:1: IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.4869 OF 2004 Abdul Rasheed S. Kulkarni. ..Applicant. Vs. The State of Maharashtra and ors. ..Respondents. Applicant in person present. Mr. Rajesh More, APP. for the State. Mr.Raja Thakare,Special P.P. with Mr. A.M. Chimankar for the CBI. CORAM: R.S.MOHITE, J. DATE : 21st August,2008 P.C. P.C. P.C. 1. This is an application for bail. The present applicant Abdul Rasheed S. Kulkarni is an Advocate who was arrested by State Investigating Team in connection with C.R.No.135 of 2002 which was initially registered by Bund Garden Police Station. It is not in dispute that the investigation is over and the charge sheet has been filed and the case has been registered as Special Case No.2 of 2003. It is also not in dispute that the charges were framed in the said Special Case and as per the charges framed, the present applicant was charged for committing offences punishable under Section-3(1)(ii), 3(2), 3(4), 3(5) and Section 4 of the Maharashtra Control of Organised Crime Act, 1999 (hereinafter referred to as "MCOC ACT"). It has been brought to my notice that after the charges were framed one of the :2: accused by name API-Kamat filed Criminal Writ Petition No.2744 of 2006 for quashing the charge under Section 3(1)(ii) of the MCOC Act contending that he was only liable for punishment under Section 24 of the MCOC Act and the charge under Section 3(ii) was improperly framed. By a Judgment and order dated 17.7.2007, the Division Bench of this court, without deciding the question which was raised observed that the charge were improperly framed and directed reframing of the charges. I am informed that while that exercise was being carried out, another accused person approached this court and hence, the exercise of reframing of the charge has not been completed. 2. The present applicant having been arrested on 5.8.2003 has been in Jail for more than 5 years. 3. It may be taken to be an incontrovertible position that the allegations against the present applicant do not pertain to the printing, distribution or sale of fake stamp papers. The main accused in this case is Abdul Karim Telgi and it is alleged by the prosecution that he was the head of an Organised Crime Syndicate which was pursuing the organised crime of printing, distribution and sale of fake stamp papers. For the aforesaid offences, Mr.Telgi came to be arrested on 7.11.2001 by the :3: police in Bangalore. 4. In so far as the present applicant is concerned, it is not disputed that he was engaged as a Advocate by Mr.Telgi after his arrest sometime in September, 2002. While Mr.Telgi was in jail, the present applicant was in communication with Mr. Telgi on a mobile phone. These telephone conversations were recorded by the police. The applicant contended that even if these conversations were accepted and read as true, there was nothing in them to indicate that he was involved in the printing, distribution and sale of fake stamps. This fact is not seriously controverted by the learned Special Prosecutor. At the highest, the conversations indicate that the present applicant was involved in the activity of liaisoning with various police officers and paying them monies in order to ensure that investigation was not properly done. According to the learned Special Prosecutor the police officers whom the present applicant dealt with were the Joint Commissioner of Police Mr. Wagal, API. Kamat attached to Crime Branch, Mumbai, ACP Mulani attached to the Crime Branch Pune and DCP Sawant Detection Cell, Mumbai. All these police officers are also arrayed as accused in the present case. The conversation and other statements relied upon by the prosecution indicates that the present applicant :4: was collecting and paying monies to these officials in order to ensure that they did not perform their duty of investigation. 5. It was contended that this would result in abetting the commission of the organised crime and would be an offence punishable under Section 3(2) of the MCOC Act. 6. It is noticed that the legislature has enacted a separate section i.e. Section 24 which is in respect of Punishment for public servants failing in the discharge of their duties. The said section reads as under. "24-Punishment Punishment Punishment for public servants failing in for public servants failing in for public servants failing in the the the discharge of their duties:- discharge of their duties:- discharge of their duties:-Whoever being a public servant renders any help or support in any manner in the commission of organised crime as defined in clause (e) of Section-2, whether before or after the commission of any offence by a member of an organised crime syndicate or abstains from taking lawful measures under this Act or intentionally avoids to carry out the directions of any court or of the superior police officer in this respect, shall be punishable with imprisonment of either description for a term :5: which may extend to three years and also with fine". The Act however, does not make abetting an offence under Section 24 an offence punishable under the Act and therefore, it appears that the abetment of the crime punishable under Section 24 would only be punishable under Section 109 of the I.P.C. 7. In Para-43 and 44-Part of the Judgment of the Apex Court in the case of Ranjitsing B.Sharma Vs. State of Maharashtra and ors. reported in A.I.R. 2005 S.C. 2277 The Apex Court sought to give a proper meaning of Section 24 of the MCOC Act. "43. Section 24 of MCOCA must be given a proper meaning.A public servant can be said to have committed an offence within the meaning of the said provision if he (i) in the commission of an organised crime; (ii) whether before or after the commission of an offence by a member of an organised crime syndicate or (iii) abstains from taking lawful measures under this Act or (iv) intentionally avoids to carry out directions of any Court or of the superior police officers in this respect. :6: 44. The purported acts of omission and commission on the part of the appellant does not attract the first part of Section 24 of MCOCA. It is not the contention of the respondent that he has committed any act which comes within the purview of clauses (3) and (4) hereinbefore". That case before the Supreme Court however, was in respect of the accused who was a police officer and was not in respect of the accused who was abetting a police officer to commit an offence under section 24 as is the allegation in the present case. 8. The Scheme of the Act indicates that the abetment of the commission of the organised crime however, has been treated on a different footing. Section 2(1)(a) defines abetment as under. "2(1)(a)-abet", with its grammatical variations and cognate expressions, includes,- (i) The communication or association with any person with the actual knowledge or having reasons to believe that such person is engaged in assisting in any manner, an organised crime syndicate; :7: (ii) the passing on or publication of, without any lawful authority, any information likely to assist the organised crime syndicate and the passing on or publication of or distribution of any document or matter obtained from the organised crime syndicate; and (iii) the rendering of any assistance, whether financial or otherwise, to the organised crime syndicate; 9. Section 3(2) of the Act makes a conspiracy, attempt, abetment or facilitation of the commission of organised crime or any, a separate offence punishable with imprisonment of a term which is not less than 5 years but which may extend to imprisonment for life. It seems to me that the investigation in the present case discloses commission of organised crime of printing, distribution and sale of fake stamps by some of the accused. The applicant was admittedly not involved with these activities prior to the arrest of Mr.Telgi. His role is restricted to bribing and influencing various police officers as detailed above. In my view, that offence would prima facie be an office punishable under Section 109 read with :8: Section 24 of the MCOC Act. It also appears from the scheme of the said Act that the stringent restrictions in respect of grant of bail provided by Section 21(4) is restricted to offences punishable under the MCOC Act. It also appears to me that by enactment of Section 24, the legislature in its wisdom seems to have been carved out in a separate specific offence in the case of public servants who render help or support in any manner in the commission of an organised crime whether before or after the commission of any offence by the members of organised crime syndicate. It was argued by the learned Special Prosecutor that a public servant who falls within the first part would also be guilty of offence under Section 3(2) of the MCOC Act. If this argument was accepted, it would lead to a consequence that for the same act, a public servant would be punishable under Section 24 which prescribes a sentence which may extend upto three years with fine but then it would also be punishable with a sentence which may extend to a life imprisonment under Section 3(2). It also appears to me that though Section 24 may attract the stringent restrictions for grant of bail prescribed by Section 24(4), abetment of an offence punishable under section, not specifically provided in MCOC Act but punishable under Section 109 of the I.P.C. albeit for the same sentence as provided under Section 24, :9: may not attract the provisions of Section 21(4) of the MCOC Act. 10. It was then contended by the learned Special Prosecutor that apart from Section 3(2) there was material on record to show that the present applicant was holding monies derived or obtained for commission of organised crime or which had been acquired through the organised crime syndicate funds. Reference was made in this regard towards the statement of one Kishore Dingey. This witness refers to a incident where police officer Kamat and the present applicant met him with a bag and two days thereafter Police Officer Kamat informed him that the applicant had given him 5,00,000/- lacs rupees as an advance. This reference indicates that certain amount was given by this witnesses to the said police officer as a bribe. The reference was then made to a confession statement one Sirajuddin who is the co accused and who stated that the applicant used to meet him and give him money for his expenses. My attention was drawn to the statement of one Firoz Khan who talks about one Anna giving 4,00,000/- lacs rupees to Telgi who had come alongwith police in police custody and the present applicant. From the aforesaid statements, source of money received by the present applicant is unclear. The intention of receiving money by the present :10: applicant was also not clear. It was contended that Anna was laundering and holding Telgi’s money. The said Anna is admittedly not an accused in this case. I therefore, have a serious doubt whether ultimately it can be held that the present applicant was holding monies derived or obtained for commission of organised crime or money from organised crime syndicate funds. It may be mentioned here that in the case of Ranjitsingh B.Sharma(supra) in Para-49 the Apex Court observed as under: "We are furthermore of the opinion that the restrictions on the power of the court to grant bail should not be pushed too far. If the Court, having regard to the materials brought on record, is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed". It may be stated here that the minimum sentence in respect of the offence with which the applicant is charged is five years and he has already under gone that sentence. I have already indicated that there is good possibility that the offence may be one punishable by Section 109 of the Indian Penal Code read with Section-24 of the MCOC Act and I have also indicated herein above that in my view stringent :11: restriction of bail as contained in Section 24 may not apply to Section 109 of the Indian Penal Code even if the same is read with Section 24 of the MCOC Act as abetment of an offence U/s.24 is not specifically made as separate offence under the MCOC Act. 11. No material is placed before me to indicate that the applicant if released on bail, would be likely to commit any offence while on bail. In the circumstances, I am inclined to grant bail to the applicant. It is therefore, directed that pending hearing and final disposal of the Special Case No.2 of 2003, the applicant may be released on bail in the sum of Rs.1,00,000/- with one surety in the like amount subject to condition that he will report the CBI, Bangalore twice in a week on every Monday and Thursday till the conclusion of his trial. The applicant will also not leave the country without the permission of the court and will commit no act directly or indirectly to influence the witnesses. 12. Before I part with the order, I may state that the observations made hereinabove by me are based upon the material produced before me for the limited purpose for deciding the bail application, even though the entire charge-sheet was not before me and the learned Special Prosecutor contended that the :12: reply and documents filed by them only restricted to the present accused-applicant. The evidence is yet to be recorded in the matter. In the circumstances, the observations made by me will not influenced the trial court at the stage of the trial. It is open for the trial court to reframe the charges after a detailed analysis and the material available in the charge sheet and thereafter judgment will be delivered on its own merits on the basis of the evidence adduced at the trial. 13. The learned Special Prosecutor applied for stay of the operation of the order. Since the applicant has already under gone more than five years, I am not inclined to grant stay. The learned counsel further states that this matter involves substantial question of law relating to interpretation of Section 3(2) and 24 of the MCC Act and is likely to affect the trial so also other cases pending trial. He seeks leave under Article 134(A) for a Certificate for Appeal to the Supreme Court. In my view, since issues of law involved are of public importance, certificate to appeal ought to be and is granted. Application is disposed off. (R.S. MOHITE, J.)