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CASE NO.: Appeal (crl.)  1087 of 2007

PETITIONER: State of Maharashtra & Ors

RESPONDENT: Vashishtha Rambhau Andhale

DATE OF JUDGMENT: 17/08/2007

BENCH: CJI K.G. BALAKRISHNAN & P.K. BALASUBRAMANYAN

JUDGMENT: J U D G M E N T  (Arising out of SLP(Crl.) No.4394 of 2004)

P.K. BALASUBRAMANYAN, J.

                1.              Leave granted.

2.              This appeal by the prosecution challenges the  order granting bail to the respondent, Inspector of Police  attached to the Dharavi Crime Branch, Unit-5, Mumbai.   The respondent was arrested during the investigation of  the crime registered in the Bund Garden Police Station,  Pune relating to the organised crime that has come to be  known as the \023stamp scam\024.   The respondent was  accused No.55.  He was arrested on 18.10.2003 and  though the Special court declined his prayer for bail, in  appeal, the High Court granted bail.  It is that order of the  High Court that is challenged in this appeal.

3.              Learned counsel for the appellants submitted  that the Central Bureau of Investigation (for short the CBI)  had  taken over the investigation as directed by this Court  in March 2004, had conducted proper investigation and  had charge-sheeted various accused and a revised charge- sheet had been filed in July 2004.  It is submitted that  this Court had entrusted the investigation to the CBI on  finding that the Special Investigating Team constituted for  that purpose by the State of Maharashtra was not  investigating the crime having great social dimensions, in  a proper manner or with due sincerity.  He submitted that  the investigation conducted by the CBI clearly indicated  the involvement of the respondent in lending a helping  hand to Telgi to facilitate the commission of an organised  crime and the evidence, thus, far obtained by the CBI has  not been appreciated properly by the High Court keeping  in mind the circumstances under which the CBI came into  the picture and started an investigation on its own.   Counsel submitted that the High Court made an  erroneous approach to the materials gathered by the CBI  and has erred in discarding them on the basis that there  was some delay in recording the statements of the  witnesses, at least nine of whom had spoken of the  involvement of the respondent and the confessional  statement of accused No.8 Sajid, who confessed that he  had handed over Rs.15 lakhs to the respondent by way of

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illegal gratification and as a quid pro quo for the  respondent releasing those connected with a stamp  offence.

4.              Learned counsel for the appellants particularly  pointed out that the respondent had failed to arrest Telgi  when Telgi had appeared in the office of the Crime Branch  Dharavi, Unit-5, Mumbai.   Similarly, the respondent had  set free the various persons taken into custody when huge  quantity of fake stamps were recovered in a raid and this  was done by the respondent in the light of the illegal  gratification received by him from Sajid.  The High Court  erred completely in not giving due weight to those  witnesses who spoke of the failure of the respondent to  arrest Telgi even when he was wanted and when he  appeared at the Police Station  and presented himself  before the respondent and also the confession of Sajid  supported by other relevant materials that a sum of Rs.15  lakhs had been paid to the respondent for inducing him to  set free a number of persons involved in the stamp scam,  taken into custody while raiding a premises in Andheri  and recovering a huge cache of fake stamps.

5.              Counsel submitted that the High Court has also  not kept in mind the nature of the offence, its impact on  society, the position held by the respondent, his duty as a  protector of the law and the rights of the citizens and the  nature of his conduct.  It was a clear case where the  offences under Section 3, 4 and 24 of the Maharasthra  Control of Organised Crime Act, 1999 (for short the  MCOCA) had been made out.  The High Court ought not to  have interfered with the order refusing to grant bail.

6.      Learned counsel for the respondent, on the other  hand submitted that the respondent was not holding such  a responsible post as to be able to assist Telgi and his  associates in the manner suggested by the prosecution  and that the High Court has not erred in granting bail to  him.  Counsel submitted that the confession of Sajid had  to be tested at the trial and the High Court was not  incorrect in not relying on it at this stage to refuse bail to  the respondent.  Counsel also submitted that after all it  was an order granting bail to an accused, no doubt in a  serious crime and that normally this Court in appeal  would not interfere with such an order.  Counsel  therefore, submitted that no interference was warranted in  this appeal.

7.              We find that there is some merit in the  contention of the learned counsel for the appellants that  the High Court was not correct in thinking that all the  evidence gathered by the CBI must be treated as evidence  gathered belatedly. The High Court obviously forgot that  the CBI was directed to take up the investigation by this  Court only in March 2004 and what this Court was  intending, was a thorough investigation by the CBI,  especially in the nature of unsatisfactory performance of  the State Police and the number of police personnel and  higher ups allegedly involved in the organised crime.  To  that extent we cannot approve the approach or attitude of  the High Court in dealing with the appeal against the  refusal to grant bail to the respondent.  Same would be  the position regarding the confessional statement of Sajid  and the High Court was not correct in trying to discard it  on the basis that it was belated.

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8.              Any studied inaction or aid extended to the  members of an organised crime, the members of an  organised gang involved in such crime might also amount  to an offence under MCOCA and this fact cannot be  forgotten when dealing with the case of a police officer  allegedly involved in the crime.  But then that is a matter  to be decided by the trial court at the time of trial of the  offence.  For the present we need only indicate that we  cannot fully endorse the approach made by the High  Court in granting bail to the respondent.

9.              At the same time, we do not think it proper in  this appeal to go into the various aspects urged at great  length by counsel appearing in the case.  We think that  the matters must be left to the trial court for decision after  taking proper evidence and it would be premature to  pronounce on the various aspects urged before us.   Though we are not in a position either to fully endorse or  to fully approve the views expressed by the High Court in  the order under challenge, we do not think that it is  necessary, at this stage, to interfere with that order and  set aside the bail granted to the respondent.  We,  therefore, decline to interfere with the decision of the High  Court though we do find merit in some of the aspects  urged by the counsel for the appellant.

10.             In view of what is stated above, the appeal is  dismissed leaving all the questions open to be decided by  the trial court.