Holding

The Supreme Court held that the allegations do not per se constitute an offence under Section 3(2) of MCOCA and, considering the restrictions of Section 21(4), bail was appropriate.

Summary

The appellants, two police officers, were accused of colluding with a counterfeit stamp syndicate and of fabricating false cases against rival gang members. After the Supreme Court ordered the investigation to be transferred to the CBI, the officers were charged under the Maharashtra Control of Organized Crime Act (MCOCA) and arrested. Their bail applications were rejected by the High Court, prompting appeals to the Supreme Court. The Court examined the bail provisions of MCOCA, particularly the restrictions under Section 21(4), and assessed whether the allegations amounted to an offence under Section 3(2) of MCOCA. Finding that the allegations did not per se constitute such an offence and noting that the maximum punishment under Section 24 is three years, while the officers had already spent over two years in custody, the Court held that bail was appropriate. Consequently, the appeals were allowed, the High Court order set aside, and bail granted on conditions.

Issues considered

Whether bail can be granted to accused under MCOCA in view of the limitations imposed by Section 21(4).
Whether the allegations against the police officers satisfy the criteria of an offence under Section 3(2) of MCOCA.
Whether there are reasonable grounds to believe the accused are not guilty and are unlikely to commit further offences while on bail.

Legislation cited

Code of Criminal Procedure, 1973s. 438, s. 439
Maharashtra Control of Organized Crime Act, 1999s. 21, s. 24, s. 3, s. 34

Subjects

bailMCOCAorganized crimepolice misconductcounterfeit stampsSection 21(4)Section 3(2)Section 24criminal procedureSupreme Court

Judgment

A DA TIATRAY KRISHNAJI GHULE
v.
STATE OF MAHARASHTRA AND ORS.

FEBRUARY 9, 2007

B [K.G. BALAKRISHNAN, CJ. AND D.K. JAIN, J.]

Maharashtra Control of Organized Crime Act, 1999; ss. 3, 21, 24 and
34/Code of Criminal Procedure, 197i ss. 438 and 439:

c Organized crime-Gang of criminals-Printing of counterfeit stamp
and selling thereof-Accused police officers allegedly entering into criminal
compiracy with head of a gang-Arrested member of rival gang-Fabricated
a false case-Supreme Court directing CBI to investigate--Arrest ofappellant
police officers under provisions of MCOCA-Grant of bail-Conditions-
D Held: Since provisions of MCOCA invoked, in addition to other
considerations, limitation imposed in terms of s. 21 (4) have to be borne in
mind by the Court while granting bail-Allegation leveled against accused
)
police officers may not per se be sufficient to bring home an offence falling
under s.3(2) of MCOCA-Hence, it is a fit case to grant bail to both the
accused police officers.
E
Appellants were police officers at the relevant time. They allegedly
foisted a false criminal case against some persons in collusion with criminals
engaged in unlawful activities relating to printing of counterfeit stamps and
other documents and sale thereof. After investigations, three charge-sheets
were filed and ultimately when the matter came up before this Court, the Court
F direc:ted that the investigations in the case be transferred to the C.B.I. As a
result of fresh inve~tigations by the C.B.I. cases were also registered against
the appellants-police officers allegedly on the ground that despite having come
to know about the illegal activities of the criminals appellants conspired with
them to aid and abet the organized crime syndicate headed by one of them to
G carry on their illegal activities. They neither arrested th1!m nor carried out
search at the offices of criminals nor did seal his property with the intention
to extract pecuniary benefits. They deliberately framed two persons of the rival
gang and showed false recovery from one of them and also destroyed/fabricated
evidence by entering into criminal conspiracy with the members of the gang

H 384
DA IT;\TRAY KRISHNA.II GHULh. ST ATE OF MAHARASHTRA 385
": by misusing their official position. Appellants filed bail application, which was A
rejected by Single Judge of the High Court. Hence the appeals.

Appellants contended that no inference can be drawn on the basis of the
material on record that they had conspired or abetted commission or
facilitation of the crime with which main accused or other co-accused were
associated; that in the charge-sheet filed against them there were no B
allegations that they had indulged in "continuing unlawful activities" within
the meaning of Section 2(l)(d) of MCOCA or have committed "organised
crime" within the meaning of Section 2(l)(e) ofMCOCA; that there is not an
iota of evidence against them to hold that they belong to an "organised crime
r · syndicate" within the meaning of Section 2(1)(1) of MCOCA; that Section 3 C
of MCOCA cannot be invoked against them; that on account of the alleged
acts of omission and/or commission, at the most only Section 24 of MCOCA
may be attracted, for which offence the maximum punishment provided is three
years' rigorous imprisonment and they having already spent more than two
years in judicial custody they are entitled to be enlarged on bail; and that
some similarly situated accused have already been granted bail by this Court. D
Respondent submitted that there is enough evidence on record to show
that the appellants had knowingly facilitated and abetted the 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
~ E
Allowing the appeals, the Court

HELD:l.1. Since the provisions ofMCOCA 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 F
the provisions contained in sub-section (4) of Section 21 of MCOCA have to
be borne in mind. [Para 1l [ (389-A-B]

Chenna Boyanna Krishna Yadav v. State of Maharashtra & Anr., [2007]
I SCC 242, referred to.
G
1.2. What needs to be considered before granting bail to accused is
whether there is a reasonable ground to believe that they are not guilty of the
two offences, they have been chargeJ with and further that they are not likely
to commit an offence under MCOCA whi!e on bail. [Para 12] [389-F]
H
386 SUPREME COURT REPORTS (2007) 2 S.C.R.

A 1.3. Having considered the matter in the light of the roles attributed to
the appellants in the charge-sheet, the allegations 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
B appellants have already been in judicial custody for over two years, it is a fit
case for grant of bail to both the appellants. fPara 13) (389-G; 390-A)

2. It is clarified that the observations made 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
C the issues of fact or law, which may arise for consideration during the course
of trial. fPara 14( (390-B)

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 183 of
2007.

D From the Final Judgment and final Order dated 3 .3 .2006 of the High
Court of Judicature at Bombay, in Crl. A. No. 6577 of 2005.
j
WITH

Crl. A. No. 184 of2007.
E T.L.V. Iyer, Naresh Kaushik, B.S. Methalia, Arnita Kalka! and Anish
Dhingra (for Lalita Kaushik) for the Appellant.

Sushi! Kumar, Ranjana Narayan, P. Parmeshswaran and V.N. Raghupathy
for the Respondents.
F The Judgment of the Court was delivered by

D.K. JAIN, J. 1. Leave granted.

2. 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
G at Bombay, rejecting the bail applications preferred by the appellants.

3. The appellants having been arrested in connection with the same
case (C.R. No. 131 of2001 ), registered at Thane Police Station for the offences
punishable under Sections, 192, 217, 218, 263(a) of the Indian Penal Code read
H with Sections 3(l)(ii), 3(2), 3(3), 3(4) and Section 34 of the Maharashtra
DATTATRAYKRISHNAJIGHULE1·.STATEOFMAHARASHTRA[DKJAIN,J.] 387
Control of Organised Crime Act, 1999 (hereinafter referred to as "MCOCA"), A
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 aforementioned case.
Both of them were arrested on 8th October, 2004.

4. The case of the prosecution against the appellants, in brief, is as B
under:

5. 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 of200\ C
was registered. Vichare investigated the case from 16th May, 200 I 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, 200 I one Maruti Car was intercepted and a huge quanity 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 D
investigations, three charge-sheets were filed against several persons, including
one Shabbi Sheikh and Abdul Karim Ladsab Telgi, head of an organised crime
syndicate, engaged in unlawful activities relating to printng of counterfeit
stamps and other documents and sale thereof. However, subsequently, under
the orders of this Court, investigations in the case transferred to the C.B.I. E
and the provisions ofMCOCA 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.

6. 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 F
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 offeces 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 G
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 (C.R. No. 131/200 I) against him and also destroyed/fabricated H
388 SUPREME COURT REPORTS [2007] 2 S.C.R.

A evidence by entering into criminal conspiracy with the members ofTelgi gang
by misusing their official position.

7. Taking these circumstances into consideration, as noted above, the
learned Single Judge has rejected application for bail preferred by the appellants.
B 8. We have heard Mr. T.L.V. Iyer and Mr. Arvind Sawant, learned senior
counsel respectively on behalf of Ghule and Vichare and Mr. Sushi! Kumar,
learned senior counsel on behalf of the C.B.I.

9. Learned senior counsel for the appellants have submitted that no
C 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 faciliation 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 "constinuing unlawful ac.tivities"
within the meaning of Section 2(1 )( d) of MCOCA or have committed "organised
D crime" within the meaning of Section 2(1)(e) ofMCOCA. 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( I)(t) 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
E acts of omission and/or commission, at the highest only Section 24 ofMCOCA
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
F already been granted bail by this Court.

10. Learned senior counsel appearing for the C.8.1., 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
G therefore, in the teeth of rigours of Section 21(4) of MCOCA, the appellants
cannot be released on bail.

11. At this juncture, it is neither necessary nor desirable to weigh the jo
evidence meticulously to return a positive finding as to whether or not the
appellants have committed offences they have been charged with. However,
H
DATTATRA Y KRISHNAJI GHULE 1·. STATE OF MAl-!ARASHTRA[JAIN, l] 389
'>\ as the provisions of MCOCA have been invoked in the instant cases, in A
addition to the considerations which nonnally weigh with the court in granting
bail in non-bailable offences, the .limitations imposed in the provisions contained
in sub-section (4) 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. v. State of Maharashtra and Anr1., and its scope
and purport was explained thus:
B

"It is plain from a bare reading of the non-obstante clause in the
4 sub-section that the power to grant bail by the High Court or court
t
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) ofMCOCA. Apart from the grant of opportunity to the Public
c
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 D
has to be based on reasonable grounds. The expression "reasonable
-+-
grounds" means something more than prima facie grounds. It
_J
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 jllstify satisfaction that the accused
E
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."

12. Thus, in the light of what has been said above, what needs to be
considered is whether there is a reasonable ground to be live that the appellants
F
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 bail.

13. 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 G
•. offence falling within the ambit of Section 3(2) of MCOCA. Therefore, bearing
r~ in mind the fact that maximum punishment provided under Section 24 of
MCOCA is three years rigorous imprisonment and the appellants have already

I. [20011 1 sec 242. H
390 SUPREME COURT REPORTS [2007] 2 S.C.R.

A been in judicial custody for over two years, in our view it is a fit case for grant
bail to both the appellants.

14. 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
B 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
C 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.

S.K.S. Appeals allowed.

..
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