Case: Ranjitsing Brahmajeetsing Sharma Vs. State Of Maharashtra

Jail. Police sub inspector Mr. Hanumansingh Subbalkar (crime branch, Pune Police Commissionerate) was the chief officer appointed to keep the custody of Telgi and party." 76. Therefore, there is some substance in the contention of Mr. Manohar that the Commissioner of Police may not like to interrogate an accused person as regard his political connections, if any, in presence of others, but the line of interrogation was revealed by Telgi immediately after he came out of his chamber. It further appears from the record that even Mushrif had interrogated Telgi exclusively.77. Furthermore, it appears that it is Mushrif who wanted to keep wife, daughter and brother of Telgi out of the chargesheet, as would appear from the statement of Mr. Kishore Eknath Yadav to the following effect: "Names of accused Fathima and Javed were mentioned in the case diary as suspects however full names and addresses of these accused could not be made accused. Because the information is not available against them and they are only servants, such instructions were issued by Addl. Commissioner of police during the time of beginning of the investigation and on other occasions.It was further stated: "Although for the said purpose note was made for seeking written orders, Honourable Additional Commissioner of Police has not made any specific order. Apart from this who should be made accused or not was the primary right of D.C.P. Zone II as per the decision taken by Additional Commissioner of Police and the final decision about the same was to be that of Addl. Commissioner of Police (Order dated 13/6/2002)." 78. Apart from the fact that nothing has been brought on record to show as to how far a report of brain mapping test can be relied upon, the report appears to be vague. It appears, the Respondents themselves did not want to put much reliance on the said report.79. Furthermore, the admissibility of a result of a scientific test will depend upon its authenticity. Whether the brain mapping test is so developed that the report will have a probative value so as to enable a court to place reliance thereupon, is a matter which would require further consideration, if and when the materials in support thereof are placed before the Court.80. In Frye Vs. United States [293 F 1013 (DC Cir) (1923)], the principles to determine the strength of any investigation to make it admissible were stated in the following terms: "Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Some where in the twilight zone the evidential force must be recognized, and while the Courts will go a long way in admitting the expert testimony deducted from a well recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. 81. Frye (supra), however, was rendered at a time when the technology, the polygraph test, was in its initial stage and was used in few laboratories. The guidelines issued therein posed a threat of lack of judicial adaptation of the new developments and ignored the reliability on a particular piece of evidence. 82. A change of approach was, however, found in Daubart Vs. Merryll Dow Pharmaceuticals Inc. [113 Sct 2786 (1993)] where the courts while allowing "general acceptance" stated that this might not be a precondition for admissibility of the scientific evidence, for which the Court may consider the following: (a) Whether the principle or technique has been or can be reliably tested? (b) Whether it has been subject to peer review or publication?(c) Its known or potential rate of error?(d) Whether there are recognized standards that control the procedure of implementation of the technique?(e) Whether it is generally accepted by the Community? And(f) Whether the technique has been introduced or conducted independently of the litigation? 83. In a case involving an issue as to whether on-job-exposure to the manufacturers products promoted small cell lung cancer, the U.S. Supreme Court in General Electric Co. Vs. Robert K. Joiner [522 US 139 L.Ed. 2d] following Daubert (supra), held that in cases involving the issue of expert evidence the appellate court should only consider whether there is any abuse of discretion in admitting such evidence by the trial courts and should not go into reviewing the evidence itself as it is for the trial courts to assume the "gate keepers role" in screening such evidence to ensure whether it is not only relevant but also reliable. This was further expanded in Kumho Tire Co. Ltd. Vs. Carmichael [(1999) 119 S.Ct. 1167] whereby the gate keeping obligation of the Trial Judge to ensure the relevancy and reliability for admitting the evidence extended not only to scientific but also to all kinds of expert evidence. 84. In R. Vs. Watters [(2000) All ER (D) 1469], it was held : "DNA evidence may have a great significance where there is supporting evidence, dependent, of course, on the strength of that evidence.""in every case one has to put the DNA evidence in the context of the rest of the evidence and decide whether taken as a whole it does amount to a prima facie case." 85. As at present advised, thus, and having regard to the fact that the prosecution did not rely upon the said report before the High Court, we also for the purpose of the present matter do not intend to place any reliance thereupon.86. Mr. Manohars contention to the effect that those officers whose conduct was not above board and who did not take any action for attaching the property of the accused and his relations in terms of the Act, have not been made accused, may also be correct. He has further brought to our notice that witnesses have also changed their stand after the Appellant was placed under arrest. At this juncture, it may not be necessary for us to go into details on the aforementioned contention.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]23. MCOCA was enacted to make special provisions for prevention and control of, and for coping with, criminal activity by organized crime syndicate or gang, and for matters connected therewith or incidental thereto.The interpretation clause as regard the expression abet does not refer to the definition of abetment as contained in Section 107 of IPC. It refers to such meaning which can be attributed to it in the general sense with grammatical variations and cognate expressions. However, having regard to the cognate meaning, the term may be read in the light of the definition of these words under Sections 107 and 108 of the Indian Penal Code. The inclusive definition although expansive in nature, "communication" or "association" must be read to mean such communication or association which is in aid of or render assistance in the commission of organized crime. In our considered opinion, any communication or association which has no nexus with the commission of organized crime would not come within the purview thereof. It must mean assistance to organised crime or organised crime syndicate or to a person involved in either of them. It, however, includes (a) communication or (b) association with any person with the actual knowledge or (c) having reason to believe that such person is engaged in assisting in any manner, an organised crime. Furthermore, mens rea is a necessary ingredient for commission of a crime under MCOCA.The expression conspiracy is not a term of art. It has a definite connotation. It must be read having regard to the legal concept which is now well-settled having regard to several decisions of this Court in Kehar Singh and others Vs. The State (Delhi Admn.) [AIR 1988 SC 1883 ], State of Karnataka Vs. L. Muniswamy and others [AIR 1977 SC 1489 ] and P.K. Narayanan Vs. State of Kerala [1995 (1) SCC 142 ].Mens rea, thus, to commit the crime must be established besides the fact of agreement.s rea, thus, to commit the crime must be established besides the fact of agreement.Section 24 of MCOCA must be given a proper meaning. A public servant can be said to have committed an offence within the meaning of the said provision if he (i) renders any help or support in any manner in the commission of an organised crime; (ii) whether before or after the commission of an offence by a member of an organised crime syndicate or (iii) abstains from taking lawful measures under this Act or (iv) intentionally avoids to carry out the directions of any Court or of the superior police officers in this respect.We are furthermore of the opinion that the restrictions on the power of the Court to grant bail should not be pushed too far. If the Court, having regard to the materials brought on record, is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed. The satisfaction of the Court as regards his likelihood of not committing an offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. If such an expansive meaning is given, even likelihood of commission of an offence under Section 279 of the Indian Penal Code may debar the Court from releasing the accused on bail. A statute, it is trite, should not be interpreted in such a manner as would lead to absurdity. What would further be necessary on the part of the Court is to see the culpability of the accused and his involvement in the commission of an organised crime either directly or indirectly. The Court at the time of considering the application for grant of bail shall consider the question from the angle as to whether he was possessed of the requisite mens rea. Every little omission or commission, negligence or dereliction may not lead to a possibility of his having culpability in the matter which is not the sine qua non for attracting the provisions of MCOCA. A person in a given situation may not do that which he ought to have done. The Court may in a situation of this nature keep in mind the broad principles of law that some acts of omission and commission on the part of a public servant may attract disciplinary proceedings but may not attract a penal provision.Every act of negligence or carelessness by itself may not be a misconduct.47. The provisions of the said Act, therefore, must receive a strict construction so as to pass the test of reasonableness.48. Section 21(4) of MCOCA does not make any distinction between an offence which entails punishment of life imprisonment and an imprisonment for a year or two. It does not provide that even in case a person remains behind the bars for a period exceeding three years, although his involvement may be in terms of Section 24 of the Act, the court is prohibited to enlarge him on bail. Each case, therefore, must be considered on its own facts. The question as to whether he is involved in the commission of organized crime or abetment thereof must be judged objectively. Only because some allegations have been made against a high ranking officer, which cannot be brushed aside, may not by itself be sufficient to continue to keep him behind the bars although on an objective consideration the court may come to the conclusion that the evidences against him are not such as would lead to his conviction. In case of circumstantial evidence like the present one, not only culpability or mens rea of the accused should be prima facie established, the Court must also consider the question as to whether the circumstantial evidence is such whereby all the links in the chain are complete.49. The wording of Section 21(4), in our opinion, does not lead to the conclusion that the Court must arrive at a positive finding that the applicant for bail has not committed an offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the Legislature. Section 21(4) of MCOCA, therefore, must be construed reasonably. It must be so construed that the Court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the Court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in future must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence.The wording of Section 21(4), in our opinion, does not lead to the conclusion that the Court must arrive at a positive finding that the applicant for bail has not committed an offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the Legislature. Section 21(4) of MCOCA, therefore, must be construed reasonably. It must be so construed that the Court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the Court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in future must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence.It is, furthermore, trite that for the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail.51. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. However, while dealing with a special statute like MCOCA having regard to the provisions contained in Sub-section (4) of Section 21 of the Act, the Court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction. The findings recorded by the Court while granting or refusing bail undoubtedly would be tentative in nature, which may not have any bearing on the merit of the case and the trial court would, thus, be free to decide the case on the basis of evidence adduced at the trial, without in any manner being prejudiced thereby.56. The High Court, in our considered view, considered the matter from a wrong perspective. Only because the Appellant had the power, the same would not by itself lead to a conclusion that he was a privy to the crime. As regard Mulanis visit to Bangalore, it is accepted that on all occasions he was accompanied by other officers. The purpose of such visit was to have a high level conference so as to enable the Government of Maharashtra to obtain custody of Telgi. On 9.7.2002, Mulani visited Bangalore in the company of the Appellant. On 23.7.2002, he visited in the company of Appellant as also the Additional Chief Secretary, Shri Basak. Those two visits were prior to 6.9.2002. On 11th September, 2002, he went to Bangalore in the company of Shri Sampat Kadam as the case of Telgi was fixed on that day. He is said to have been sent by Shri Mushrif. Dr. Jai Vasantrao Jadhav in his investigation note dated 15.12.The Appellant, therefore, did not suggest the name of Mulani himself. He did so at the instance of Dr. Jadav and that too both by him as also the Joint Commissioner.e Appellant, therefore, did not suggest the name of Mulani himself. He did so at the instance of Dr. Jadav and that too both by him as also the Joint Commissioner.For all intent and purport, the High Court has placed the onus of proof upon the Appellant, which is impermissible.Therefore, there is some substance in the contention of Mr. Manohar that the Commissioner of Police may not like to interrogate an accused person as regard his political connections, if any, in presence of others, but the line of interrogation was revealed by Telgi immediately after he came out of his chamber. It further appears from the record that even Mushrif had interrogated Telgi exclusively.77. Furthermore, it appears that it is Mushrif who wanted to keep wife, daughter and brother of Telgi out of the chargesheet, as would appear from the statement of Mr. Kishore EknathFurthermore, it appears that it is Mushrif who wanted to keep wife, daughter and brother of Telgi out of the chargesheet, as would appear from the statement of Mr. Kishore EknathFurthermore, the admissibility of a result of a scientific test will depend upon its authenticity. Whether the brain mapping test is so developed that the report will have a probative value so as to enable a court to place reliance thereupon, is a matter which would require further consideration, if and when the materials in support thereof are placed before the Court.As at present advised, thus, and having regard to the fact that the prosecution did not rely upon the said report before the High Court, we also for the purpose of the present matter do not intend to place any reliance thereupon.86. Mr. Manohars contention to the effect that those officers whose conduct was not above board and who did not take any action for attaching the property of the accused and his relations in terms of the Act, have not been made accused, may also be correct. He has further brought to our notice that witnesses have also changed their stand after the Appellant was placed under arrest. At this juncture, it may not be necessary for us to go into details on the aforementioned contention.