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CASE NO.: Appeal (crl.)  977 of 2006

PETITIONER: Mohammad Chand Mulani

RESPONDENT: Union of India & Ors.

DATE OF JUDGMENT: 18/09/2006

BENCH: K G Balakrishnan, G P Mathur & R V Raveendran

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No.1575/2006)

RAVEENDRAN, J.

       Leave granted.         The order dated 19th/20th October, 2005 passed by the  Bombay High Court rejecting his application for bail under  section 439 of the Code of Criminal Procedure (for short ’the  Code’) is challenged by the Appellant in this appeal.  

2.      The appellant was working as an Assistant Commissioner  of Police (Crime-I), Pune, during the year 2002. An FIR  relating to an offence of possessing counterfeit stamps  punishable under sections 120-B, 255, 258, 259, 260, 263-A,  420, 471, 472, 474 read with section 34 IPC, was registered  against certain persons, on 7.6.2002 as C.R. No.135/2002 at  Bund Garden Police Station. The initial investigation was  conducted by Mr. Prakash Deshmukh, Senior Police Inspector,  Bund Garden Police Station, under the guidance of Additional  Commissioner of Police, Pune (Shri S.M. Mushrif), Dy.  Commissioner of Police (Zone-II) and the Asstt. Commissioner  of Police, Crime I (appellant). A charge-sheet was filed on  3.9.2002 followed by a supplementary charge-sheet filed on  25.11.2002.  

3.      The State Government created a Special Investigating  Team (SIT for short) for investigation into the said bogus stamp  case, headed by Mr. S K Jaiswal, DIG on 2.11.2002. A  supplementary charge-sheet was filed on 25.11.2002. On  22.12.2002, Sri S.K. Jaiswal, DIG, granted approval to apply  section 3(i)(ii), 3(2), 3(4), 3(5) and 4 of Maharashtra Control of  Organised Crime Act, 1999 (’MCOC Act’ for short) in regard  to C.R. No.135/2002 of Bund Garden Police Station. SIT  submitted one more original charge-sheet in C.R. No. 135/2002  before the Special Judge, Pune, under MCOC Act, numbered as  Special Case No.2/2003 on 27.3.2003. Supplementary charge- sheets were by SIT filed on 15.9.2003 and 3.2.2004. This Court  by order dated 15.3.2004 transferred the investigation of this  case along with several other cases  to the Central Bureau of  Investigation (CBI for short). CBI filed a supplementary  charge-sheet on 27.5.2005.

4.     The appellant was associated with the investigation of  that case, from the date of registration of FIR (7.6.2002) till the  first charge-sheet was filed (on 3.9.2002). The appellant retired  on 31.8.2003. As the investigation by the SIT disclosed  involvement of the appellant in the said bogus stamp case,  he

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was arrested on 4.12.2003. He was arraigned as accused No.61  in the supplementary charge-sheet filed on 3.2.2004, and was  charged under sections 120-B, 216, 218, 221 IPC r/w sections  3(2), 3(5) and 24 of MCOC Act and section 7 and 13(1)(d) of  the Prevention of Corruption Act.

5.      According to the prosecution, the principal accused  Abdul Karim Telgi was involved in printing and distributing  counterfeit stamps/stamp papers on a very large scale. During  investigation, stamps/stamp papers worth Rs.2189 crores were  seized. The allegation against the appellant was that during the  period when the appellant was supervising the investigation, he  came into contact with Telgi through his counsel Abdul Rashid  Kulkarni (accused No.49); that the appellant, with a view to  help the perpetrators of the organized crime, tried to subvert the  investigation; that he was instrumental in ensuring that some  persons involved in the crime, were not shown as accused in the  first charge-sheet filed on 3.9.2002; that the appellant received  a sum of Rs.15 lakhs from accused No.49, as part payment  towards a sum of Rs. 3 crores agreed as illegal gratification to  arrange for the deletion of Telgi’s relations (wife, daughter and  brother) from the charge-sheet and to ensure they were not  arrested; and that he was thus a direct recipient of funds from  the organized crime syndicate of Telgi for facilitating their  unlawful activities.  

6.      The appellant’s application for bail was rejected by the  Special Judge, Pune, on 1.7.2004. His subsequent application  for bail filed before the Bombay High Court under section 439  was rejected by the High Court by the impugned order dated  19th/20th October, 2005.  

7.      The High Court has cited two circumstances to conclude  that the appellant was involved in facilitating organized crime  and receiving illegal gratification therefor. The said  circumstances are :  

i)      During the period when the appellant was associated with the  investigation from June, 2002 to 3.9.2002, Counterfeit Stamps  worth Rs.1500 crores were recovered on 14.6.2002  from a  godown at Bhiwandi taken on rent by one Sirajuddin Kamalsab  Nasipudi, an associate of Telgi. The said Nasipudi was not shown  as an accused in the first chargesheet filed on 3.9.2002, at the  instance of the appellant, though the appellant was aware of the  involvement of Nasipudi and was, in fact, on the look out for him.  

ii)     The statements of witnesses and confessions of some accused  show that the appellant had received a sum of Rs.15 lakhs as  illegal gratification from Telgi through Abdul Rashid Kulkarni, for  not arresting Telgi’s wife, daughter and brother and deleting their  names from the charge-sheet.

8.      The records disclose that Mr. Mushrif (Addl.  Commissioner) was in charge of the investigation at the  relevant time and he had divided the investigation and  connected work among four teams namely i) appraisal of seized  papers/documents; ii)  examination of computer records and  decoding; iii) investigation; and iv) field work. Appellant was  placed in the field work team and was not directly involved in  investigation. The appellant was not a part of the team that  raided the Bhiwandi godown rented by S. K. Nasipudi. It also  appears that the decision as to who should be made accused   primarily rested with Dy. Commissioner of Police (Zone II)  subject to  the final decision of the Addl. Commissioner. The  Senior Police Prosecutor was also being consulted in the matter.

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Therefore, apparently, it was not for the appellant to take any  decision as to whether S. K. Nasipudi should have been shown  as an absconding accused in the first charge-sheet, though it  was possible that he gave his suggestion in the matter. The  learned counsel for the appellant submitted that one possible  reason for not including the name of S. K. Nasipudi in the first  charge-sheet, was that his full name and address was not  available at the time when the first chargesheet was filed and  they were still looking for him. Be that as it may. 9.      In regard to the allegation that the appellant had received  a sum of Rs.15 lakhs from Telgi through his counsel Mr. A.R.  Kulkarni, for deleting/not arresting the family members of  Telgi, the material held against the appellant are :  

i)      The statement of Mr. Mushrif dated 22.11.2002 wherein he had   stated that Telgi had told him that Mulani and the Police Inspector  Deshmukh had threatened that unless Rs.3 crores was paid to them,  they would arrest his wife, daughter and sick brother; that as he  (Telgi) was in custody, negotiations were going on through his  counsel A. R. Kulkarni, though whom the demand was made; that  Rs.15 lakhs had already been paid; and that they (Mulani and  Deshmukh) had assured that after receipt of the balance, the names  of the said  family members of Telgi will be deleted from the  charge-sheet.  

ii)     The statement of Vijay Gunjal recorded on 11.9.2003, wherein he  had stated that he had accompanied advocate A.R. Kulkarni in  August, 2002 when he went to meet the appellant; and that A.R.  Kulkarni subsequently told him that he had given Rs.15 lakhs to  the appellant.  

iii)    The statement of R.I. Kamble, Police Naik,  recorded on 8.8.2003  wherein he had stated that Vijay Gunjal had told him that in spite  of giving Rs.15 lakhs to Mulani (appellant), the job of deleting the  names of four  accused had not been done.  

But the High Court has recorded a finding that "It cannot be  said that it was the applicant (Mulani) who was insisting that  the wife, daughter and brother of Telgi shall be kept out of the  charge sheet as the Apex Court (in 2005 (5) SCC 294)  has  already noted that it was Shri Mushriff who was the superior  officer of the applicant who was desirous of keeping the said  three persons out of the charge sheet." Learned counsel for the  appellant also pointed out the significant delay in recording the  statement of Vijay Gunjal, though he had been attending the  office of the SIT regularly. He also pointed out to the  discrepancies in the statements of  Gunjal and Kamble.  Be that  as it may.

10.     One other circumstance relied on by the prosecution  is  the statement of Sri Adhip Chaudhary, Addl. Chief Secretary,  Karnataka. He stated that there was a meeting on 24.7.2002 of  the senior officers of States of Karnataka and Maharashtra; and  just before the meeting, Sri Sreekumar, Addl. DG, had warned  him to be a little cautious about one of the members of the  Maharashtra team, namely Mulani (Appellant)  as the  Karnataka police had received some information about his  involvement while intercepting messages.           11.     The learned counsel for Respondents submitted that the  activities  of Appellant would fall under section 3(2) of MCOC  Act, which is punishable with imprisonment which may extend  to life. He also drew our attention to the observation of the High  Court that prima facie section 3(2) of MCOC Act was attracted.

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The learned counsel for appellant contested this position.  Relying on the decision of this Court in Ranjitsing  Brahmajeetsing Sharma v. State of Maharashtra [2005 (5) SCC  294], he submitted that even if all allegations against the  appellant were accepted, his case would fall only under Section  24 and not Section 3(2) of the MCOC Act and the maximum  sentence under Section 24 is three years and the appellant has  already been in prison for 2 years and 9 months and therefore  deserved to be released on bail. As we are concerned with only  grant of bail, it is not necessary at this stage to examine or  decide upon the relative scope of sections 3(2) and 24 of the  MCOC Act as to in what circumstances, the action of a public  servant will be considered as "rendering 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  abstains from taking lawful measures under  the Act", falling under section 24, or considered as "conspiring  or attempting to commit or advocating, abetting or knowingly  facilitating the commission of an organized crime or any act  preparatory to organized crime" falling under section 3(2) of  MCOC Act.  

12.     The  appellant has retired from service in the year 2003.  He has been in jail for more than two years and nine months.  The trial is likely to take several years as there are more than  800 witnesses to be examined. In the circumstances, and having  regard to the nature of involvement alleged and the role  attributed to the appellant in the charge-sheet, we are  of the  view that this is a fit case for grant of bail to the appellant.

13.     We accordingly allow this appeal, set aside the order of  the High Court and direct the Special Court, Pune, to enlarge  the appellant on bail on his furnishing security to its satisfaction  in a sum of Rs. two lakhs with two solvent sureties for  like  sum, subject to the following conditions :  

i)      The appellant shall fulfil the conditions enumerated in  clauses (i) to (iii) of Section 438(2) Cr.P.C.  ii)     He shall report before the Investigating Officer every  alternate Saturday between 10 a.m. and 12 noon.  iii)    He shall surrender his passport, if any, before the Special  Court.

14.     Nothing stated above shall be construed as an expression  of an opinion with regard to merits. The entire consideration is  with limited reference to grant of bail. It is needless to say that  the trial court while deciding the matter on merits, will not be  influenced by anything stated by this Court while disposing of  applications for bail.