1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.721 OF 2009 IN MCOCA SPECIAL CASE NO.7 OF 2008 IN F.I.R.NO.82 OF 2007 DATED 2/3/2007 IN DCB CID C.R.NO.69 OF 2008 DATED 29/4/2008 Arun Gulab Gawli )..Applicant Vs. The State of Maharashtra )..Respondent W I T H CRIMINAL APPLICATION NO.804 OF 2008 IN M.C.O.C. SPECIAL CASE NO.07 OF 2008 Sahebrao Kaluram Bhintade )..Applicant Vs. The State of Maharashtra, DCB CID Unit-3 Mumbai )..Respondent W I T H CRIMINAL APPLICATION NO.1073 OF 2009 Sadashiv @ Bala Dhondu Surve )..Applicant Vs The State of Maharashtra )..Respondent ---- Mr. A.P.Mundargi Senior Advocate i/by Mr.I.A.Bagaria for the applicant in Criminal Application No.721/2009. Mr.Girish Kulkarni for the applicant in Criminal Application No.804/2009. Mr.Shirish Gupte Senior Advocate i/by Ms.Neha Palshikar Bhide and V. V .Purvant for the applicant in Criminal Application No.1073/2009. Mr. A. S. Gadkari APP for the State/respondent. ---- 2 Coram : R.S.MOHITE,J Date : 22nd March, 2010 PC 1 All these applications are for grant of bail pending the trial of the applicants in DCB CID Case No.69 of 2008 (earlier Saki-naka police station C.R.No.82 of 2007) for alleged offences punishable under Sections 452, 302, 386 read with 34 of IPC, section 120-B of IPC, sections 3, 5, 25, 27 & 29 of the Arms Act read with 37(1), section 135 of the Mumbai Police Act and sections 3-1(i), 3-1(ii), 3(2) and 3(4) of the MCOC Act 1999. Since the allegations against all the three applicants basically relate to abetment and conspiracy, in my view, the 3 applications can be conveniently disposed off by a common order. 2 The relevant facts of the case are as under :- (a) According to the material collected by the DCB-CID, the investigating agency sometime in the 2nd or 3rd week of December-2006, two persons by name Ajit Rane and Pratap Godse who were allegedly members of a political party by name Akhil Bharatiya Sena, came along with two persons i.e. Sahebrao Bhintade (the applicant in Criminal Application No.804/2009) and Sadashiv @ Bala Surve (the applicant in Criminal Application No.1073/2009) to the office of Akhil Bharatiya Sena. At that time Pratap Godse was carrying with him a briefcase and they called one Suresh Patil who was on an upper floor. After Suresh Patil joined them, Suresh Patil, Pratap Godse and two aforesaid applicants Bhintade and Surve proceeded to a building by name Geetai building, where on the 2nd floor, they met Arun Gawli (the applicant in 3 Criminal Application No.721/2009). Pratap Godse then handed over the briefcase to Arun Gawli and informed him that there were Rs.30 lakhs in it. On instructions of Arun Gawli, Suresh Patil took the said bag into his custody. Arun Gawli then informed Bhintade and Surve that “do not worry, the work of Jamsandekar will be done”. When this assurance was given, one Sandeep @ Sandy Gangan was also present. After such assurance was given by Mr.Arun Gawli, Sandeep, Pratap Godse, Surve and Bhintade returned back to the ground floor of the office of Akhil Bharatiya Sena. Pratap Godse informed Sandeep that the names of the two persons were Surve and Bhintade and later on Ajit Rane, Pratap Godse , Surve and Bhintade left the premises. It is the case of the prosecution that this entire transaction represented a contract killing entrusted by Surve and Bhintade to Arun Gawli, who according to the prosecution runs an organised crime syndicate. (b) It is the case of the prosecution that on 2.3.2007, two un-identified persons entered into a house of Jamsandekar and shot him dead. This incident was witnessed by one Manali Hire who was a relative and who was present in the house and it was at her behest the Sakinaka police station registered Crime No.82/2007 and commenced investigation. When the Investigating officer visited the scene of offence and prepared a spot panchanama, a piece of a butt of a gun was found on the spot. (c) According to the material earlier collected by the Saki-naka police station on 1.2.2007 an election to the post of Corporator was held. The deceased Jamsandekar was standing for the said election and he was opposed by Ajit Rane who was the 4 candidate nominated by the Akhil Bharatiya Sena. When the counting was over it was found that Jamsandekar had been elected and that Ajit Rane had secured very few votes. In this background, on 4.2.2007, Ajit Rane, Pratap Godse, Ganesh Salvi and Pravin Marathe started a discussion as to why Ajit Rane had not secured the expected number of votes. That, during this discussion Ajit Rane stated that in spite of all their efforts, no benefit had been obtained. That there was some mischief behind the election of Jamsandekar. He suggested that Jamsandekar should be killed. That, after hearing this, Pratap Godse also stated that he was also willing to participate in the killing of Jamsandekar. When they looked at Ajit Rane, Ajit Rane said that they would see as to what was required to be done and thereafter they left the place. During this meeting, one Nilesh H. Patil was also present. On the basis of such material, the Sakinaka police station had arrested the aforesaid persons and certain other persons for being a part of a conspiracy in pursuance of which Corporator Jamsandekar was ultimately murdered. (d) In March-2007 Sakinaka police station arrested Pratap Godse and Ajit Rane and some other persons and after completion of their investigation, they filed a charge-sheet on 8.6.2007. This case was committed by the Magistrate to the Court of Sessions on 21.6.2007. (e) On 26.4.2008 the police arrested four persons by name Vijay Giri, Ashok Jaiswal, Narendra Giri and Anil Giri for alleged unconnected offences punishable under Sections 399 and 492 of IPC. On the search of these persons, on the same day a weapon was found on the person of Vijay Giri. The police found that the weapon 5 had a piece of its butt missing and in the circumstances, it was suspected by the police that this weapon has been used for the murder of Jamsandekar particularly since a similar piece of a butt of a weapon has been found in the scene where he had been shot. (f) On 16.5.2008 the police arrested one Shrikrishna as being the person who had supplied the weapon which had been used for the alleged commission of the offence. (g) On 29.4.2008, the two applicants before me i.e. Surve and Bhintade were arrested. (h) On 16.5.2008, the DCB CID unit-3, Bombay, which had by then taken over the investigation, from the Sakinaka police station applied to the Joint Commissioner of Police for grant of approval to apply MCOCA in their C.R.No.69 of 2008. (i) On 20.5.2008 the applicant Arun Gawli who was already under arrest in an earlier case of extortion was shown as arrested in this case and on the same day the approval under Section 23 of the MCOC Act was granted by the Joint Commissioner of Police, Crime to the offences which were the subject matter of C.R.No.82 of 2007 registered with the Sakinaka police station. (j) That, thereafter from 28.5.2008 till 15.7.2008 an authorised officer from DCB CID recorded the confessionary statements of 7 accused. A charge showing the details of confessionary statements and their status as is herein below :- 6 --------------------------------------------------------------------------------------------------------------------------- Name of the Date of Date of production If retracted, when names of accused Accused Confessional before Hon’ble & before whom persons reflected statement CMM in statement ----------------------------------------------------------------------------------------------------------------------------- 1 Shrikrishna @ 28/05/2008 29/05/2008 Retracted before Dagali Chawl Babu Tukaram Hon’ble Spl. (Arun Gawli) Gurav MCOC Court Bala Surve, Sahebrao Bhinta de, Pratap Godse Ajit Rane, Vijay Giri, Narendra Giri, Ashok Giri, Anil Giri, Dinesh Narkar, Surendra Panchal 2 Sandip @ Sandy 7/05/2008 29/05/2008 Retracted before Arun Gawli Baliram Gangan Hon’ble Spl. Ajit Rane, MCOC Court. Pratap Godse Bala Surve, Sahebrao Bhintade, Suresh Patil, Dattaram @ Babu Dhighe 3 Ashokkumar 29/05/2008 30/05/2008 Retracted before Pratap Godse Shivakant Hon’ble CMM Ajit Rane, Jaiswal Shrikrishna @ Babu Gurav Vijay Giri, Narendra Giri, Anil Giri 4 Anil 05/06/2008 06/06/2008 Retracted before Pratap Godse Sherbahadur Hon’ble CMM Ajit Rane, Giri Shrikrishna@ Babu Gurav, Vijay Giri, Narendra Giri Ashok Giri 7 5 Dinesh @ 05/06/2008 05/06/2008 Retracted before Ajit Rane, Dinya Laxman Hon’ble CMM Pratap Godse, Narkar Shrikrishna @ Babu Gurav, Surendra Panchal 6 Narendra @ 05/06/2008 05/06/2008 Retracted before Pratap Godse Kandi @ Guddu Hon’ble CMM Ajit Rane, Lalmani Giri Shrikrishna @ Babu Gurav, Vijay Giri, Ashok Giri, Anil Giri 7 Suresh 15/07/2008 15/07/2008 Retracted before Arun Gawli Raghunath Patil Hon’ble CMM Ajit Rane @ Mothi Bank Pratap Godse, Bala Surve, Sahebrao Bhintade, Sandip Gangan Sunil Ghate, Pabhya Raut (k) In due course, after completion of investigation, DCB CID has filed a charge- sheet in the said case and the case was numbered as MCOC Special Case No.7 of 2008. 3. All the applicants filed bail applications before the Special Court. The bail application of Arun Gawli came to be rejected by the Special Judge on 5.1.2009, the bail application of Sahebrao Bhintade was rejected by the Special Judge on 17.1.2009 and the bail application of Sadashiv Surve was rejected on 20.2.2009. 8 4 In such circumstances, all the three applicants have filed separate applications for grant of bail before this Court. 5 On behalf of all the applicants it was contended that the Apex Court in the case of Ranjitsingh Sharma Vs. State of Maharashtra & Anr reported in (2005) 5 Supreme Court Cases 294 had applied a purposive construction to section 21(4) of the MCOC Act which placed limitation on the power of the Court to grant bail in cases where offences under MCOCA were alleged. Strong reliance was placed by the Advocates on paragraph-44 to 46 of the said judgment which are reproduced hereinbelow :- “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 futuro must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an 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. 45. It is, furthermore, trite that for the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail. 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 9 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.” 6 Keeping in mind the interpretation of section 21(4), I have proceeded to deal with the other contentions as raised in order to ascertain whether the material collected against the accused during the investigation may or may not justify a judgment of conviction, I have heard the parties at length and have looked into the record in some detail. On behalf of all the applicants it was contended that the only material available to the prosecution against the applicants was the confessions of various co-accused. It was contended that of the 7 co-accused whose confessions were recorded only Sandeep @ Sandy Baliram Gagan & Suresh Raghunath Patil implicated all the present applicants. It was contended that though Sandip @ Sandy has confirmed his statement to the Magistrate when he was produced before the Magistrate he had subsequently retracted the same before the Special MCOC Court. Suresh R. Patil had however, immediately retracted his statement when he was produced before the Magistrate. It was also contended that Shrikrishna @ Babu T. Gurav only involved the applicant Bhintade and applicant Surve through what he has learnt from accused Pratap Godse. It was contended that though co-accused Shrikrishna had not immediately retracted his statement before the Magistrate, he had retracted the same before the Special MCOC Court. The first legal contention raised by the accused was that even though these statements were admissible against co-accused in view of the provisions of Section 18 of the MCOC Act, the legal position which emerged from a catena of judgments of the Supreme Court starting from the judgment of the Apex Court in the case of Kashmira Singh Vs. State of M.P reported in AIR 1952 Supreme Court 159 was that the confession of an accused was not evidence in the ordinary sense of the term as defined 10 in section 3. It could not be made as a foundation of a conviction and could only be used in support of other evidence. The proper way was to first to marshal the evidence against the co-accused excluding the confession altogether from consideration and see whether, if it could be believed and a conviction could safely be based on it. That if the other material was capable of belief, then the conviction was to be based on such other material but if the Judge was not prepared to act on such other material, in such event the judge could call in aid, the confession of the co-accused and use it to lend assurance to the other evidence in order to fortify his belief. It was further contended that a co-accused who confessed was naturally an accomplice and it was not permissible in law to corroborate the testimony of one co-accused with the confession of another co-accused. In this regard reliance was placed on several judgments of the Apex Court including (1) Haricharan Kurmi Vs. State of Bihrar (AIR 1964 SC 1184) (2) Tashi Delek Gaming Solutions Ltd., Vs. State of Karnataka (2006 (1) SCC 442) and (3)Mohtesham Mohd. Ismail Vs. Spl. Director, Enforcement Directorate (2007 (8) SCC 254). It was contended that though these judgments pertain to the status of a confession of a co-accused under Section 30 of the Indian Evidence Act 1872, the position as relating to a special act like TADA which was akin to the MCOC Act was the same. In support of this proposition reliance was placed upon a judgment of the Apex Court in the case of State of Rajasthan Vs. Ajit Singh & Ors. Reported in 2008 (1) SCC 601. Since this is a question of law, I intend to first deal with this question as the determination of this question is necessary in order to determine the manner in which the material collected by the investigating authorities is to be addressed. The judgments which have been cited, with the exception of the State of Rajastan Vs. Ajit Singh (supra) deal with the evidentiary value of a confession against a co-accused under Section 30 of the Indian Evidence Act. Though the case of State of Rajastan Vs. Ajit Singh considered the 11 evidentiary value of a confession vis-a-vis section 15 of TADA 1987, the case dealt with a confession recorded before the 1993 amendment to TADA, which provided that the confession of an accused could be used against the co-accused abetor or conspirator was brought into force. In the circumstances, the judgment of the Apex Court in the case of Rajastan Vs. Ajit Singh cannot be cited in order to consider the evidentiary value against the confession of the co-accused under section 18 of MCOCA which all Counsels agreed is akin to the provision of section 15 of TADA as existing after the 1993 amendment. 7 The entire law on the subject has been considered and laid down by the judgment of the Apex Court in the case of State Vs. Nalini & Ors. Reported in 1999 (5) SCC 253. In the said case the Apex Court considered as to whether section 30 of the Indian Evidence Act would be relevant while considering the value of a confession covered by a special enactment like TADA. In the said case it was contended by the defence counsel that even if the confession of an accused is admissible under Section 15 of TADA it is not a substantive piece of evidence and cannot be used against a co-accused unless it is corroborated in material particulars by other evidence. He further contended that a confession of one accused cannot corroborate the confession of another. In support of his submission, he referred to another two-Judge Bench decision in Kalpnath Rai V. State, (1997) 8 SCC 732 where the Supreme Court held that confession under Section 15 of TADA cannot be used as substantive evidence and that it has only corroborative value. The Additional Solicitor General submitted that the statement of law as spelled out in para 75 of the judgment in Kalpnath Rai case needs reconsideration. He said that when Section 15 began with a non obstante clause, it applied notwithstanding the provisions of the Evidence Act and the Code. 12 8 The said contention was dealt with by Wadhwa, J and the reasoning and finding given while answering the said contention was as under :- “Section 15 TADA starts with a non obstante clause. It says that neither the Evidence Act nor the Code of Criminal Procedure will apply. This is certainly a departure from the ordinary law. When the legislature enacts that the Evidence Act would not apply, it would mean all the provisions of the Evidence Act including Section 30. By judicial interpretation or judicial rigmarole, the court cannot again bring into operation Section 30 of the Evidence Act and any such attempt would not appear to be quite warranted. TADA was enacted to meet extraordinary situation existing in the country. Its departure from the law relating to confession as contained in the Evidence Act is deliberate. Law has to respond to the reality of the situation. What is admissible is the evidence. Confession of the accused is admissible with the same force in its application to the co-accused who is tried in the same case. It is primary evidence and not corroborative. It is admissible against a co-accused as a substantive evidence. Substantive evidence, however, does not necessarily mean substantial evidence. It is the quality of evidence that matters. As to what value is to be attached to a confession will fall within the domain of appreciation of evidence. As a matter of prudence, the court may look for some corroboration if confession is to be used against a co-accused though that will again be within the sphere of appraisal of evidence.” As per Quadri, J who delivered a concurring judgment the said contention was answered in the following words :- “ An analysis of sub-section (1) of Section 15 shows that it has two limbs. The first limb bars application of provisions of the Code of Criminal Procedure and the Indian Evidence Act to a confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by him in any of the modes noted in the section. The second limb makes such a confession admissible, dehors the provisions of the Evidence Act in the trial of such person or co-accused, abettor or conspirator for an offence under the TADA Act or rules made thereunder provided the co-accused, abettor or conspirator is charged and tried in the same case together with the accused. The import of Section 15(1) is that insofar as the provisions of CrPC and the Evidence Act come in conflict with either recording of a confession of a person by a police officer of the rank mentioned therein, in any of the modes specified in the section, or its admissibility at the trial, they will have to yield to the provision of Section 15(1) of the TADA Act as it is given overriding effect. Thus, Sections 162, 164, 281 and 463 of the Code of Criminal Procedure which have 13 a bearing on the question of recording of statement/confession of a person and Sections 24 to 30 of the Evidence Act which deal with various aspects of confession of an accused stand excluded vis-a-vis Section 15(1) of the TADA Act and cannot be called in aid to invalidate recording of confession of an accused by a police officer of the specified rank and/or its admissibility in the trial of the co-accused, abettor or conspirator charged and tried in the same case together with the accused for an offence under the TADA Act or rules made thereunder. It must be made clear that the non obstante clause in Section 15(1) of the TADA Act does not exclude the application of all the provisions of the CrPC and the Indian Evidence Act in the trial of offences under the TADA Act.” The majority view of two judges was that law as laid down in Kalpanatrai 1997 (8) SCC 32, was not good law. They further differed with the judgment delivered by Thomas J and held that a confession of an accused under Section 15(1) of TADA could be used against co-accused, abettor or conspirator jointly tried with the accused. In paragraph-705 of the judgment delivered by Quadri, J it was observed that even if a confession of an accused as against co-accused tried with the accused in the same case is treated as “substantive evidence” understood in the limited sense of fact in issue or relevant fact, the rule of prudence required that the court should examine the same with great care keeping in mind the following caution given by the Privy Council in Bhuboni Sahu Case. In paragraph-706 he laid down that the use of confession of an accused against a co-accused is concerned, rule of prudence cautions the judicial discretion that it cannot be relied upon unless corroborated generally by other evidence on record. 9 In Devendra Pal Singh Vs. State of NCT 2002 (5) SCC 254 the Apex Court followed the judgment in Nalini’s case and held that the confession of an accused could be relied upon for the purpose of conviction and no further corroboration is necessary if it related to the accused himself. However, as a matter of prudence the Court may look some corroboration if confession can be used against co-accused. That will however be within 14 the sphere of appraisal of evidence. 10 The issue was again considered by the Apex Court in the case of Jamil Ahmed Vs. State of 2003 (9) SCC 673 where the 2 bench judge bench culled out a