Full Judgment Text
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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.