AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.18 OF 2009 Govind Sakharam Ubhe, aged 49 years, residing at 37/40, Manish Nagar, Four Bungalow, Andheri (West), Mumbai – 400 053. ) ) ) ) ... Appellant Vs. The State of Maharashtra (At the instance of DCB, CID, Unit IV, Mumbai). ) ) ) ... Respondent Mr. Amit Desai, senior counsel with Mr. Prakash Naik and Mr. Gopalkrishnan Shenoy for the petitioner. Mr. S.R. Borulkar, Public Prosecutor with Ms. V.R. Bhonsale, A.P.P. for the State. CORAM : SMT. RANJANA DESAI & R.G. KETKAR, JJ. DATE ON WHICH THE JUDGMENT IS RESERVED : 9TH APRIL, 2009. DATE ON WHICH THE JUDGMEMT IS PRONOUNCED : 11TH JUNE, 2009. JUDGMENT.:- (Per Smt. Ranjana Desai, J.) 1. Rule. Rule made returnable forthwith. Respondent AJN 2 waives service. By consent of the parties, taken up for hearing and final disposal. 2. The appellant is original accused 8 in MCOC Special Case No. 8 of 2007 pending in the Special Designated Court constituted under the Maharashtra Control of Organized Crime Act, 1999 (“the MCOC Act” for short). 3. It is necessary to begin with the prosecution case. The prosecution case rests on the evidence of two witnesses. They are referred to as Mr. `X’ and Mr. `Y’ so as not to disclose their identity. It is the case of Mr. `X’ that on 8/10/2006 he received a telephone call from an unknown person who introduced himself as Guru Satam. He stated that he and his associates are required to be paid Diwali. After two days, Mr. `X’ received another call from one Raju threatening him of dire consequences and demanding money. After a few days the said person again gave a telephone call from overseas telephone number and asked Mr. `X’ to contact Guru Satam on the AJN 3 said phone. Thereafter he received a call from a person who identified himself as Guru Satam and demanded money and threatened him of dire consequences if the demand was not fulfilled. Mr. `X’ apprehended danger to his life. He approached Anti Extortion Cell of DCB CID Mumbai and informed them about the incident. His statement was recorded by the police. It was treated as First Information Report. During the investigation other accused came to be arrested on 7/12/2006, 8/12/2006 and 16/12/2006. It was revealed that the accused and their associates in India and abroad are members of organized crime syndicate headed by accused Guru Satam and they are indulging in commission of extortion by threatening the builders, who undertake development work under the Slum Rehabilitation Scheme. AJN 4 Prior approval to apply provisions of the MCOC Act was accorded by the Joint Commissioner of Police on 18/12/2006 and thereafter the provisions of the MCOC Act were applied to the case on 18/12/2006. The appellant was arrested on 29/12/2006. During investigation, it was revealed that the appellant had taken active part in continuing unlawful activities and commission of organized crime on behalf of organized crime syndicate headed by accused Guru Satam. The investigation further revealed that the appellant had taken part in the negotiations of the extortion amount from a witness and he had accepted the amount on behalf of the syndicate. The appellant actively participated and facilitated in continuing the unlawful activities and commission of the organized crime in pursuance to a deep rooted conspiracy. On completing the investigation the charge sheet was submitted before the Special Court on 25/4/2007 against all the accused. On 8/9/2007, learned Special Judge released the appellant AJN 5 on bail. On 30/3/2009 the Special Court framed the charge under Section 3(2) read with Section 3(1)(ii) and 3(4) of the MCOC Act against the appellant. 4. The appellant filed an application for discharge before the Special Court. By the impugned order the said application was rejected. Hence the appellant has filed the present appeal challenging the said order. 5. We have heard Mr. Amit Desai, learned senior counsel appearing for the appellant at some length. Mr. Desai submitted that the Special Court erred in dismissing the application for discharge filed by the appellant. He submitted that the appellant is involved in the present case on account of business rivalry. The present prosecution is a malafide prosecution. Learned counsel submitted that the entire case of the prosecution rests on statements of two witnesses. Mr. Desai took us through those statements and submitted that they do not show that the appellant is a part of the organized crime AJN 6 syndicate and he is involved in their activities of giving threats or collecting money, etc. There is no evidence to indicate that the appellant is involved in the alleged deep rooted conspiracy. The statements indicate that the appellant only wanted to help his colleague in business, who was in distress. He wanted to ensure that the matter is settled and Mr. 'X' is relieved of threats of extortion. On the basis of such evidence according to Mr. Desai, the appellant cannot be charged for offences under the stringent provisions of the MCOC Act. Mr. Desai further submitted that approval under Section 23(1)(a) was accorded on 8/12/2006. In that approval the appellant’s name does not figure. Mr. Desai submitted that even if this challenge is not specifically raised in the trial court or in this court, the contention of the appellant that the evidence collected by the accused does not make out an offence under the MCOC Act against him, covers this plea. 6. Mr. Desai drew our attention to Section 2(1) (a) which defines the word 'abet'. Relying on the judgment of AJN 7 the Supreme Court in Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra & Anr., 2005 ALL MR (Cri.) 1538 (S.C.). Mr. Desai submitted that the case of the prosecution that the appellant abetted the crime must also fail. He submitted that abetment involves mensrea, knowledge and intention. He submitted that the offence under Section 3(2) of the MCOC Act must have a direct nexus with the offence committed by an organized crime syndicate. and abetment of commission of offence must be by way of accessories before the commission of an offence. Mr. Desai submitted that such is not the case here and hence charge of abetment cannot be sustained. 7. Mr. Desai then submitted that Section 2(1)(d) of the MCOC Act defines continuing unlawful activity. This provision requires that an activity can be a continuing unlawful activity if it is prohibited by the law for the time being in force which is a cognizable offence punishable with imprisonment of three years or more undertaken AJN 8 either singally or jointly as a member of organized crime syndicate or on behalf of such syndicate in respect of which more than one charge sheet have been filed before a competent authority within the preceding period of 10 years and that court has taken cognizance of such offence. Mr. Desai submitted that so far as the appellant is concerned except the present complaint no other charge sheet is filed against him. Therefore, submitted Mr. Desai, provisions of the MCOC Act could not have been used against the appellant. 8. In this connection he relied upon the judgment of the Supreme Court in State of Maharashtra & Ors. v. Lalit Somdatta Nagpal & Anr., 2007 Cri. L.J. 1678 and judgments of learned Single Judges of this court in Sherbahadur Akram Khan & Ors. v. State of Maharashtra, 2007 (1) BCR (Cri.) 26 and State of Maharashtra v. Bharat Baburao Gavhane & Ors., 2007 Cri. L.J. 552. Reliance was also placed on the judgment of the Division Bench of this court in Bharat AJN 9 Shantilal Shah v. State of Maharashtra, 2003 All MR (Cri.) 1061. 9. On the scope of Section 227 of the Code of Criminal Procedure, 1973 (for short, “the Code”), Mr. Desai relied on the judgment of the Supreme Court in Dilawar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135. He submitted that while considering an application for discharge under Section 227 of the Code, if the court finds that two views are equally possible and the evidence gives rise to some suspicion but not grave suspicion against the accused, the court will be fully justified in discharging the accused. Mr. Desai submitted that if this case is viewed in the light of the settled principles underlying Section 227 of the Code, the impugned order will have to be set aside and the appellant will have to be discharged. 10. Mr. Borulkar, learned Public Prosecutor, on the other hand, submitted that the statements of Mr. `X’ and Mr. `Y’ AJN 10 are sufficient to establish the appellants' connection with the organized crime syndicate and his involvement in its activities. Mr. Borulkar submitted that the appellant knew Guru Satam. He facilitated the exchange of extortion amount. He was present when the money was exchanged. His case that he wanted to help Mr. `X’ is a tissue of lies. 11. Mr. Borulkar relied on the judgment of the Supreme Court in Vinod Asrani v. State of Maharashtra in Special Leave Petition (Cri.) No.6312 of 2006 decided on 21/2/2007 in support of his submission that because the appellant's name is not mentioned in the approval order, that does not vitiate the prosecution. Mr. Borulkar submitted that in any case, the appellant has not raised any challenge to approval, at any stage. He cannot be now allowed to raise it. 12. Mr. Borulkar submitted that the appellant's case that because there is only one case registered against him, his AJN 11 case is not covered by Section 2(1)(d) of the MCOC Act must be rejected because Section 2(1)(d) refers to registration of more than one charge-sheet against the organized crime syndicate and not against individual member of the organized crime syndicate. He submitted that in Lalit Nagpal's case, this point was not raised and, hence, the Supreme Court has not dealt with it. The said judgment must be confined to its own peculiar facts. There, the cases registered against the accused were under the Essential Commodities Act and the Supreme Court ultimately came to a conclusion that the only offence registered against the accused was one under Section 63 of the Sales Tax Act. The Supreme Court expressed that Section 63 of the Sales Tax Act would not attract the provisions of the MCOC Act. Mr. Borulkar submitted that therefore, the said judgment will not be applicable to the present case. Mr. Borulkar relied on a judgment of this court in Criminal Appeal No.749 of 2007 decided by this court (R.M.S. Khandeparkar and V.K. Tahilramani, JJ.) decided on 16/10/2007 AJN 12 where this court has referred to Sherbahadur Akram Khan's case and observed that once it is disclosed that a person is a member of the organized crime syndicate and the offence is part of the continuing unlawful activity by the organized crime syndicate, then charge-sheet referred to in Section 2(1)(d) refers to organized crime syndicate. 13. As regards the scope of Section 227 of the Code, Mr. Borulkar relied on the judgments of the Supreme Court in State of Bihar v. Ramesh Singh, AIR 1977 SC 2018 and State of Maharashtra v. Priya Sharan Maharaj & Ors. (1997) 4 SCC 393. Mr. Borulkar submitted that, at this stage, the court is not required to undertake an elaborate enquiry and record a finding regarding guilt or otherwise of the accused. If there is a strong suspicion about the involvement of the accused, it is not open to the court to discharge him. Mr. Borulkar submitted that in this case, there is enough indication in the statements of Mr. `X’ and Mr. `Y’ that the accused is a part of the AJN 13 organized crime syndicate and is actively participating in its illegal activities and, therefore, the appeal deserves to be dismissed. 14. Before we deal with the rival submissions, we must ascertain what is the scope of Section 227 of the Code which provides for discharge. In several judgments, the Supreme Court has outlined the scope of Section 227 of the Code. We shall refer to a few of them. 15. Section 227 of the Code reads as under : 227.Discharge. - If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. 16. In State of Bihar v. Ramesh Singh (1977) 4 SCC 39, while referring to Section 227 of the Code, the Supreme Court observed : AJN 14 “At that stage, the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of the suspicion cannot take the place of proof of his guilt at the conclusion of the trial. But if at the initial stage, if there is a strong suspicion, which leads the Court to think that there is a ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused”. The Supreme Court further observed that - “If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial”. The Supreme Court then went on to observe - “If the scales as to the guilt or innocence of the accused are even at the conclusion of the trial, then on the theory AJN 15 of benefit of doubt the case must end in the acquittal of the accused; but if, on the other hand, the scales are even at the initial stage of making an order under section 227 or section 228, then in such a situation, ordinarily and generally the order will have to be made under section 228 and not under section 227.” 17. In Union of India v. Prafulla Kumar Samal, AIR 1979 SC 366, the Supreme Court reiterated the same principles but added that at the stage of Section 227 of the Code, the Court has power to sift and weigh the evidence to find out whether there is prima facie case against the accused but if two views are equally possible and the Judge is satisfied that the evidence gives rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. The Supreme Court further observed that the Judge cannot act as a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence, any basic infirmities in the case and so on. The Supreme Court clarified that this however does not mean that the Judge should make a AJN 16 roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. 18. In Superintendent & Remembrancer of Legal Affairs, West Bengal v. Anil Bhunja & Ors. AIR 1980 SC 52, the Supreme Court observed that the standard test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise is not exactly to be applied at the stage of Section 227 or Section 228. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charges against the accused in respect of the commission of that offence. 19. Same principles were reiterated by the Supreme Court in Niranjan Singh Karam Singh Punjabi v. Jiendra Bijja & Ors. AIR 1990 SC 1962. AJN 17 20. In State of Maharashtra & Ors. v. Som Nath Thapa & Ors. (1996) 4 SCC 659, the Supreme Court observed that if there is a ground for presuming that the accused has committed the offence, it can be said that a prima facie case has been made out against the accused. Even if the court finds that the accused might have committed the offence, it can frame the charges. The Supreme Court clarified that at the stage of framing of charge, probative value of the materials on record cannot be gone into. 21. In State of Maharashtra v. Priya Sharan Maharaj & Ors. AIR 1997 SC 2041, the Supreme Court again reiterated that at the stage of framing of the charge, the court has to consider the material with a view to finding out if there is ground for presuming that the accused has committed the offence or that there is not sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not AJN 18 likely to lead to a conviction. 22. In Dilawar Kurane's case (supra), the Supreme Court extensively quoted observations made by it in Prafulla Kumar Samal's case and reiterated the same principles. 23. It is also necessary to refer to the Supreme Court's judgment in the State of Karnataka v. L. Muniswamy & Ors. (1977) 2 SCC 699. In that case, some of the accused were discharged by learned Session Judge under Section 227 of the Code. So far as the other accused were concerned, learned Sessions Judge adjourned their case for framing charges against them. Two revision petitions were filed against this order. These petitions were allowed by the Karnataka High Court on the view that there was no sufficient ground for proceeding against them. It is clear from the first paragraph of the Supreme Court judgment that the High Court had, in exercise of its powers under Section 482 of the Code, quashed the AJN 19 proceedings initiated by the State of Karnataka. Being aggrieved by this judgment, the State of Karnataka approached the Supreme Court. The Supreme Court referred to Section 227 of the Code and observed that the High Court is entitled to go into the reasons given by the Sessions Judge in support of his order and to determine for itself whether the order of discharge is justified. The Supreme Court then referred to Section 482 of the Code and observed that in exercise of the wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The Supreme Court further observed that this power is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. The following observation of the Supreme Court needs to be quoted. AJN 20 “In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.” 24. It is significant to note that when the attention of the Supreme Court was drawn to the judgment in R.P. Kapur v. The State of Punjab, AIR 1960 SC 866 to the effect that in its inherent jurisdiction, the High Court cannot embark upon an enquiry as to whether the evidence in the case is reliable or not, the Supreme Court reaffirmed this position and referring to the facts before it observed that in that case, there was no material on record on the basis of which any court can reasonably come to the AJN 21 conclusion that the accused were in any manner connected with the crime. Of course, in this case, the Supreme Court has also referred to Section 227 of the Code and observed that in exercise of this power, the court can determine the question whether the material on record if unrebutted is such on the basis of which a conviction can be reasonably possible. But, it must be remembered that primarily the Supreme Court was dealing with the High Court's power under Section 482 of the Code and that was a case where there was no material to reasonably connect the accused with the crime. Undoubtedly, the powers of the High Court under Section 482 of the Code are very wide and as observed by the Supreme Court, it has to consider ends of justice and not the ends of mere law. In any case, what the Supreme Court has said in this judgment does not go counter to what it has said on this point in a line of judgments, which we have referred to hereinabove. 25. The principles laid down by the Supreme Court in the AJN 22 above cases need to be summarized. It is settled law that at the stage of Section 227 of the Code, the court has power to sift the materials collected by the prosecution to find out whether there is prima facie case against the accused or not. The court has to be satisfied that there is ground for presuming that the accused has committed the offence or that there is no sufficient ground for proceeding against him. The Court's enquiry must not be directed to find out whether the case will end in conviction. However, though roving enquiry is not permissible, the court can consider whether the material collected by the prosecution if accepted as it is without being subjected to cross-examination gives rise to strong and grave suspicion for presuming that the accused has committed the offence and that unrebutted material will lead to a conviction. If at the stage of Section 227 or Section 228, the scales as to the guilt or innocence of the accused are even then the court must proceed to frame a charge. There is no question of giving benefit of doubt to the accused and discharge the accused at that stage AJN 23 because the scales are even. That can be done only at the conclusion of trial. If there is a strong suspicion which leads the court to think that there is a ground for presuming that the accused has committed an offence, then the court will proceed to frame the charge. But if two views are possible and the court is satisfied that the evidence gives rise to some suspicion but not grave suspicion against the accused, the court will be within its right to discharge the accused. Suspicion has to be strong and grave suspicion leading the court to presume that the accused has committed an offence. While basic infirmities and broad probabilities can be considered, the court cannot make a roving enquiry into the pros and cons of the matter and weigh the evidence as if it is conducting a trial. Probative value of the material cannot be gone into at that stage. 26. We will examine the present case in the light of the above principles. Since the case of the prosecution qua the present appellant rests basically on the statements of AJN 24 two witnesses, that