1 mgj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Criminal Application No. 3990 of 2009 Kamath Dilip Pandurang ) under Trial Prisoner ) Yerawada Central Jail,Pune) ..Applicant vs. 1 Central Bureau of ) Investigation, Kitab ) Mahal, Mumbai ) 2 State of Maharashtra ) (through Bund Garden ) P.S.C.R.No.135/2002) ) ..Respondents Shri S.R.Chitnis, Sr.Counsel i/b Shri Avinash Khamkhedekar for applicant. Shri A.M.Chimalkar i/b Shri Raja Thakore for respondent no.1 Shri H.T.Dedhia, A.P.P. for respondent no.2 Judgment reserved on: 12.11.2009 Judgment pronounced on: 07.12.2009 2 CORAM: S.C. DHARMADHIKARI J. 7th December, 2009 P.C. 1 This application for bail has been placed before me pursuant to an order dated 3rd November, 2009 passed by His Lordship Shri Justice V.M.Kanade. 2 The applicant prays that he be released on bail. He has been arrested in connection with C. R. No.135 of 2002 registered with Bund Garden Police Station, Pune. It is common ground that the applicant is accused no.44 in MCOC Special Case No.2 of 2003 which is pending on the file of the learned Judge for Maharashtra Control of Organized Crimes at Pune. This special case arises out of the said C.R. 3 It is further common ground that the applicant was arrested on 13th June, 2003 and he is in jail since last 6 years and 3 months without trial. He applied for bail before 3 this Court vide Criminal Application No.4319 of 2004 which was rejected by this Court on 30th January, 2006. It is the case of the applicant that on 22nd January, 2008 charges were framed against the applicant in respect of the offences punishable under section 3(2), 3(3),3(4) and sec. 24 of the Maharashtra Control of Organized Crimes Act, 1999 so also section 13(1)(d) of the Prevention of Corruption Act, 1988. It has been the case of the applicant that to challenge the order dated 30th January, 2006 passed by this Court, he had preferred the Special Leave Petition before the Hon ble Supreme Court of India and applied for bail therein. However, eventually, that Special Leave Petition was withdrawn by the applicant with liberty to approach appropriate Court at appropriate time. Thereafter, he applied before the Special Court for bail but even that application came to be rejected on 21st 4 July, 2008. 4 Subsequently, he preferred the second application for bail being Criminal Application No.2670 of 2009 which was also rejected on 10th November, 2008. 5 Thereafter, the applicant applied for bail before the Special Judge trying MCOC special cases and pointing the afore mentioned facts he contended that there are certain circumstances which show that the situation has changed. That is one co-accused Nambiyar who is alleged to have associated with the printing activity of fake stamps was released on bail. The overt-act attributed to the present applicant is less graver than the said co-accused. It was stated that all the police officers in the present case except the present applicant are released on bail. 42 accused who are charged under the provisions of MCOC Act were convicted on the plea of guilty for 5 to 6 years. They were 5 all released on bail as they had completed the period of imprisonment. The present applicant is in jail for 6 years and 3 months. His case is, if not on par, on better footing than that of the co-accused. 6 It was pointed by the applicant/accused that his son Aditya Dilip Kamath and daughter Dipa Dilip Kamat met with an accident on 6th January 2009. Son was seriously injured and was hospitalized but subsequently discharged. Due to accidental injuries his physical condition was critical. He needs further medical attention and treatment. The daughter is of marriageable age. The daughter is having burn injuries from lower lips upto chest and the remedy advised for the same is plastic surgery. However, there is unmarried sister of the applicant who is dependent on the applicant. She is suffering from breast cancer and needs medical aid. For all these reasons the 6 applicant should be released on bail. 7 This bail application filed on 29th April, 2009 was opposed by the prosecution by filing its say. The prosecution urged that there is no change in the situation. Even in the law as laid down in certain judgments, this Court has not taken any different view. The ground of parity also was opposed by stating that the case of the applicant is not on par with the co-accused. 8 The learned Special Judge heard both sides and held that there are no changed circumstances and consequently there is no reason to grant bail. The application was rejected on 9th July, 2009. 9 The applicant made another application for bail before the Special Court on 23rd June, 2009 citing the incident of one Mohd.Sayeed Moh.Yasim (accused no.58 in this case). It is stated by the applicant that this accused is released on bail on 24th 7 June, 2009. This is one more change in the circumstances. The charges against accused no.58 are more grave and serious than the applicant. If the said accused has been granted bail, then, on the principle of parity the applicant should also be granted bail. This application was placed before the learned Special Judge who by his order dated 4th August, 2009 was pleased to dismiss the same. 10 The applicant has again moved this Court seeking bail. The application was filed on 1st September, 2009. It appeared before His Lordship Shri Justice V.M.Kanade who was of the view that earlier application for bail of this applicant having been decided by me even this application should be placed for my consideration. That is how I have heard the same. 11 Mr.S.R.Chitnis, learned Senior Counsel appearing in support of this 8 application, submits that the applicant has made out a case for bail. He submits that the applicant has undergone more than half of the sentence which he would be required to undergo upon conviction and sentence. Further, there are 800 witnesses. The applicant is the only police officer in custody as an undertrial. All other police officers have been enlarged on bail. Further, the trial cannot proceed as in one of the appeals directed against the order of the learned Special Judge, this Court has summoned the record and proceedings of the Special Case. They are transmitted to this Court. Until the appeal pending before this Court is finally disposed off, the record cannot be sent back. For all these reasons and even otherwise on the ground of parity, this is a fit case where the accused should be enlarged on bail. 12 On the other hand, Mr.Chimalkar 9 appearing on behalf of respondent no.1 contended that the affidavit in reply has been filed wherein it is pointed out that the applicant is not the only person in custody facing trial. There are presently 4 accused in all who are in custody. The applicant has filed two previous applications for bail which have been rejected by this Court. He repeatedly approached the trial Court which found no merit in his applications. There is no change in the situation whereby this Court can hold that the applicant is entitled to bail. There is no substance in the contention of the applicant that he cannot be convicted and sentenced in terms of the statutory provisions and one cannot presume that he will only be required to undergo 6 years of imprisonment. The Section under which the offence alleged are committed provides for a minimum and maximum punishment. The maximum punishment can be imprisonment for life. In 10 these circumstances the basis for the application itself is fallacious. Further, merely because two other accused, namely, Dinesh Nambiyar and Mohd. Sayeed Yasim have been released on bail is no ground to release the present applicant. There is no parity in the case of this applicant and Mohd.Sayeed Yasim and Dinesh Nambiyar. In Mohd. Sayeed Yasim s case in the peculiar facts this Court concluded that the application for bail preferred by the said accused was not heard and disposed of on merits. Therefore, there is a change in the situation. Further, the applicant is a police officer and offences committed are much graver and serious than Mohd. Sayeed Yasim. In Mohd. Sayeed Yasim s case this Court on perusal of the record found that the participation of the said accused in the act attributed to the prime accused is not even prima facie proved. Mohd.Sayeed Yasim stopped his business since 11 1994. He came to Mumbai after 15 years in March, 2006. Therefore, in the facts peculiar to his case bail was granted. Therefore, the order in Mohd. Sayeed Yasim s case would be of no assistance to the present applicant. 13 Finally, Mr.Chimalkar submitted that the number of witnesses being large, voluminous documents and the trial not concluding in the near future are all matters which have been argued in the previous application by this applicant and the Court found no merit in them. The Court has held that since the applicant is prima facie guilty of the offences alleged he is dis- entitled from claiming bail. Similarly, in the case of the other accused Manoj Mehta this Court was considering identical arguments. This Court rejected the argument of Mr.Mehta about the trial being delayed and the voluminous record. Mr.Mehta was denied bail and order in that behalf is viewed by 12 the Hon ble Supreme Court as well. In all these circumstances the present application deserves to be dismissed. 14 With the assistance of the learned Counsel appearing for both sides, I have perused the bail application and the reply. It is true that this Court rejected the application for bail preferred by the applicant on 30th January, 2006 in Criminal Application No.4319 of 2004. The applicant challenged that order by filing the Special Leave Petition being SLP (Crim) No.2444 of 2006. That application was placed before a Three Judge Bench of the Hon ble Supreme Court presided over by the Hon ble the Chief Justice of India on 12th December, 2006. The applicant withdrew the application/Special Leave Petition with liberty to move appropriate Court after reasonable time Therefore, the Special Leave Petition was dismissed as withdrawn. Later on the 13 applicant on his own showing applied to the Trial Court for bail but that application came to be rejected on 21st July, 2008. The applicant alleging changed circumstances moved this Court by filing another application for bail being Crim. Application No. 2670 of 2008. That application was placed before me on 10th November, 2008. Identical arguments were canvassed and this Court in its order dated 10th November, 2008 observed thus: 14. The order passed by the Trial Court shows that charges have been framed as far as the Applicant is concerned not only under I.P.C. but under section 3(2), Section 3(3), Section 3(4) and Section 24 of M.C.O.C. Act. Apart from the charges that are framed under the provisions of Prevention of Corruption Act, the Trial Court has observed that there may not be any case as far as the Applicant is concerned of counterfeiting or performing any part of the process of counterfeiting Government Stamps or preparing counterfeiting Government Stamps or any 14 instrument for the purpose of counterfeiting Government stamps apart from sale of the same. Therefore, the Applicant is held not to be prima facie guilty of the offence under section 3(1)(ii) of M.C.O.C. Act. However, the Trial Court has observed that there is enough material to frame charges against the Applicant for abetting and unlawfully facilitating the commission of an organized crime. He has harboured and concealed the members of the organized crime syndicate. He has used his position as a public servant and rendered help and support in the commission of organized crime by the prime accused and his gang. Thus, there is prima facie material about the applicant s involvement in the activities of the organized crime. 15 It is the case of the applicant that when such is the nature of the charges, then, Section 21(4) of M.C.O.C. Act is not attracted. Merely because the charges are framed in the above manner does not mean that the applicant is straightway entitled to bail. There is no change as far as the application of section 21(4) of M.C.O.C. Act to the applicant. In fact, this aspect is not seriously disputed before me. The 15 applicant is not being proceeded presently u/s 3(1)(ii) but other sub sections of Section 3 of M.C.O.C.Act. That means he will still have to make out a case for bail u/s 21(4) of M.C.O.C. Act. Merely because the Trial Court has made some observations in para 50 of its order does not mean that the applicant is entitled to be enlarged on bail. 16 The applicant presented another application for bail after the charges were framed and the Trial Court has rejected the said application. The very grounds which are raised before me were raised before the Trial Court. 17 There is merit in the contention of Mr.Thakare that there are no changed circumstances so as to enable this Court to enlarge the Applicant on bail. If, there were really such circumstances which would enable this Court to take a view that section 21(4) is not applicable, then, possibly this application could have been considered. However, a perusal of the present application for bail demonstrates that the applicant does not dispute that Section 21(4) of the M.C.O.C. Act applies and the present application will also have 16 to be considered on the touchstone of the same. If that was not to be the case, then, the applicant would not have pressed the ground of his prolonged custody and delay in commencement of the trial as changed circumstances. This Court, therefore, held that there are no changed circumstances. The other arguments with regard to delay in commencement of the trial were already dealt with and again dealt with by this Court as is clear from paragraph 26. In these circumstances, it was held that the applicant was not entitled to bail. Thereafter also applicant moved the Trial Court for bail and this application was rejected by the Trial Court on 9th March, 2009. 15 He once again applied for bail on the ground of changed circumstances which application has also been rejected by the Trial Court. 16 To my mind there are no changed 17 circumstances at all. 17 Mr.Chitnis vehemently contended that this Court s judgment in Madan s/o Ramksian Gangwani Vs. State of Maharashtra reported in 2009 All MR (Cri) 1447 was never available to this Court earlier. This Court in the said judgment rendered on 26th March, 2009, has elaborately discussed as to what would constitute offence of organised crime and this judgment is binding upon me. First of all, it must be clarified that the judgment of the Division Bench is rendered in a batch of appeals directed against the final judgment and order of the learned Special Judge in Special Criminal case no.1 of 2000. That was an order of conviction and sentence the pronounced by the learned Judge under the M.C.O.C.Act. In that case, the Court has recorded in paragraph 12 the factual position that the principal witness turned hostile. Further, there are material discrepancies and 18 omissions in the deposition of other witnesses. Thirdly, this Court found on facts that ingredients of the relevant statutory provisions have not been satisfied. How this judgment can be of any assistance to the applicant at this stage is not clear to me at all. Interpretation of the relevant statutory provisions in this judgment is in the context of the facts emerging from the record in that special case and appeal. At the stage of bail it cannot be held that the applicant before me has proved that he cannot be convicted of the offence alleged by the prosecution. On merits, I have already held that record indicates to the contrary. The applicant is prima facie guilty of the offences alleged against him. The judgment in Madan s case is, therefore, of no assistance. 18 Then, Mr.Chitnis placed very heavy reliance on the decision of the Supreme Court in the case of P.Ramchandra Rao Vs. State of 19 Karnataka reported in (2002) 4 Supreme Court Cases 578. The observations in the Supreme Court Constitution Bench decision that the directions in Raj Deo Sharma s case and Common Cause case with regard to enlarging the accused on bail are unaffected can be of no assistance in as much as in that decision the Supreme Court was dealing with the termination of the trial and the proceedings in certain eventualities and not with the right of the accused to be enlarged on bail. Thus, these observations and more particularly paragraph 31 thereof are of no assistance to the applicant. 19 Mr.Chitnis, then, heavily relied upon the decision of the Supreme Court in Chandrakant Patil Vs. State reported in (1998)3 Supreme Court Cases 38. Chandrakant Patil s case was of conviction under sec.5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short TADA). 20 Therein the Supreme Court after concurring with the finding that the first accused, second accused and third accused and accused no.4 Chandrakant are guilty issued notice for enhancement of the sentence of five (5) years R.I. awarded by the Trial Court. That was on the basis that the Supreme Court prima facie held that the sentence is inadequate. Upon issuance of the notice to the accused, the matter was placed before the Supreme Court again. At that stage an argument was raised that the power to enhance the sentence imposed by the Trial Court cannot be equated with the Supreme Court s powers to do complete justice under Article 142 of the Constitution of India. Dealing with that argument, observations in paragraphs 13 to 15 of this judgment have been made. I do not see how the observations are of any assistance to the applicant at this stage. The Supreme Court decided to enhance the sentence but in 21 its opinion the maximum sentence of imprisonment for life was not called for. Therefore, it made a reference to the principle that maximum sentence should be reserved for gravest offences. Thus, none of these observations can be of any assistance to the applicant at this stage. Reliance on this decision is totally misplaced. 20 Finally, Mr.Chitnis relied upon the decision of the Division Bench of this Court reported in 1995(1) Bom.Cases Reporter page 334 Menino Lopez Vs. State of Goa. 21 In Lopez s case the Division Bench was considering the application for bail. During the course of arguments on the application for bail, a contention was raised about other two accused in the same case being released on bail. The Division Bench observed that there cannot be strait jacket formula that the accused must be released on bail, merely because co-accused has been so 22 released but the observation that if the co- accused are otherwise equally placed then the bail cannot be denied to the applicant before the Court. The record before the Division Bench indicated that the allegations as against one accused who had been already released on bail were graver and serious in nature than the applicant before it. Therefore, by relying upon the observations in the Supreme Court decision so also of Division Bench of Calcutta High Court in Kamla Pandey Vs. The King (A.I.R.1949 Calcutta 582), the Supreme Court released the applicant on bail. Once again this decision has no application to the facts efore me and is distinquishable. 20 Before me, a case of the co-accused Moh. Yasim has been pressed into service. Mohd. Yasim had moved the second bail application before this Court. The first bail application was rejected on 25th October, 23 2007. The applicant Mohd. Yasim went to the Supreme Court but withdrew the Special Leave Petition. He withdrew it on a statement that one accused in the special case was enlarged on bail by this Court and another by Special Judge himself. Both these orders are after 25th October, 2007. Therefore, he withdrew the Special Leave Petition with liberty to approach this Court and that is how the second application was placed before the Court. This Court referred to the submissions of the applicant and thereafter in paragraph 16 onwards held that the second application points out the changed circumstances. The changed circumstances are that after charges are framed, three accused persons are enlarged on bail, the case of three persons who are enlarged on bail is on par with Mohd.Yasim. (see paragraphs 21 to 24). In such circumstances and when the Court held that on facts Mohd. Yasim was better placed, 24 that it applied the principle of parity. While observing so, the Court held that the applicant Mohd. Yasim had crossed the age of 60 years. He is senior citizen. However, at the same time the Court held that merely because the trial has not concluded or is not likely to conclude is no ground to release a person on bail when the gravity of offence is prima facie established and is severe. In these circumstances, the applicant Mohd. Yasim was released on bail. Even if the orders passed in Mohd. Yasim s case are subsequent to that of the present applicant, for the reasons that are peculiar to the applicant s case and the charges against him being serious so also his participation being prima facie established, the applicant cannot be released on bail on the ground of parity. 22 Merely because number of witnesses to be examined by the prosecution is large, the record is voluminous is no ground to 25 release the applicant on bail as is observed in my earlier order. Therefore, this is no ground to release the applicant on bail now. 23 For the afore mentioned reasons, I am of the opinion that there is no substance in this application for bail which is made only on the ground of alleged changed circumstances and parity. The contentions based only on these two grounds do not find any favour with me. Successive bail applications of the applicant having been rejected on merits, even this application must fail. It is accordingly dismissed. (S.C.DHARMADHIKARI J.)