Dattatray Krishnaji Ghule Vs. State of Maharashtra & Anr.  Insc 114 (9
CJI K.G. BALAKRISHNAN & D.K. JAIN
(Arising out of S.L.P.(Criminal) No. 4600 of 2006) With CRIMINAL APPEAL NO.
184 OF 2007 (Arising out of S.L.P.(Criminal) No. 4603 of 2006) HITENDRA MANOHAR
VICHARE - APPELLANT VERSUS STATE OF MAHARASHTRA & ANR.
- D.K. JAIN, J.:
The challenge in these two appeals is
to a common Order dated 3rd March, 2006 passed by a learned Single Judge of the
High Court of Judicature at Bombay, rejecting the bail applications preferred by
The appellants having been arrested in connection with the same case
(C.R. No. 131 of 2001), registered at Thane Nagar Police Station for the
offences punishable under Sections 192, 217, 218, 263(a) of the Indian Penal
Code read with Sections 3(1)(ii), 3(2), 3(3), 3(4) and Section 34 of the Maharashra
Control of Organised Crime Act, 1999 (hereinafter referred to as
"MCOCA"), common questions arise for consideration and therefore,
both the appeals are being disposed by this judgment. At the relevant time both
the appellants were police officers, in- charge of investigations in the
Both of them were arrested on 8th October, 2004.
The case of the prosecution against
the appellants, in brief, is as under:
On 16th May, 2005 appellant P.S.I Hitendra Manohar Vichare (hereinafter
referred to as Vichare) arrested one Sandeep Kandar and fake stamps worth Rs.51,000/-
were seized. On the same day C.R. No. 131 of 2001 was registered. Vichare
investigated the case from 16th May, 2001 to 22nd May, 2001. Appellant P.I.
Dattatray Krishnaji Ghule (hereinafter referred to as Ghule) took over
investigations in the said case on 22nd May, 2001. On 23rd May, 2001 one Maruti Car was intercepted and a huge quantity of fake stamps was seized from the
occupants of the car. Ghule was in- charge of the investigations from 22nd May, 2001 to 26th December, 2001. As a result of investigations, three charge-sheets
were filed against several persons, including one Shabbir Sheikh and Abdul Karim
Ladsab Telgi, head of an organised crime syndicate, engaged in unlawful
activities relating to printing of counterfeit stamps and other documents and
sale thereof. However, subsequently, under the orders of this Court,
investigations in the case were transferred to the C.B.I.
and the provisions of MCOCA were invoked. As a result of fresh
investigations by the C.B.I. cases were registered against the appellants under
the aforementioned provisions and they were arrested on 8th October, 2004.
The main allegations against the appellants in the charge-sheet filed by
the C.B.I., inter-alia, are: despite having come to know about the illegal
activities of said Shabbir Sheikh, Vichare did not arrest him and conspired
with Ghule to aid and abet the organised crime syndicate headed by Telgi to
carry on their illegal activities; he neither carried out search at the offices
of Telgi nor did he seal his property; Ghule took over investigation with the
intention to extract pecuniary benefits for himself; both of them did not seal
the premises belonging to Telgi with an ulterior motive to aid and abet the organised
crime syndicate; they deliberately framed two persons of the rival gang on the
instructions of said Shabbir; they showed false recovery from one Sandeep Kandar;
recorded statement in order to implicate him; registered a false complaint
131/2001) against him and also destroyed/fabricated evidence by entering
into criminal conspiracy with the members of Telgi gang by misusing their
Taking these circumstances into
consideration, as noted above, the learned Single Judge has rejected application
for bail preferred by the appellants.
We have heard Mr. T.L.V. Iyer and Mr. Arvind Sawant, learned senior
counsel respectively on behalf of Ghule and Vichare and Mr. Sushil Kumar,
learned senior counsel on behalf of the C.B.I.
Learned senior counsel for the appellants have submitted that no
inference can be drawn on the basis of the material on record, referred to in
the impugned order that the appellants had conspired or abetted commission or
facilitation of the crime with which Telgi or other co- accused were
associated. It is asserted that in the charge-sheet filed against the
appellants there are no allegations that they had indulged in "continuing
unlawful activities" within the meaning of Section 2(1)(d) of MCOCA or
have committed "organised crime" within the meaning of Section
2(1)(e) of MCOCA. It is urged that there is not an iota of evidence against the
appellants to hold that they belong to an "organised crime syndicate"
within the meaning of Section 2(1)(f) of MCOCA. It is thus, pleaded that
Section 3 of MCOCA cannot be invoked against them. In the alternative, it is
submitted that on account of the alleged acts of omission and/or commission, at
the highest only Section 24 of MCOCA may be attracted, for which offence the
maximum punishment provided is three years' rigorous imprisonment and the
appellants having already spent more than two years in judicial custody they
are entitled to be enlarged on bail. It is also pointed out that some of the
similarly situated accused have already been granted bail by this Court.
Learned senior counsel appearing for the C.B.I., while opposing the
grant of bail to the appellants, has submitted that there is enough evidence on
record to show that the appellants had knowingly facilitated and abetted the
said organised crime syndicate to continue their unlawful activities and therefore,
in the teeth of rigours of Section 21(4) of MCOCA, the appellants cannot be
released on bail.
At this juncture, it is neither
necessary nor desirable to weigh the evidence meticulously to return a positive
finding as to whether or not the appellants have committed offences they have
been charged with.
However, as the provisions of MCOCA have been invoked in the instant cases,
in addition to the considerations, which normally weigh with the court in
granting bail in non-bailable offences, the limitations imposed in the
provisions contained in sub-section (4) of Section 21 of MCOCA have to be borne
in mind. The said provision came up for consideration before this Court
recently in Chenna Boyanna Krishna Yadav vs. State of Maharashtra & Anr. and
its scope and purport was explained thus:
"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
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."
Thus, in the light of what has been said above, what needs to be
considered is whether there is a reasonable ground to believe that the
appellants are not guilty of the two offences, they have been charged with and
further that they are not likely to commit an offence under MCOCA while on
Having considered the matter in the light of the roles attributed to the
appellants in the charge-sheet, we are of the view that the allegations,
briefly enumerated above, may not per se be sufficient to bring home an offence
falling within the ambit of Section 3(2) of MCOCA.
Therefore, bearing in mind the fact that maximum punishment provided under
Section 24 of MCOCA is three years rigorous imprisonment and the appellants
have already been in judicial custody for over two years, in our view it is a
fit case for grant of bail to both the appellants.
Consequently, the appeals are allowed and the order passed by the High
Court is set aside. It is directed that the appellants shall be enlarged on
bail on their furnishing personal bonds in the sum of Rs.50,000/- each with two
sureties, each in the like amount to the satisfaction of the Special Court, Pune.
They shall also remain bound by all the conditions as stipulated in Section
438(2) of the Code of Criminal Procedure. They shall also surrender their
passports, if any, before the Special Court, Pune. Needless to add that the
afore-noted observations on the merits of the allegations against the
appellants are tentative, purely for the purpose of these appeals and shall not
be construed as expression of a final opinion on any of the issues of fact or
law, which may arise for consideration during the course of trial.