Prasad Shrikant Purohit vs State Of Maharashtra & Anr

The appeals arising out of SLP (Crl.) No.9370-71/2011 have also been preferred by the very same appellant, namely, Lt. Col. Prasad Shrikant Purohit challenging the common order passed in Criminal Bail Application No.333 of 2011 with Criminal Application No.464 of 2011 along with Criminal Application No.556 of 2011 dated 9th November 2011 by the learned Single Judge of the Bombay High Court. By the said order the learned Judge allowed the Criminal Application No.556 of 2011 filed by Ajay Ekanath Rahirkar by granting him bail by imposing certain conditions. In the case of appellant herein, the challenge made in Criminal Application No.464 of 2011 was the order of the Special Judge after the order of remand passed by the Division Bench dated 19.07.2010. The Special Judge by the order dated 30.12.2010 rejected the appellant's application for bail. The learned Single Judge after detailed discussion, dismissed the Criminal Bail Application No.333 of 2011 as well as Criminal Application No.464 of 2011 by the order impugned in these appeals.

The appeal arising out of SLP (Crl.) No.9303/2011 is preferred by one Sudhakar Dhar Dwivedi and Ramesh Shivji Upadhyay challenging the order dated 20.10.2011 of the learned Single Judge of the Bombay High Court. By the said judgment, the learned Single Judge declined to interfere with the order of Special Judge in Misc. Application No.98/2011 permitting police custody to the first respondent, namely, National Investigation Agency (NIA) for 8 days from 22.07.2011 up to 30.07.2011. In fact, the said case was originally investigated by ATS and final report was submitted on 30.01.2009 and supplementary charge-sheet vide MCOCA No.8/2011 was filed on 21.4.2011. Thereafter by order dated 1.4.2011 of the Ministry of Home Affairs, Government of India, investigation was transferred to NIA and an FIR was registered as Crime No.5/2011 by police station NIA on 13.4.2011. Thereafter NIA sought for police custody which was granted by order passed in Misc. Application No.98/2011 dated 19.07.2011. The said SLP is not argued before us and, therefore, the same is delinked from this batch of cases and the same shall be heard separately.

Mr. U.R. Lalit, learned senior counsel in his submissions referred to the brief facts which led to the initiation of the proceedings against the appellants under the provisions of MCOCA. As the narration goes, there was a bomb blast at the place called Malegaon in Mumbai on 29.9.2008. With reference to the said occurrence, FIR No.130/2008 was registered in the Azad Nagar police station in Malegaon on 30.9.2008. On 26.10.2008, the said FIR was transferred and registered as C.R. No. 18/2008 and the investigation was taken over by ATS. Thereafter the appellant in Criminal Appeal No. 1971/2010, namely, one Rakesh Dattaray Dhawade was arrested by ATS on 02.11.2008. Subsequent to his arrest, the appellant in Crl. Appeal Nos. 1969-1970/2010 was arrested on 05.11.2008. On 20.11.2008, approval was given as per Section 23(1) (a) of MCOCA by DIG, ATS for recording of information about the commission of an offence and for applying the provisions of Section 3(1)(i),3(2) and 3(4) of MCOCA against all the accused in C.R. No. 18/2008.

Be that as it may, earlier on 21.11.2003, there was a bomb explosion at Mohmedia Masjid, Nanalpeth, Parbhani which was registered as C.R. No.161 of 2003/Parbhani. There was another bomb explosion at Kaderia Masjid, Jalna during Friday Namaz which was registered as C.R.No. 194 of 2004/Jalna.

Mr. Patil, learned senior counsel appearing for the appellant in SLP (Crl.) No.8132/2010 referred to the impugned judgment of the Division Bench, in particular, paragraph 18 and submitted that the question which was posed for consideration by the Division Bench was limited to the extent of examining the issue of taking cognizance of the offences by the Chief Judicial Magistrate at Parbhani and its counterpart at Jalna. Sofaras the appellant in the present appeal was concerned, learned senior counsel submitted that she became a Sanyasin after performing appropriate Hindu religious rites and prayers on 30.01.2007, that she was residing in an ashram at Jabalpur, Madhya Pradesh and that she owned a two wheeler LML- Freedom which she sold out to one Sunil Joshi of Madhya Pradesh way back in October, 2004 for a sale consideration of Rs.24,000/- and she also signed the necessary transfer application Forms in October, 2004 itself and that thereafter she had no control over the said vehicle. The learned senior counsel submitted that inspite of her disclosing the above facts, the officials of ATS applied third degree methods upon her and insisted that the said vehicle was involved in Malegaon blast occurrence and, therefore, she was also involved in the said occurrence. The learned senior counsel submitted that she was implicated in the Malegaon case while she is innocent simply because the vehicle bearing registration No.MH-15-P-4572, which she owned, was stated to have been involved in the Malegaon blast.

It is relevant to note that after the order of the Division Bench dated 19.7.2010, the Special Judge dealt with the Bail Applications Nos. 40-42 of 2008 and dismissed all the applications. Thereafter, those orders were the subject matter of challenge in Criminal Bail Application No.333/2011 with Criminal Application No.464/2011 insofar as the appellant in Criminal Appeal No.1969-70/2010 is concerned. One other appellant namely, Ajay Eknath Rahirkar filed Criminal Application No.556/2011 which was allowed by the Bombay High Court and he was granted bail by imposing certain conditions. As far as Criminal Application No.333/2011 was concerned, the said application was rejected and the main Criminal Application No.464/2011 was disposed of by the High Court.

(ii) in any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lacs.

(2) Any Magistrate of the first class empowered in this behalf by the Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to such other competent Magistrate as the Chief Judicial Magistrate may, by general or special order, specify, and thereupon such Magistrate may hold the inquiry or trial.

200. Examination of complainant.- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:

201. Procedure by Magistrate not competent to take cognizance of the case.- (1) If the complaint is made to a Magistrate who is not competent to take cognizance of the offence, he shall.-

(emphasis added) The said statement of law reinforces the legal position that cognizance is always of the offence and not the offender and once the Magistrate applies his judicial mind with reference to the commission of an offence the cognizance is taken at that very moment.

Having stated the said position relating to A-7, when we come to the case of others, there is no dispute that in respect of other appellants, their involvement is with reference to the present occurrence, namely, Malegaon bomb blast. Admittedly they are not proceeded against for the offence relating to Parbhani and Jalna. But still at the present juncture, with the materials available on record as on date, we are not in a position to ascertain as to the involvement of the appellants either by way of their nexus with any accused who is a member of an 'organized crime syndicate' or such nexus with the offence of an 'organized crime' which pertains to Parbhani and Jalna. We cannot also rule out the possibility of the evidence based on the investigation by the prosecuting agency to come out with reliable materials in support of such nexus to be shown with an accused or with the crime in respect of the earlier two cases, namely, Parbhani and Jalna. We cannot, therefore, declare to the extent as was done by the Special Judge in the order dated 31.07.2009 to straightway reach at a conclusion to the effect that MCOCA was not attracted and, therefore, they should be discharged.

47. We find no merit in the contention that MCOCA, in any way, deals with punishing insurgency directly. We are of the considered view that the legislation only deals with "insurgency" indirectly only to bolster the [pic]definition of "organised crime". However, even if it be assumed that "insurgency" has a larger role to play than pointed out by us above in MCOCA, we are of the considered view that the term "promoting insurgency"

In the light of such line of thinking already expressed by this Court with particular reference to Section 2(1)(e), we do not find any different meaning to be attributed to the definition of 'organized crime', much less to the extent to which the appellants seek to interpret the said definition and state that the indulgence in any violent and related activity for promoting insurgency, the element of pecuniary advantage should be present. We, therefore, reject such a contention and hold that indulging in any violent or other related activity by an organized gang and thereby an effort to promote insurgency i.e. to damage the peace and tranquility in the State is made, that by itself would fall within the four corners of the definition of "organized crime" under Section 2(1)(e).

In the light of our above conclusions on the various submissions, we are convinced that in respect of the appellant in Criminal Appeal No.1971/2010, namely, A-7, there is no scope even for the limited purpose of Section 21(4)(b) to hold that application of MCOCA is doubtful. We have held that the said appellant A-7 had every nexus with all the three crimes, namely, Parbhani, Jalna and Malegaon and, therefore, the bar for grant of bail under Section 21 would clearly operate against him and there is no scope for granting any bail. Insofar as the rest of the appellants are concerned, for the purpose of invoking Section 21(4)(b), namely, to consider their claim for bail, it can be held that for the present juncture with the available materials on record, it is not possible to show any nexus of the appellants who have been proceeded against for their involvement in Malegaon blast with the two earlier cases, namely, Parbhani and Jalna. There is considerable doubt about their involvement in Parbhani and Jalna and, therefore, they are entitled for their bail applications to be considered on merits.