1 BA 333-2011 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL BAIL APPLICATION NO.333 OF 2011 WITH CRIMINAL APPLICATION NO.464 OF 2011 Lt. Col. Prasad Shrikant Purohit .Applicant Age : 39 yrs, Occu : Service R/o.76/21, Susmriti, Sahntishila Society, Law College Road, Erandwane, Pune  411 004. V/s. The State of Maharashtra .Respondent (Through ATS, Mumbai) And Nisar Ahmed Haji Sayed Bilal Age : 59 yrs, Occu : Retired .Intervener Permanent residing at 552, Islampura, Galli No.12, Malegaon, Nashik. WITH CRIMINAL APPLICATION NO.556 OF 2011 Ajay Ekanath Rahirkar .Applicant Age : 40 yrs, Occu : Business R/at 16/4, Erandwane, Pune  4. V/s. 1. The State of Maharashtra .Respondents (At the instance of ATS, Mumbai through Assistant Commissioner of Police, ATS, Mumbai. 2. National Investigating Agency Mumbai (Maharashtra) 2 BA 333-2011 Head Office at Ministry of Home Affairs (Govt.of India) 4 th floor, Splendor forum, Jasola District Center, New Delhi  110 025. Mr.Shrikant Shivade with Mr.M.S.Mohite, Advocate, for the Applicant in Cri.Bail Appln.No.333 of 2011 Mrs.Rohini Salian, appointed Public Prosecutor for the State with Mr.Mandar Goswami, for Union of India in Cri.Appln.No.556 of 2011 Mr.J.P.Kharge, APP, for the Respondent  State in Cri.Appln.No.556 of 2011 Mr.V.T.Tulpule, Senior Counsel with Mr.H.J.Kandalkar, for the Applicant in Cri.Appln.No.556 of 2011 Mrs.S.D.Shinde, APP, for Respondent No.1  State in Cri.Appln.No.556 of 2011 Mrs.Rohini Salian, Special Public Prosecutor, for Respondent No.2 in Cri.Appln.No.556 of 2011 CORAM : R.C.CHAVAN, J. RESERVED ON : 30TH SEPTEMBER, 2011 PRONOUNCED ON : 9TH NOVEMBER, 2011 J U D G M E N T . These two applications for bail have been filed by two persons arrested and chargesheeted in connection with bomb blasts 3 BA 333-2011 at Malegaon, District Nasik on 29 th September, 2008, for their alleged involvement in offences punishable 120B, 302, 307, 326, 324, 153-A, 427 of the Indian Penal Code read with Sections 3, 4, 5 and 6 of Explosive Substances Act read with Sections 3(1)(i), 3(2), 3(4) and 3(5) of the Maharashtra Control of Organised Act (hereinafter referred to as MCOCA ) and read with Sections and Sections 3, 5 and 25 of the Indian Arms Act read with Sections 16, 18 and 23 of Unlawful Activities (Prevention) Act (hereinafter referred to as UAPA ). The applicants were arrested on 5 th November, 2008 and 2 nd November, 2008 respectively. 2. Facts which are relevant for the purpose of deciding these two applications and which may, for the sake of arguments, be taken to be not in serious dispute are as under :- Applicant Lt. Colonel Prasad Purohit is a serving Army officer, who was also associated with Military Intelligence and Anti 4 BA 333-2011 Terrorism/Insurgency activities. He claims to have knowledge about various terror outfits. Applicant Ajay Rahirkar is a businessman/industrialist by profession. Co- accused (who are not applicants) include Sadhvi Pragya Singh Thakur, Sudhakar Dhar Dwivedi alias Shankaracharya and one Rakesh Dhawade. These persons (along with others, some of whom are not arrayed as accused but are cited as witnesses) formed an organization known as 'Abhinav Bharat Trust' at Pune in 2006 with headquarters at the address of Ajay Rahirkar. It was registered on 9 th February, 2007. They allegedly took an oath to strive to turn India into a Hindu Rashtra called Aryawart. The members met from time to time to discuss various aspects for achieving their goal. Accused Shankaracharya is stated to have recorded conversations at the meetings and these recordings are the foundation of case built up against the two applicants. 5 BA 333-2011 3. The applicants are not shown to have been involved in any criminal activities in the past. There had been two prior crimes registered at Parbhani and Jalna in 2003 and 2004. Accused Rakesh Dhawade, who was arrested in November, 2008, was shown as accused in those cases, and supplementary chargesheets were filed against him for involvement in crimes at Jalna and Parbhani on 15 th November, 2008 and 13 th November, 2008 respectively. Approval for applying provisions of MCOCA to the present crime was granted on 20 th November, 2008 and this is how applicants have been booked for the offences under the MCOC Act. 4. Apart from deliberation at the meeting, the investigators found that the accused persons had organized an activity for showing how bombs/explosives explode in a jungle near Pune, about which according to the learned counsel for the applicants, evidence 6 BA 333-2011 from villagers is missing. Rahirkar is alleged to have paid for purchase of some arms from the funds of Abhinav Bharat at the instance of Lt. Colonel Purohit. Purohit is supposed to have bragged to a witness and shown him explosive RDX which, he is alleged to have got from some army operation in Kashmir. But at the same time there is also a statement showing Purohit's inability to get RDX. Yet residues of RDX were collected on a cotton swab from Sudhakar Chaturvedi's accommodation at Deolali. The learned counsel for the applicant Purohit contends that this was planted by a police officer who entered the quarters surreptitiously before actual seizure of the residue was made. 5. As far as applicant Ajay Rahirkar is concerned, as treasurer of Abhinav Bharat, he is alleged to have received funds from various quarters including one Jindal and spent it at the instance of Lt. Colonel Purohit for 7 BA 333-2011 purchase of arms and for other activities unconnected with the objectives of the trust, without keeping any accounts and without furnishing the same to statutory authorities. Thus, it is alleged that applicant is involved in unlawful activities. 6. On completion of investigation, both the applicants along with several others have been chargesheeted for offences under various enactments including MCOC Act before the learned Special Judge under MCOC Act at Mumbai. Both the applicants applied for bail before the learned Special Judge. By his order dated 31 st July, 2009 the learned Special Judge held that charges against the applicants under the MCOC Act did not survive and that they would have to be discharged from those offences. He directed that the case be placed before regular Sessions Court and therefore, rejected the applications for bail. 8 BA 333-2011 7. The State challenged the order discharging the accused from offences under MCOC Act before the High Court. A Division Bench of this Court, by Judgment reported as State of Maharashtra Vs. Pragyasinh Chandrapalsinh Thakur & ors, reported at 2010 ALL MR (Cri) 2800 partly allowed the applications by order dated 19 th July, 2010 and directed the Special Judge to decide the bail application expeditiously. Paras 1 and 2 of the Judgment recount charges levelled and states about discharge of accused from charges under the MCOC Act. Paras 3 to 6 refer to the orders passed by the trial Judge. Paras 7 and 8 refer to provisions of the MCOC Act and what constitutes continuing unlawful activity. Para 9 refers to Judgments of Supreme Court upholding constitutional validity of MCOC Act and a Judgment interpreting the term 'unlawful means'. Para 10 deals with scheme of MCOC Act. Para 11 recounts as to how MCOC Act came to be invoked and para 12 refers to the 9 BA 333-2011 findings of the learned Judge of Special Court in the impugned order. Paras 13 to 17 recount arguments advanced. In para 18 the Division Bench limited the scope of its scrutiny in the following words: 18.We make it clear that the scope of these appeals is only limited to examine the issue taking cognizance of the offences by the Chief Judicial Magistrate at Parbhani and his counterpart at Jalna. As far as the merits of the charge under the MCOC Act or other issues covered in the arguments of Mr.Jethmalani and Mr.Lalit are concerned, it would not be expedient to deal with them in these appeals and the prosecution must be given due opportunity to deal with the same before the Special Court as and when such an occasion arises.It was fairly conceded by Mr.Desai,the learned Senior Counsel that even while considering the applications for bail, the Special Court would be justified in examining as to whether the MCOC charges were made out, prima facie, by the prosecution against the accused. (emphasis supplied) 10 BA 333-2011 8. The Division Bench then referred to provisions of Code of Criminal Procedure in para 19, and in para 20 referred to Judgments on the question of taking cognizance and reiterated that a magistrate takes cognizance of an offence and not of an offender. In paras 21 to 24 the Division Bench referred to the orders taking cognizance passed by Chief Judicial Magistrate at Parbhani and Jalna. At the end of para 24 and in paras 25 to 26 the Court concluded as under :- 24...In RCC No.504/06 after the committal order was passed on 11/8/2008, a third charge-sheet was filed on 15/11/2008 against the present respondent no.7, when he was produced before the court and the learned CJM passed the order, Case be registered as RCC No. 648/08 and on 28/11/2008 he passed the following order: Perused the charge-sheet. Prima facie charges are disclosed. Therefore, proceedings started against Rakesh Dhavde under Sections 307, 436, 324, 323, 153-A, 295 of IPC and Sections 3, 4, 5 of the Explosive Substance Act . 11 BA 333-2011 A committal order came to be passed on the very same day in RCC No. 648/08. As per Mr. Shivade the order passed on 28/11/2008 was the very first order taking cognizance and there were no such orders passed either in RCC Nos. 467/06 and 504/06. However, these submissions do not impress us, as the accused had filed an application at Exh.4 specifically praying before the court not to take cognizance of the offence against the added accused i.e. present respondent no.7 and it was under these circumstances that after hearing the parties, the said application at Exh.4 was rejected by the order, which has been relied upon by Mr. Shivade. Hence it cannot be accepted that the order dated 28/11/2008 passed below Exhibit 4 was the only order of taking cognizance. 25. As noted earlier and as is clear from catena of decisions the word taking cognizance includes taking note of and on filing of the charge-sheet at the first instance in both the cases, the court directed the case to be registered as Regular Criminal Case and it is thus clear that in both the cases the respective courts had taken cognizance of some of 12 BA 333-2011 the offences with sentence of three years or more and prior to 20/11/2008. It is pertinent to note that the first charge-sheet filed in RCC No. 504/06, the offences under Section 153-A and 120-B of IPC were included, in addition to the offence punishable under Section 307 of IPC and at the same time, there was no compliance of Section 196 of Cr.P.C. for these two offences i.e. 153-A and 120-B of IPC. This would at the most mean that the cognizance for the offences punishable under Sections 153-A and 120-B read with Section 34 of IPC was not taken by the learned CJM at Jalna on 30/9/2006 or when the first or second charge- sheet was filed. However, the case was committed to the Sessions Court on 11/8/2008 and subsequently on filing of the charge-sheet against the present respondent no.7, the case was registered as RCC No. 648/08 and was committed on 28/11/2008. We are not required to examine the effect of the committal orders passed either before 20/11/2008 or thereafter in both the cases. It is clear that the learned Special Judge was overwhelmed by the fact that there was no approval obtained under Section 196 of Cr.P.C. for taking cognizance of the offences punishable under 13 BA 333-2011 Sections 153-A and 120-B read with Section 34 of IPC. However, that non-compliance by itself would not lead to a conclusion that for the other offences i.e. under Sections 307, 436, 324, 323 read with Section 34 of IPC the court had not taken cognizance. This aspect has not been gone into by the Special Court and, therefore, there is an error apparent in the orders impugned before us. As is the settled legal position, cognizance is taken of an offence and not of an offender. Hence, the learned Special Judge was not right in holding that the competent court was required to take cognizance of the offences against respondent no.7. Cognizance is taken at the initial stage when the very first report under Section 173(2) of Cr.P.C., which is more popularly known as charge-sheet, is submitted and the commission of an offence or offences is disclosed. Thus the view taken by the Special Court by saying, ..... It is clear that as on 20/11/2008 though two charge- sheets were filed against accused  Rakesh Dattatray Dhawade, who is accused no.7 in Crime No. 18 of 2008 registered with Police Station ATS, Mumbai, the 14 BA 333-2011 competent court had not taken cognizance of the offences against him...... is against the well settled legal position and referred to hereinabove. 26. The setting aside of the order of approval dated 20/11/2008 and the sanction order dated 15/1/2009 is consequent to the finding recorded by the Special Court that cognizance was not taken of the offences, against respondent no.7 and more particularly of the offences under Section 153-A of IPC. At the same time, the Special Court thought it fit to invoke powers under Section 11 of the MCOC Act after it quashed and set aside the order of approval as well as the sanction order. Hence, all these consequent orders are required to be quashed and set aside and the Bail Applications would stand restored to the file of the Special Court for being decided afresh on their own merits. 9. This is how the applications came to be placed before the learned Special Judge again. By his order dated 30 th December, 2010, he rejected both the applications. In the 15 BA 333-2011 order rejecting Purohit's application, he discussed in first 56 paras the cases of the parties and arguments advanced. In paras 57 and 58 he dealt with applications by accused, and wife of applicant Purohit for placing certain material before him and rejected those prayers. This material is again sought to be placed before me now. In paras 59 to 67 he succinctly dealt with material in the chargesheet against the applicants. In paras 68 to 74 he dealt with arguments advanced and rejected the application. In the order rejecting Rahirkar's application the learned Special Judge refer to cases of the parties and arguments in the first 53 paras. In para 55 he stated that he was not satisfied that provisions of MCOC Act did not apply. In paras 56 to 62 he recounted the material against the applicant, dealt with the contention raised in the para 63 onwards and rejected the application. 16 BA 333-2011 10. The learned Counsel for the applicants first submitted that since question of applicability of MCOC Act was left open by the Division Bench by para 18 of the Judgment(Supra) to be decided by the Special Judge, and had also held that it could be decided even while considering bail applications, it was incumbent upon the learned Special Judge to consider all aspects of applicability of MCOC Act. He submitted that there was no continuing unlawful activity and therefore, the learned Judge should have held (as he had done earlier) that provisions of MCOC Act did not apply. The learned counsel, therefore, sought to show as to how provisions of MCOC Act were not applicable to the present case. 11. Before dealing with those arguments, the context in which I am required to examine applicability of MCOC Act in the light of Judgment of the Division Bench may be noted. 17 BA 333-2011 The Judgment of the Division Bench shows :- (i) The Division Bench was considering appeals by the State challenging order dated 31 st July, 2009 passed by the learned Special Judge below Exhibit 1 discharging the applicants and others of offences punishable under the MCOC Act. (ii) This order came to be passed because applicability of MCOC Act was questioned not by any special/separate applications, but in bail applications of applicants and others; and the conclusion was reached while considering prayers for bail. (iii) In para 18 the Division Bench found that bail applications could be appropriate stage of dealing with the question of applicability of MCOC Act. (iv) The learned Special Judge had found that when approval for applying provisions of MCOC Act had been accorded on 20 th November, 2008, cognizance of two chargesheets filed on 13 th November, 2008 and 15 th November, 2008 against co-accused Dhawade had not been taken by Courts of Jalna and Parbhani; and the Division Bench decided to restrict itself to the question of taking of cognizance by Courts of Parbhani and Jalna. (v) A learned Senior Counsel for one of the parties had specifically urged the Division Bench that since it was considering appeals under Section 12 of the MCOC Act, all the issues raised could be decided on merits rather than finding out if Courts at Parbhani and Jalna had taken cognizance of the offences before approval under Section 23(1)(a) of MCOC Act was accorded on 20 th November, 2008, as noted by the Division Bench in para 14 of the order. The Division Bench, however, restricted the Judgment to only a part of the 18 BA 333-2011 question raised. (vi) The orders of the Special Judge discharging accused of charges under the MCOC Act were set aside and bail applications were restored for being decided afresh-presumably by again considering the question of applicability of MCOC Act. 12. Since it is trite saying that observations in bail orders are not to be considered at trial, (CENTRAL BUREAU OF INVESTIGATION vs. PRADEEP BHALCHANDRA SAWANT and another, 2007(2)Mh.L.J.(Cri.)885) there is a guarantee that all the questions now being raised would be reagitated again at trial and thereafter in appeals, consuming scarce judicial time. Whether this augurs well for the ideal of speedy justice could be gauged by the fact that what this Court is considering now, towards the end of year 2011, is a prayer for bail made first in the year 2008  3 years ago. I would now briefly note the arguments advanced. 19 BA 333-2011 13. The learned counsel for the applicants submitted that none of the accused chargesheeted in the present crime had any criminal antecedents and none was named as an accused in any chargesheet prior to being arrested in this crime. Accused No.7 Rakesh Dhawade was stated to have been arrested on 2 nd November, 2008. Till then there was no whisper of his involvement in cases registered at Jalna and Parbhani or elsewhere in which chargesheets had already been filed on 7 th September, 2006 and 30 th September, 2006 in respect of incidents dated 21 st November, 2003 at Parbhani and 27 th August, 2004 at Jalna respectively. Those chargesheeted at Parbhani/Jalna included one Yogesh Deshpande- Vidulkar. It was alleged that in July-August, 2003, in a camp held at Sinhagad forest accused No.7 Rakesh Dhawade had trained said Deshpande in handling explosives. Police themselves came to know of Rakesh Dhawade's involvement in training accused Deshpande in 20 BA 333-2011 those blast cases in November, 2008. The learned counsel submitted that applicants and others are alleged to have come together and formed Abhinav Bharat in 2006, much after much after Parbhani/Jalna blasts in 2003-2004. There is nothing on record to show that applicant's knew of Dhawade's complicity (if any) in those blasts. Therefore, according to the learned counsel it could not be said that applicants are involved in any organized crime. 14. According to the affidavit of Shri Ravi Gambhir S/o. Late Ram Lal Gambhir, Deputy Superintendent of Police, National Investigation Agency (NIA), Ministry Of Home Affairs, New Delhi two more supplementary chargesheets have been filed against Rakesh Dhawade in respect of blasts at Purna, District Parbhani in the year 2004 and at Nanded in 2006. 21 BA 333-2011 15. While there can be no doubt that a Court takes cognizance of an offence and not of an offender, the learned counsel for the applicants submitted that this general principle would have to be read in the context of the particular statutory provision which refers to taking cognizance. The learned counsel pointed out that even in para 17 of the Judgment of Supreme Court in Fakhruddin Ahmad Vs. State of Uttarnchal & anr. (2008)17 SCC 157, (quoted by the Division Bench in para 16 of its Judgment) the Supreme Court had observed as under :- It needs little emphasis that it is only when the Magistrate applies his mind and is satisfied that the allegations, if proved, would constitute an offence and decides to initiate proceedings against the alleged offender, that it can be positively stated that he has taken cognizance of the offence. (emphasis supplied) 22 BA 333-2011 16. The Division Bench had also quoted from State of W.B. vs. Mohd. Khalid [(1995) 1 SCC 684] in para 20 of its Judgment. The quote shows that the Supreme Court had observed that in a broad and literal sense, taking cognizance means taking notice of an offence and would include the intention of initiating judicial proceedings against the offender in respect of that offence. 17. I have gone through the Judgment in State of W.B. vs. Mohd. Khalid where provisions of TADA And Explosives Substances Act relating to requirement of a sanction for launching a prosecution were being considered. On 16 th March, 1993 a bomb blast occured at Kolkata in which 69 persons died. FIR was registered on 17 th March, 1993 and obviously sent to the magistrate. Confessional statements were recorded on 7 th April, 1993 and 19 th May, 1993. On 3 rd May, 1993 the Chief Metropolitan Magistrate was informed that 23 BA 333-2011 provisions of TADA were being applied. On 11 th June, 1993 necessary sanction was accorded by competent authority. On 14 th June, 1993 chargesheet was submitted. The proceedings were challenged before the High Court contending that cognizance was taken on 17 th March, 1993 itself, without there being a sanction, and all subsequent proceedings were therefore illegal. The High Court held that TADA had been wrongly applied and cognizance taken on 14 th June, 1993 was not legal(presumably because the High Court believed that there was nothing before the Magistrate on that date to show that sanction had been accorded on 11 th June, 1993). From para 12 to 23 arguments of Shri KTS Tulsi, Additional Solicitor General were noted. In para 24 and 25 arguments of Shri U.R.Lalit, Senior Counsel were recorded. Arguments of Shri Ram Jethmalani, Senior Counsel are noted in paras 26 to 35. The Court then noted as to what amounts to taking cognizance in para 43 24 BA 333-2011 and 44 as under :- 43. Similarly, when Section 20-A(2) of TADA makes sanction necessary for taking cognizance  it is only to prevent abuse of power by authorities concerned. It requires to be noted that this provision of Section 20-A came to be inserted by Act 43 of 1993. Then, the question is as to the meaning of taking cognizance. Section 190 of the Code talks of cognizance of offences by Magistrates. This expression has not been defined in the Code. In its broad and literal sense, it means taking notice of an offence. This would include the intention of initiating judicial proceedings against the offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. The word 'cognizance' indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the