SUPREME COURT OF INDIA
Mohammad Chand Mulani
Vs
Union of India and Others
Appeal (Crl.) 977 of 2006 (Arising Out of Slp (Crl.) No.1575/2006)
(K. G. Balakrishnan, G. P. Mathur, JJ)
18.09.2006
R V 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 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. 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
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. The learned counsel for appellant contested this position. Relying
on the decision of this Court in Ranjitsing Brahmajeetsing Sharma v. State of
Maharashtra , 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.