VASANTHI ' v.

STATE OF A.P.

MAY 4, 2005

[P. VENKATARAMA REDD! AND P.P. NAOLEKAR, JJ.] --

Andhra Pradesh Control of Organised Crime Act, 2001 :

c Sections 18(/), 21(4)-Power of court to grant bail-Restrictions on- Accused charged uls 3(4) of the Act and Section 120-B rlw Sections 364(A) and 341. /PC-Allegation against accused that she lent her car to be used in the offence commiked by other accused-Confession to 1.0.-Bail rejected by ....

Court of Session ri.d by High Court observing that it would be reasonably possible t~ conclu~~ that there were no grounds for believing that accsed D was not guilty of offence and that she was not likely to commit any offence while on bail--Held: what is required to be seen under Section 21(4) of the Act is that the Court should be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence of committing organized crime and that he/she is not likely to commit any offence while on bail-

E Confessional statement not recorded in accordance with Section 18(/) cannot be proved as evidence-Applying the probability test to the/acts of the present case, it is difficult to reach a tentative conclusion that the appellant in all probability will be convicted of the offence-Probability of conviction, so to say, is not bright, if confessiOnal statements are left out of consideration-So also, the material on record does not justify the conclusion at this stage that _.

F the appellant woulc1 ·.1dulge in similar offence of an organized crime if she is .- released on bailhe has been in prison for about I 5 months so far-In.the circumstances, the order of the High Court is set aside and it is directed that the appellant be released on bail.

Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Anr., G JT (2005) 4 SC 123, relied on.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 668- ...: 669 of 2005.

~· From the Judgment and Order dated 21.9.2004 of the Andhra Pradesh I

' H 1200


High Court in Crl.P. No. 4129 of 2004.

P.S. Mishra, Amitash C. Mishra, T.H. Vardhan, Upendra Mishra, Dhruv K. Jha and Manu Shanker Mishra with him for the Appellant.

Mrs. D. Bharathi Reddy for the Respondent.

The following Order of'the Court was delivered :

ORDER

Leave granted.

The appellant was arrested on 21st February, 20004 for involvement in an offence under Section 120-B read with Sections 364(A), 341, IPC and Section 3(4) of The Andhra Pradesh Control of Organized Crime Act, 200 l (for short 'The Act'). The charge-sheet has since been filed in the Court of IX Metropolitan Magistrate, Hyderabad. She moved the Sessions Court for

bail and on rejection, she moved the High Court. The High Court declined D to grant bail on the ground that though not Section 3(4), Section 3(2) of the Act is prima facie attracted and threfore the provisions contained in Section 21(4) of the Act limiting the powers of the Court to grant bail would apply.

The High Court observed that "it is not reasonably possible to conclude at this stage there are no reasonable grounds for believing that she is not guilty E of the offence and that she is not likely to commit any offence while on bail.

The request for bail cannot be accepted".

Aggrieved by, this Order tht: Special Leave Petition giving rise to the present appeal has been filed. The main allegation against the appellant is that she lent her car for being used in carrying the kidnapped boy from F Hyderabad to Pune by the other accused including her daughter. It may be noted that appellant's daughter has been released on bail by the High Court.

A perusal of the charge sheet would indicate that the material against the appellant is mainly the confession said to have been made by her to the 1.0. and also the confessional statement made by the co-accused by which it G is sought to be established that the appellant knowingly lent her car to facilitate the commission of offence of abducting the boy.

"" It must be noted that the confessional statement made to the Police Officer/1.0. cannot be proved as evidenct. The Act contains special provision H

SUPREME COURT REPORTS

[2005] 3 S.C.R.

A making the confessional statement admissible notwithstanding anything contained in the Cr.P.C. or the Indian Evidence Act provided the confession i

is made before a Police Officer not below the rank of Superintendent of Police. The confessional statements which are now sought to be relied upon in the charge sheet are not those recorded in accordance with Section 18( 1)

B of the Act by the authorised officer. As far as the recovery of car is concerned, the same was seized while it was at her residence. Whether under Section 27, any part of her statement would be admissible is also not free from doubt.

Learned counsel for State sought to contend that there are certain circumstances which throw light on the appellant's association with A-1 and the other accused, who are organized criminals. But, these circumstances by themselves c may not lead to the inference of guilt. What is required to be seen under Section 21(4) of the Act is that the Court should be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence ; of committing organized crime and that he/she is not likely to commit any ...

offence while on bail. A provision in pari materia was construed by• this

D Court in Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Anr., reported in JT (2005) 4 SC 123. Justice S.B. Sinha speaking for three Judge aench observed thus:-

"49. 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

E court, having regard to the materials brought on record, is satisfied that in all probability he may not be ultimately convicted, an order granted 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 F 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

G 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 b&.il shall consider the question from the angle as to whether he was possessed of the requisite mens rea .... "

Again in para 55 of the judgment, it was pointed out that the wording

,...

H of Section 21(4) does not lead to the conciusion that the Court must arrive

at a positive finding that the applicant for bail has not committed an offence A under the Act. As regards the second requirement, it was laid down "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 futuro 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 B 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 was again pointed out that "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. The evidence recorded by the High Court while granting or rejecting bail undoubtedly would be tentative C in nature. It will not have any bearing on the merit of the case and the trial court would then be free to decide the case on the basis of evidence adduced at the trial without in any manner being prejudiced thereby". If we apply the probability test that has been propounded by this Court to the facts of the present case it is difficult to reach a tentative conclusion that the appellant in all probability will be convicted of the offence. Probability of conviction, so D to say, is not bright, when we leave out of consideration the confessional statements. So also, the materials on record does not justify the conclusion at this stage that the appellant would indulge in similar offence of an organised crime if she is released on bail. As already noticed, she has been in prison for about 15 months so far. In the circumstances, we set aside the order of E the High Court and direct the appellant to be released on bail on furnishing personal bond for Rs. 20,000 and a surety for like sum to the satisfaction of the 1st Addi.Metropolitan Sessions Judge, Hyderabad. The appeals are accordingly allowed.

R.P.

Appeals allowed.