Full Judgment Text
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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.