... 1 ... IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.4853 OF 2004 CRIMINAL APPLICATION NO.4853 OF 2004 CRIMINAL APPLICATION NO.4853 OF 2004 Chenna Boyanna Krishna Yadav ...Applicant Vs. 1. The State of Maharashtra, 2. The Union of India through CBI, Mumbai ...Respondents Mr. V.R. Manohar, Sr. Counsel with Mr.A.P.Mundargi, Chandana Salgaonkar and M.Roopender i/by R.A. Shaikh for the Applicant. Mr. A.S. Gadkari, A.P.P. for the Respondent No.1. Mr.Sushilkumar, Sr. Counsel with Mr. Raja Thakare and Mr.A.M. Chimalkar for the Respondent No.2. CORAM : A. S. OKA, J. CORAM : A. S. OKA, J. CORAM : A. S. OKA, J. DATE : SEPTEMBER 19, 2005. DATE : SEPTEMBER 19, 2005. DATE : SEPTEMBER 19, 2005. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. This is the second Application for bail filed by the Applicant who is an accused in offences relating to printing counterfeit stamps and forgery in various States including the State of Maharashtra. This is a case relating to a scam which threatened the economy of the Country. The main accused in the case is Abdul Karim Ladsab Telgi(hereinafter referred to as ‘Telgi’). The allegation of the prosecution is that during the course of investigation of the case, number of places were raided and huge quantity of counterfeit stamps and printing machinery worth Rs.2128 crores was seized from several accused persons. 2. The first Application for bail made by the Applicant to this Court being Criminal Application ... 2 ... No.669 of 2004 was decided by this Court (Coram: D.B. Bhosale,J) by the order dated 06th August, 2004. When this second Application came up before this Court on 19th April, 2005, the learned Judge of this Court (Coram: A. M. Khanwilkar, J) directed that this Application should be placed before the same learned Judge who had rejected the first Bail Application filed by the Applicant. Accordingly, the office placed this Application before the same learned Judge who had rejected the earlier Bail Application. The Order Sheet shows that by order dated 15th July, 2005 the learned Judge (Bhosale, J.) directed the office to obtain appropriate orders from the Hon’ble the Chief Justice for placing this Application alongwith other Applications made by the co-accused in the same case before the Regular Court dealing with Bail Applications. The learned Judge was of the opinion that considering the peculiar facts and circumstances of the case, this Application should be heard alongwith the Applications of other co-accused by the Regular Court. The office noting shows that on 03rd August, 2005 the papers of this Application were placed before the Hon’ble the Chief Justice. An Administrative Order was passed by the Hon’ble the Chief Justice on the very day by which the present Application was assigned to this Court and that is how I have heard this Application. ... 3 ... 3. Before referring to the submissions made by the learned Counsel for the parties, a brief reference will have to be made to the facts of the case. The present Application relates to an offence which was originally registered vide C.R. No. 135 of 2002 at Bund Garden Police Station, Pune. The offence was registered under various sections of the Indian Penal Code. The sections of the Indian Penal Code which are invoked are sections 120(B), 255, 256, 257, 258, 259, 263(A), 420, 467, 468, 471, 472, 473, 474, 475, 476, and 34. The offence was also registered under the provisions of section 63(a) and 63(b) of the Bombay Stamp Act, 1958. Subsequently the provisions of the Maharashtra Control of Organised Crimes Act, 1999 (hereinafter referred to as MCOC Act) were also invoked and the sections 3(1)(i), 3(1)(ii), 3(2), 3(4), 3(5), 4 and 24 of the MCOC Act were applied. Against some of the accused including the Applicant herein commission of offences under section 7, 13(i)(d) of the Prevention of Corruption Act, 1988 have been alleged. 4. The provisions of the MCOC Act were invoked on 03rd September, 2002. Initially investigation was carried out by a Special Investigation Team (hereinafter referred to as SIT) and later on, under the orders of the Apex Court the investigation of the case alongwith other fourty seven cases was ... 4 ... transferred to CBI. The Applicant was arrested on 06th September, 2003 and was remanded to Police Custody. Since 26th September, 2003 he is in judicial custody. The chargesheet came to be filed against the Applicant on 29th December, 2003. Thereafter, a supplementary chargesheet was filed by the CBI on 26th July, 2005. 5. The Applicant is an Advocate. In the year 1994 he was elected as a member of the Legislative Assembly of the State of Andhra Pradesh. He was also appointed as a whip of Telgu Desham Legislative Party. Till the year 1998, he was a Minister for the Department of Animal Husbandary and Dairy Development in Andhra Pradesh Government. In the year 1999 he was again elected as a Member of the Legislative Assembly. For the period between October, 1999 to November, 2001, the Applicant was a Minister holding portfolios of Department of Labour and Employment as well as Factories. 6. On June 15, 2002 a premises held by the principal accused Telgi were searched by the Investigating Agency which was at the relevant time the Bund Garden Police Station, Pune. Thereafter, on 11th January, 2003 the same premises were searched by the SIT. At that time a micro audio cassette was seized from the premises of the co-accused Telgi. The ... 5 ... said cassette contains recording of alleged conversation between the Applicant and the said co-accused Telgi. The date mentioned on the said audio cassette is 16th January, 1998. Voice sample of the Applicant was obtained and the report of the Senior Scientific Officer of the Forensic Laboratory records an opinion that the voice recorded in the said seized cassette is the voice of the Applicant. 7. The allegation in short is that in the year 1998, the Applicant was involved in kidnapping one Abdul Wahid and one Sadashiva who were the men employed by the co-accused Telgi and demanded ransom of Rs.2 crores from Telgi for releasing the said two persons. As a result of the said offence, the Applicant came in close contact with co-accused Telgi. The contact of the Applicant with the co-accused Telgi gave a rise to the association between the Applicant and the said Telgi which resulted in the Applicant rendering active support and help to the said Telgi in his alleged unlawful activities of Organised Crime Syndicate in the State of Andhra Pradesh. As stated earlier, the alleged Organised Crime Syndicate of co-accused Telgi relates to printing and manufacturing of counterfeit stamps and other documents and sale thereof. The allegation seems to be that the Applicant received huge amounts from time to time from the Organised Crime Syndicate headed by Telgi and in ... 6 ... turn he helped the Organised Crime Syndicate in carrying out unlawful activities in the State of Andhra Pradesh. The Applicant being a very influential political person, he gave protection to business of Telgi and his Organised Crime Syndicate of printing and sale of fake stamp papers. The allegation against the Applicant is of knowingly aiding and abetting the Organised Crime Syndicate of Telgi in carrying on its continuing unlawful activities. 8. The learned Senior Counsel Shri. Manohar appearing for the Applicant alongwith learned Counsel Shri. A. P. Mundargi, have made extensive submissions on behalf of the Applicant. To begin with, Shri. Manohar stated that the changed circumstances on the basis of which the second Bail Application is filed in this Court can be summarised as under: (i) Law subsequently laid down by the Apex Court in the decision reported in J.T. 2005(4) Supreme Court, Page 123 (Ranjeetsingh Sharma Vs. State of Maharashtra & Anr.) (ii) Filing of the supplementary chargesheet by the Investigating Agency- CBI in July, ... 7 ... 2005. (iii) Long passage of time from the date of rejection of earlier Application for bail. He submitted that maximum punishment provided under section 24 of the MCOC Act is three years and the Applicant is already in custody for more than two years. Apart from the change of circumstance, Shri. Manohar has raised issue relating jurisdiction of the learned Special Judge to try the offences against the Applicant. Broadly speaking, the said submission is that the Applicant is charged with commission of offences under MCOC Act based on incidents which have taken place outside the State of Maharashtra and therefore, the provisions of MCOC Act cannot be applied. The second submission in this behalf is that even assuming that provisions of the MCOC Act can be applied, the jurisdiction of the Special Court does not extend to any offence which is committed before the coming into force of the MCOC Act. The third submission is that even the commission of offences under the Prevention of Corruption Act, 1988 have been alleged and except for the Special Judge as notified under the said Act of 1988, no other court has jurisdiction to try the case. ... 8 ... 9. Shri. Manohar placed reliance on the decision of the Supreme Court reported in 1975(3) Supreme Court 1975(3) Supreme Court 1975(3) Supreme Court Cases, Page 706 (Supreintendent and Reman Brancer of Cases, Page 706 (Supreintendent and Reman Brancer of Cases, Page 706 (Supreintendent and Reman Brancer of legal affairs, West Bengal Vs. Mohan Singh and legal affairs, West Bengal Vs. Mohan Singh and legal affairs, West Bengal Vs. Mohan Singh and others). others). others). The said decision is an authority for the proposition that change of circumstances with the passage of time allows even a second Application to be filed under section 482 of the Code of Criminal Procedure, 1973. His submission is that the same principle applies to the Applications for Bail. The second judgment which is relied upon by Shri. Manohar is reported in AIR 1978 Supreme Court, Page 527 (Babu AIR 1978 Supreme Court, Page 527 (Babu AIR 1978 Supreme Court, Page 527 (Babu Singh & Ors. Vs. The State of Uttar Pradesh). Singh & Ors. Vs. The State of Uttar Pradesh). Singh & Ors. Vs. The State of Uttar Pradesh). Shri. Manohar pointed out that the Apex Court has held in the said decision that order refusing an Application for bail does not preclude another Application on a later occasion giving more material, further developments and different considerations. 10. Shri. Manohar submitted that a co-accused in the same case Shri. Ranjeetsingh Sharma against whom more evidence was available has been enlarged on bail and on that ground also the Applicant is entitled to file the second bail Application. Relying upon the decision of the Apex Court reported in 2005(2) Supreme 2005(2) Supreme 2005(2) Supreme Court, Page 42 (Kalyan Chandra Sarkar Vs. Rajesh Court, Page 42 (Kalyan Chandra Sarkar Vs. Rajesh Court, Page 42 (Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav & Anr.) (hereinafter referred to Ranjan @ Pappu Yadav & Anr.) (hereinafter referred to Ranjan @ Pappu Yadav & Anr.) (hereinafter referred to as the second case of Kalyanchand Sarkar). as the second case of Kalyanchand Sarkar). as the second case of Kalyanchand Sarkar). Shri. ... 9 ... Manohar submitted that the second bail Application was maintainable as principles of re-judicata and constructive re-judicata as well as principles analogous to re-judicata are foreign to the criminal jurisprudence. 11. Shri. Manohar extensively referred to the case of Ranjeetsingh Sharma (Supra). He submitted that the Apex Court has interpreted the various provisions of the MCOC Act in said decision and in particular the definition of the word "abet" contained in section 2(1)(a) of the MCOC Act. He submitted that though the definition on the face of it may appear to be expansive in nature, the words "communication" or "association" used therein must be read to mean such communication or association which is in aid of or render assistance in the commission of organized crime. He submitted that mere connection or association which is not having any nexus with the commission of the concerned Organised Crime will not be covered by the definition of the word "abet". He submitted that while the first bail Application was considered, an error of law has been committed by this Court while interpreting the definition of Organised Crime under section 2(1)(e) of the MCOC Act. He submitted that the use of words "unlawful means" in the definition of organised crime in Section 2(1)(e) will have to be read ejusdem generis with the earlier ... 10 ... words used in the said provision viz; use of violence, threat of violence, intimidation or coercion. He submitted that the Apex Court has held that primafacie it appears that the legislature never intended that the words "unlawful means" should be widely construed as including any unlawful means having regard to the sections 400, 401 and 413 of the Indian Penal Code which relate to the offences of criminal breach of trust or cheating. He submitted that while deciding the first Bail Application of the Applicant, this Court has committed an error by ignoring that the explanation "any unlawful means" must refer to an act which has a direct connection with commission of an offence which MCOC Act seeks to prevent. He urged that the words "other unlawful means" would draw colour and complexion from the words immediately preceding them so as to include only those acts akin to violence, threat and intimidation. He submitted that merely because a person commits offences under the Indian Penal Code on more than one occasion, it may not be sufficient to attract the provisions of the MCOC Act. He submitted that peaceful and non-violent acts such as act of printing and selling of fake stamps is by no stretch of imagination an Organised Crime. 12. Shri. Manohar submitted that the acts complained of against the Applicant are of abduction ... 11 ... of two men employed by the co-accused Telgi and the demand of ransom of Rs.2 crores are completely disassociated from the principal offence alleged under the MCOC Act. He submitted that the said allegations are destructive of the theory of the involvement of the Applicant in the alleged offence of printing and selling fake stamps. He submitted that, therefore, on the face of it, it is impossible to draw an inference that the Applicant was a member of conspiracy or had abetted of commission or facilitation of the crime with which co-accused Telgi and other co-accused are associated. He submitted that the provisions of MCOC Act cannot apply to the Applicant. 13. Next limb of submission of Shri. Manohar is that when the alleged action of kidnapping and demand of ransom has taken place, the Applicant was only a member of Legislative Assembly. Placing reliance on decision of the Apex Court in the case of Ramdas Nayak Ramdas Nayak Ramdas Nayak Vs. A.R. Antulay reported in (1984) 2 Supreme Court Vs. A.R. Antulay reported in (1984) 2 Supreme Court Vs. A.R. Antulay reported in (1984) 2 Supreme Court Cases, Page 183 Cases, Page 183 Cases, Page 183 he submitted that at the relevant time the Applicant was not a public servant and therefore, section 24 of the MCOC Act cannot be attracted. 14. He urged that the theory of recovery of micro audio cassette from the premises of the co-accused Telgi is itself doubtful. He submitted that prior to the search by SIT, the Officers of Bund Garden Police ... 12 ... Station, Pune had searched the same premises where the cassette was subsequently found. He relied upon the statements of the witnesses recorded in connection with the offences registered at Begum Bazar Police Station at Hyderabad, State of Andhra Pradesh and Madiwala Police Station at Banglore, State of Karnataka. He submitted that a deliberate attempt is made to bring the case within the perview of the MCOC Act by recording second statement of witness Sadashiva nearly one month after the arrest of the Applicant. He submitted that statements of other witnesses Sanjay Singh, Raju Shrivastava and Shamsundar were also recorded after the arrest of the Applicant. He pointed out that the alleged victims of the offence of kidnapping themselves appear to have shared the ransom money. He submitted that the story of kidnapping is an antithesis to the prosecution case. 15. Lastly, relying upon the decision of the Apex Court in the case of Ranjeetsingh Sharma, he submitted that the restrictions imposed by sub-section 4 of Section 21 of the MCOC Act on the powers of the court to grant bail cannot be stretched too far. The submissions of Shri. Manohar were supplemented by the learned Senior Counsel Shri. A.P. Mundargi by referring to the relevant part of the chargesheet and statements of various witnesses. He has also taken me through the order passed by this Court while deciding ... 13 ... the first Bail Application of the Applicant. 16. The learned Senior Counsel appearing for the Investigating Agency- CBI at the outset submitted that the second Bail Application filed by the Applicant was not maintainable. He placed reliance on the decision of the Apex Court reported in 2004(7) Supreme Court 2004(7) Supreme Court 2004(7) Supreme Court Cases Page 528 Kalyanchandra Sarkar Vs. Rajesh @ Cases Page 528 Kalyanchandra Sarkar Vs. Rajesh @ Cases Page 528 Kalyanchandra Sarkar Vs. Rajesh @ Pappu Yadav and another (hereinafter referred to as Pappu Yadav and another (hereinafter referred to as Pappu Yadav and another (hereinafter referred to as the first case of Kalyanchandra Sarkar) the first case of Kalyanchandra Sarkar) the first case of Kalyanchandra Sarkar) as well as on the second case of Kalyanchandra Sarkar. He submitted that as held by the Apex Court in the second case of Kalyanchandra Sarkar, the second Bail Application was maintainable only when there was a material change in the fact situation. He submitted that the Apex Court has decided the case of Ranjeetsing Sharma in the light of the peculiar facts of the said case. He submitted that there is no change in law. He submitted that failure to argue the point relating to jurisdiction in earlier Bail Application and attempt to argue the point of jurisdiction in second Bail Application is impermissible as by no stretch of imagination there is a material change in the fact situation. 17. He has invited my attention to various factual aspects of the case by referring to the material appearing in the chargesheets. He submitted that the ... 14 ... allegation regarding kidnapping of two men belonging to Telgi and demanding ransom cannot be termed as antithesis to the prosecution case and infact, the said act on the part of the Applicant is beginning of the association of the Applicant with co-accused Telgi and he submitted that there is material on record to show that thereafter, the Applicant actively supported the Organised Crimes Syndicate of Telgi and infact accepted the large amounts from the Organised Crimes Syndicate. He submitted that the printing of fake stamps, the distribution and sell thereof is an Organised Crime. He submitted that it is a continuing activity. He pointed out that there is enough material on record to show that the Applicant abetted the said Organised Crime activity. He submitted that it may not be necessary for this Court to go into aspect of interpretation of "other unlawful means" as there is material on record to show that there was use of violence, intimidation and coercion in the unlawful activities of various accused persons as members of Organised Crimes Syndicate. 18. The learned Senior Counsel also invited my attention to the averments made and the grounds taken in the first Bail Application filed by the present Applicant. He invited my attention to ground ‘h’ in the said Application in which a challenge was made to the jurisdiction of the learned Special Judge, Pune. ... 15 ... He submitted that ground of jurisdiction was taken but was not argued. He pointed out that all the points which are argued by the learned Senior Counsel appearing for the Applicant were part of the Application for discharge filed by the Applicant before the Special Court and the Special Court by a reasoned order has rejected the Application. He submitted that a copy of the order passed on discharge Application by which the challenge on the ground of jurisdiction was rejected by the Special Court was not deliberately annexed to the second Bail Application. He submitted that while dealing with the issue of discharge, the learned Special Judge has decided the said point against the Applicant and as a consequence of failure of the Applicant to challenge the said order, the said decision on the said issues has attended finality. 19. The learned Senior Counsel further submitted that the Applicant cannot rely upon any material which is not forming part of the chargesheet in support of the Bail Application. The learned Senior Counsel submitted that the decision of the Apex Court in AIR AIR AIR 2004 HCCL .COM Page 1055 (State of Orissa Vs. 2004 HCCL .COM Page 1055 (State of Orissa Vs. 2004 HCCL .COM Page 1055 (State of Orissa Vs. Debendra Nath Pandhi) Debendra Nath Pandhi) Debendra Nath Pandhi) has overruled the earlier decision in the case of Satish Mehra Vs. Delhi Administration. He submitted that the view taken by the Apex Court is that even at the time of hearing of ... 16 ... Application for discharge, the accused has no right to rely upon any material which is not forming the part of the chargesheet. He, therefore, submitted that the documents which are not part of the chargesheet cannot be considered by this Court while deciding the second bail Application. 20. He submitted that the activities of the Applicant continued even after the coming into force of the MCOC Act. From 22nd October, 1999 the Applicant became Minister and therefore, in any event from that day he was a public servant. He submitted that this Court is bound by the view taken by it while deciding the earlier Bail Application. 21. In reply to the submissions of the learned Senior Counsel appearing for the CBI, Shri. Mundargi, learned Senior Counsel appearing for the Applicant has placed reliance on certain decisions. Shri. Mundargi submitted that the case of State of Orissa (Supra) will have no application as the Apex Court has dealt with the scope of Application for discharge and since Application for bail relates to liberty of an individual, reliance can be always placed on the documents which are not part of the chargesheet. He submitted that the order passed by the Trial Court on the discharge Application cannot come in the way of the Applicant as the case will have to be considered ... 17 ... by this Court on its own merits and this Court is not bound by what has been held while deciding the Application for discharge. He submitted that the scope for Application for discharge and Application for Bail is completely different. He placed reliance on some other decisions in support of the contention of the Applicant that the words "other unlawful means" will have to be read " ejusdem generis" with the earlier words used in the relevant section. He submitted that the CBI cannot place reliance on the first case of Kalyanchandra Sarkar (Supra) as the said decision is explained by the Apex Court in the later decision in the second case of Kalyanchandra Sarkar (Supra). 22. I have considered the submissions. Firstly, I propose to deal with the legal submissions made regarding the scope of the second Bail Application. Reliance has been placed by Shri. Manohar on decision of the Apex Court reported in (1975)3 Supreme Court (1975)3 Supreme Court (1975)3 Supreme Court Cases Page 706 (Superintendent and Legal Remembrancer Cases Page 706 (Superintendent and Legal Remembrancer Cases Page 706 (Superintendent and Legal Remembrancer