(2) of the  Code.  The appellant shall also surrender his passport, if  any, before the Special Court, Pune. 19.     It goes without saying that aforenoted observations  on the merits of the material collected by the prosecution  are tentative, only for the purpose of this appeal, and  shall not be taken as an expression of final opinion on  the merits of the case.