:1: IN THE HIGH COURT OF JUDICATURE OF BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3380 OF 2004 Kiran Vasant Achrekar ... Applicant versus State of Maharashtra ... Respondent ... Mr. Harshad Ponda with Mr. Vaibhav Krishna i/by Juris Consillion, for the Applicant. Ms. P.H. Kantharia, A.P.P. with Ms. Rohini Salian, Special P.P. for the Respondent. ... WITH CRIMINAL APPLICATION NO. 4006 OF 2004 Hasmukh Pravinchandra Shah ... Applicant versus State of Maharashtra ... Respondent ... Mr. A.P. Mundargi with Mr. Dipesh Mehta and Mr. S.V. Marwadi, for the Applicant. Ms. P.H. Kantharia, A.P.P. with Ms. Rohini Salian, for the Respondent. ... :2: WITH CRIMINAL APPLICATION NO. 4007 OF 2004 Shirish Madhukar Salvekar ... Applicant versus State of Maharashtra ... Respondent ... Mr. A.P. Mundargi with Mr. Dipesh Mehta and Mr. S.V. Marwadi, for the Applicant. Ms. P.H. Kantharia, A.P.P. with Ms. Rohini Salian, Special P.P., for the Respondent. ... CORAM : A.M.KHANWILKAR,J. 12th October 2004 P.C.: . Heard Mr. Ponda and Mr. Mundargi for the Applicants herein and Ms. Kantharia, A.P.P., for the State. 2. All these three Applications can be disposed of by common Judgment. The Applicant in the respective Application is named as accused :3: Nos. 6, 7 and 8 respectively in the MCOC Special Case No. 3/2003. After their arrest in connection with the said case, in relation to offence under the provisions of the Indian Penal Code and the Maharashtra Control of Organised Crimes Act, 1999 (hereinafter respectively referred to as "the IPC" and "the MCOCA"), they applied to the Designated Court constituted under the MCOCA and Prevention of Terrorists Activities Act, 2000, Greater Mumbai, for bail. That application was filed before the filing of the charge sheet against them, which was, however, rejected by the lower Court by order dated 22nd March 2004. Later on, they made fresh application for being released on interim bail to enable them to attend departmental enquiry initiated against them by their employer - Corporation. The lower Court acceded to the said request and released the Applicants on interim bail by order dated 12th April 2004. Later on, charge sheet has been filed on 23rd April 2004. As the interim bail was for limited duration, the Designated Court by order dated 6th August 2004 called upon the Applicants to surrender. Consequent to the aforesaid development, the :4: Applicants have rushed to this Court by way of present applications. Indeed, during the course of arguments, Counsel appearing for the Applicants stated that the Applicants were only pursuing the relief of regular bail under section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") read with section 21(4) of the MCOCA. In any case, in my recent decision in the case of Anil Umrao Gote v. State of Maharashtra, Criminal Application No. 4023 of 2004, decided on 29th September 2004, I have taken the view that even while granting interim bail, the Court has to record satisfaction that the conditions provided for in section 21(4) of the MCOCA are fulfilled. If those conditions are not satisfied, the bar for releasing on bail operates. In view of the said decision, there is no basis to consider the request for release on interim bail in connection with offence under the MCOCA. Be that as it may, the present Judgment will dispose of the prayer for regular bail as pressed into service on behalf of the Applicants. :5: 3. At one stage, when the hearing of the applications commenced, learned Special Public Prosecutor raised objection that as the Applicants were released on interim bail and have so far not surrendered, the question of hearing applications for relief of bail does not arise. In the context of the said objection, the Applicants appeared in the Court. It was submitted on behalf of the Applicants that since the Applicants accused have appeared in the Court, that may be considered as Applicants having surrendered before this Court and in which case, the Court can legitimately proceed to hear the applications on merits. Reliance was placed on the decision of the Apex Court reported in 1980 Cri.L.J. 426 in the case of Niranjan Singh and another v. Prabhakar Rajaram Kharote and others to buttress this position. In the said decision, the Apex Court had an occasion to consider the purport of expression ‘custody’ and went on to observe that where the accused has appeared and surrendered before the Court, the Court would have jurisdiction to consider the bail application, as the accused would be considered to have been in custody within the :6: meaning of section 439 of the Code.It is observed in the said decision that ‘custody’ in the context of section 439 of the Code is physical control or, at least, physical presence of the accused in the Court, coupled with the submission to the jurisdiction and orders of the Court; and in such a situation, he will be considered to be in judicial custody. Applying the same principle, as the Applicants have appeared and surrendered before the Court, I proceeded with the hearing of these Applications. 4. The Applicant - Accused No. 6 - was the Ward Officer of ‘A’ Ward during the relevant time between 10th January 2002 to 9th August 2002. The Applicant - Accused No. 7 - was the Executive Engineer during the relevant time in Building Proposal Department between 8th December 2002 to 3rd July 2003; and the Applicant - Accused No. 8 - was the Assistant Engineer during the relevant time in the Building Proposal Department from 2nd February 2001 till arrest in March 2004. The charge sheet filed against the Applicants is for offence punishable under section 120-B of the Code read with section 3(2) :7: and 24 of the MCOCA. The relevant portion as applicable to the Applicants herein reads thus : " That you accused No. 6 Kiran Vasant Achrekar, accused No. 7 Hasmukh Pravinchandra Shah and accused No. 8 Shirish Madhukar Salvekar and other officials of Municipal Corporation of Greater Mumbai between the year 2001 and March 2002 have entered into a criminal conspiracy by assisting accused No. 1 Abdul Rehman Abdul Gafoor Shaikh @ Rehman Boss, a member of organized crime syndicate headed by Dawood Ibrahim Kaskar, Iqbal Ibrahim Kaskar and Chhota Shakeel to construct shops illegally at Munim Compound, 16, Saboo Siddique Road, Musafirkhana, Mumbai, namely SAHARA Shoppee with the full knowledge that the property in question belong to Central Public Works Dept., reserved for municipal schools and garage. Further, you above named accused Nos. 6, 7 and 8 being public servants knowingly allowed and facilitated accused No. 1 Abdul Rehman Abdul Gafoor Shaikh @Rehman Boss to construct shops illegally on the plot reserved for municipal garage and municipal schools thereby rendered help and support to the members of organized crime syndicate and thereby committed offences punishable under section 120(B) IPC read with 3(2) and section 24 of MCOC Act, 1999. Secondly, you accused Nos. 6, 7 and 8 in furtherance of aforesaid criminal conspiracy did aid and abate and facilitate accused No. 5 namely Gulam Nabi Ramzan Tanwar, also a member of organized crime syndicate headed by Dawood Ibrahim Iqbal Kaskar and Chhota Shakeel in the illegal construction of shops at Plot No. 9, Saboo Siddiqui :8: Road, namely, Central Ice & Cold Storage, Musafirkhana, Mumbai in the unlawful activities committed by the members of the organized crime syndicate for the pecuniary benefits for yourself and for the members of the organized crime syndicate, inspite of receipt of various complaints of underworld and unlawful activities and illegal constructions from various forums, did not take any action being public servants and rendered help and support by not taking any action in the commission of organized crimes with full knowledge and thereby committed offences punishable under section 120(B) IPC read with 3(2) and section 24 of MCOC Act, 1999." However, during the course of arguments, it was argued that the Applicants are not concerned with the charge ‘Secondly’, as it pertains to illegal construction of shops at Plot No. 9, which happened in the year 1998. In that sense, the core issue that needs to be considered by this Court is whether there is sufficient material on record to form an opinion that there are reasonable grounds for believing that the Applicants are not guilty of offence under section 3(2) read with section 120-B and that they are not likely to commit any offence while on bail. The fulcrum of the prosecution case as against the Applicants is that they, along with the other officials of the Municipal Corporation, :9: entered into a criminal conspiracy by assisting accused No. 1, who was the member of organized crime syndicate, headed by Dawood Ibrahim Kaskar, Iqbal Kaskar and Chhota Shakeel, to construct shops at Munim Compound with the full knowledge that the property in question belonged to Central Public Works Department reserved for municipal schools and garage and that being public servants, knowingly allowed and facilitated accused No. 1 Abdul Rehman Abdul Gafoor Shaikh @ Rehman Boss to construct shops illegally on the plot reserved for municipal schools and garage, thereby rendered help and support to the members of the organized crime syndicate. It is on this allegation the Applicants are involved in the offence punishable under section 120-B of the Code read with section 3(2) of the MCOCA. The prosecution case is that each of the Applicant knowingly abdicated his duties which enabled the construction of shops illegally on the subject plot. The prosecution has relied on the circumstances, such as complaints made by Forum for Justice to the Municipal Commissioner and Chief Engineer, Vigilance; by one Babita Pawar, Office-bearer of Shiv Sena, addressed to the :10: Deputy Engineer, Building Proposal Department of ‘A’ Ward; another complaint addressed to the then Chief Minister. It is alleged that inspite of several complaints highlighting construction of shops illegally, no corrective steps were taken by the Applicants herein coupled with the fact that the Applicants provided incorrect information to the Joint Municipal Commissioner during his visit on the site and that the accused No. 6 made a report that no action was pending. It is the prosecution case that the Applicants were fully aware about the unauthorised construction carried on the site and had facilitated such construction activity. It is alleged that accused No. 6 reiterated the position that the construction on the site was undertaken as per the approval of Building Proposal Department. Besides the complaints referred to above, the prosecution has relied on the statements of witnesses implicating the Applicants. The affidavit in reply filed before this Court adverts to the gist of the statements given by the respective witnesses. The prosecution case is that the property on which the illegal construction activity was permitted :11: belonged to the C.P.W.D., which was rented to one Momin in the year 1939. The said Momin had expired in the year 1979. It is alleged that accused No. 1 Abdul Rehman @ Rehman Boss at the instance of accused No. 3 Iqbal Kaskar and his brother Dawood Ibrahim Kaskar illegally acquired the same. It is alleged that the Crime Branch has recorded the conversation between accused No. 3 and accused No. 2 and accused No. 5 and others, after taking due authorisation from the Additional Chief Secretary (Home) in the interest of public safety and to prevent incitement of offences under section 5(2)of the Indian Telegraph Act. It is the prosecution case that the prime accused have forcibly dispossessed the occupants and/or forcibly acquired the premises from them (occupants) by threatening and using the names of Chhota and Bada, referring to Chhota Shakeel and Dawood Ibrahim Kaskar. It is not necessary to dilate further on this aspect, because, for the present, we are concerned only with the involvement of accused Nos. 6, 7 and 8, who are the officials of the Greater Mumbai Municipal Corporation. Insofar as their role is concerned, the prosecution alleges that no new :12: construction could have been permitted on the subject land. It is alleged that, in fact all concerned officials, in the Corporation were aware that the premises were reserved for municipal schools and garage, and, in fact, possession thereof was offered to the Corporation, but the Corporation insisted for vacant possession. In such a situation, there was no question of permitting any construction activity on the said land at the instance of the Corporation. It is alleged that inspite of this position, the proposals submitted were entertained by the concerned officials which involved the Applicants herein. Besides, the proposal was only to carry out necessary repairs to the existing structures. Assuming that such a proposal could be legitimately entertained, it is the prosecution case that on the site, what has been allowed is construction of a new complex and not repairs to the existing structures as such. This was allowed to be done only because the concerned officials of the Corporation including the Applicants herein facilitated the same with the knowledge of the involvement of accused No.1 and other members of the organized crime :13: syndicate. Inspite of that, the officials issued completion certificate and turned a Nelson’s eye to the unauthorised structures on the subject plot. The prosecution also relies on the circumstance that during the house search of the Applicant -accused No. 8 - unaccounted wealth of around Rs. 29 lakhs was recovered. The prosecution case against the present Applicants hinges upon the various circumstances including the complaints made by several persons from time to time inspite of which no corrective measures were taken, thereby allowing construction of unauthorised complex on the subject plot. It is the prosecution case that besides unauthorised structures erected on the subject plot, the officials of the Corporation conveniently overlooked the change of user of storage without approval of the competent authority, and, at present, there are about 370 illegal shops and 70 godowns on the site. 5. On the other hand, according to the Applicants, there is no material on record to show any connection of the Applicants with the organized crime syndicate or any member of the :14: organized crime syndicate or that the Applicants have continued association with the member of organized crime syndicate with knowledge of their activity and facilitated such activity. According to the Applicants, there is no material to show that the Applicants at any point of time were party to the unlawful activities of the organized crime syndicate in respect of using force or getting the property vacated or any such act committed by them before the file regarding the proposal submitted was processed by the Applicants or thereafter. The Applicants further submit that the proposal was submitted by the Architect, Rais & Co., at the instance of M/s. Global Marketing, who had authority to do so in terms of the Deed of Assignment executed by the original lessee. According to the Applicants, they had no reason to suspect the bona fides of the proposal submitted through the Architect, as it was supported by relevant documents. Moreover, it is contended that the Applicants had no connection with the prime accused, but the proposal was processed only by the Architect with whom they had occasion to interact in relation to the proposal. It is the case of the Applicants :15: that there is no material to show that any communication was entered by the Applicants herein directly with the members of the organized crime syndicate or, for that matter, accused Nos. 1 or 2 on the one hand and the Applicants on the other. The Applicants further contend that there is no material on record to show that the Applicants had knowledge of illegal activities of members of the organized crime syndicate. On the other hand, the Applicants were associated only with legal process of examining the proposal submitted by the Architect, Rais & Co., and each of the Applicants has discharged his duties as was required by the extant norms, notifications and circulars issued by the Corporation from time to time. Insofar as the unaccounted wealth recovered during the house search of Applicant - accused No. 8, is concerned, it is contended that there is no material on record to show that the said unaccounted wealth, which was recovered at the instance of the Applicant - accused No. 8, was in relation to any act of commission or omission regarding the unauthorised or illegal shops constructed or for showing any favour to the members of the organized crime syndicate. :16: 6. In support of the above submissions, the learned Counsel appearing for the Applicants took me through the relevant documents on record filed along with the charge sheet as well as the relevant circulars. These are the broad submissions canvassed before me to contend that there is no material to connect any of the Applicants with the alleged offences. 7. Before I proceed to examine whether there are reasonable grounds for believing that the Applicants are not guilty of the alleged offence, I shall first deal with the technical argument canvassed on behalf of the Applicant - Accused No. 6. Mr. Ponda contends that this Applicant was arrested on 27th January 2004 and was in custody till released on interim bail. He submits that charge sheet has been filed on 23rd April 2004, which is well within the statutory period of 180 days, which was to expire on 26th July 2004. However, he contends that as no sanction was accorded by the appropriate authority under section 197 of the Code before :17: the expiry of 180 days, it was not open to the Designated Court to take cognizance of the offence against the said Applicant. It is his submission that by operation of law, as the Designated Court could not have taken cognizance of the offence against the Applicant - Accused No. 6, it would necessarily follow that after expiry of period of 180 days, on 26th July 2004, the Designated Court had no jurisdiction to order remand of the Applicant -Accused No. 6. According to Mr. Ponda, as the charge sheet was already filed, it was not a case under section 167 of the Code; and as no sanction was accorded, within the statutory period of 180 days, the Designated Court could not have invoked powers under section 309 of the Code. To buttress these submissions, reliance is placed on the decision of the Apex Court in the case of Natabar Parida and others v. State of Orissa, reported in 1975 Cri.L.J. 1212. Reliance is also placed on another decision of the Apex Court in the case of State of H.P. v. M.P. Gupta, reported in 2004 S.C.C. (Cri) 539. This submission, however, clearly overlooks the fact that the Applicants including Accused No. 6 are :18: implicated in offence punishable under section 120-B of the Code, one of conspiracy, and facilitating and assisting the organized crime syndicate to carry on unlawful activities. That act by no stretch of imagination can be part of the official duty warranting sanction under section 197 of the Code. It is well settled that when the charge is one of conspiracy or aiding any offence, sanction is not necessary. In any case, the Public Prosecutor has rightly placed reliance on the decision of the Apex Court in the case of Kalpnath Rai v. State (Through CBI) reported in (1997) 8 S.C.C. 732, wherein it is held that once cognizance of any offence under TADA has been taken validly by the Designated Court with a proper sanction, the Court is not disabled from convicting an accused for any other offence proved during the trial, whether or not sanction has been accorded in respect of such other offence. Reliance has also been placed on the decision of our High Court in the case of II (1993) CCR 1419 in the case of Biju Varghese & ors. v. The State of Maharashtra, which, in turn, relies upon the decision of the Apex Court in the case of Kishun Singh & ors. v. State of :19: Bihar, JT 1993 (1) S.C. 173. It has been observed by the Apex Court that it is essential to bear in mind that "cognizance is in regard to the offence and not the offender." Even in the present case, the cognizance of offence under the special enactment is already taken by the Designated Court. Merely because no sanction in respect of accused No. 6 is forthcoming, that cannot be the basis to hold that the Designated Court has no jurisdiction to remand the accused No. 6 in exercise of powers under section 309 of the Code, especially when the offence is not one relating to any discharge of official duties, which alone would warrant prior sanction. In any case, the learned Public Prosecutor, during the course of arguments, has placed on record order issued by the appropriate authority, namely, the Commissioner of Municipal Corporation dated September 21, 2004, in which it is rightly mentioned that the Applicants are employees of the Municipal Corporation of Greater Mumbai removable from office by the Municipal Corporation and/or by the Municipal Commissioner and not by the State Government, for which reason it is not necessary to accord sanction by him, :20: though the said officers would fall within the ambit of "public servant" as defined under section 21 of the Code. Even for this reason, the argument as canvassed before this Court regarding illegal continuation of accused No. 6 in custody does not commend to me. 8. The other technical objection that needs to be addressed is that during the course of hearing before this Court, the Public Prosecutor requested to allow her to rely upon the confessional statement of co-accused No. 9 Tariq Parveen recorded on 13th August 2004. In other words, this stated confessional statement has been recorded after filing of the charge sheet as against the Applicants, including accused No. 6. Two contentions have been advanced. Firstly, once charge sheet is filed, it is not open to the investigating agency to proceed with further investigation unless permission of the concerned Court is obtained under section 173(8) of the Code. Secondly, it is contended that the said document (confessional statement) is not part of the charge sheet and cannot be taken into account by this Court while considering the prayer for :21: bail of the Applicants. Both these objections are refuted by the learned Public Prosecutor. Insofar as the first objection is concerned, the learned Public Prosecutor submits that even if charge sheet has been filed, that does not preclude the investigating agency to continue with the further investigation. At best, it is desirable that the police should inform the Court and seek formal permission to make further investigation. To buttress this submission, reliance is placed on the decision of the Apex Court in the case of Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwandadha Maharaj v. State of Andhra Pradesh and others, 1999 Cri.L.J. 3661. In para 10 of this decision, the Apex Court has observed that power of the police to conduct further investigation after laying final report is recognised under section 173(8) of the Code. It is further observed that even after the Court takes cognizance of any offence on the strength of police report first submitted, it is open to the police to conduct further investigation. The only rider provided is that it would be "desirable" that the police should inform the Court and seek formal permission to :22: make further investigation. This decision also takes the view that the accused need not be heard before the Court grants such permission for investigation or further investigation under section 173(8) of the Code. Reliance is also placed on the decision in the case of Ram Lal Narang v. State (Delhi Admn.) reported in A.I.R. 1979 S.C. 1791. This decision has been considered in the subsequent judgment of the Apex Court in Sri Bhagwan Samardha, etc.’s case (supra). Reliance was placed on the decision in Ram Lal Narang’s case (supra) on the dictum in para 18, which,