2005 Supreme(SC) 590

2005(3) Supreme 679
Supreme Court of India
(From Bombay High Court)
N. Santosh Hegde, B.P. Singh & S.B. Sinha, JJ.
Ranjitsing Brahmajeetsingh Sharma — Appellant
versus
State of Maharashtra & Anr. —Respondents
Criminal Appeal No. 523 of 2005
(Arising out of SLP (Crl.) No. 3879 of 2004)
Decided on 7-4-2005
Counsel for the Parties :
For the Appearing Parties : A. Sharan, Additional Solicitor General, S.K. Dholakia, V.R. Manohar, Sr. Advocates, Ms. Sandhya Goswami, Vikas Sharma, P. Parmeswaran, Siddharth Singla and Ankur, Shyam Dewani, Shrikant Shinde, Sanjay Sen, Rana S. Biswas, Manish Pratap Singh, Ms. Sarla Chandra, Ms. Usha Dahanwkar, S.S. Shinde, Ravindra K. Adsure, Advocates.

Important point
While dealing with a special statute like the Maharashtra Control of Organised Crime Act, 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.

Headnote:Maharashtra Control of Organised Crime Act, 1999—Sections 3(2) and 21—Interpretation and application of the Act—Refusal of bail to appellant, a former Commissioner of Police challenged—Telgi case—During appellant’s tenure, fake stamp papers worth Rs. 2.98 lacs were seized—Having regard to the magnitude, three teams led by Mr. Mushrif, Addl. Commissioner of Police were formed—A proposal was mooted to invoke Section 3 of the Act—One Mr. Mulani, Assistant Commissioner of Police had been included in the field work team along with other officers in connection with the investigation of the said crime—On the ground of alleged involvement in the said crime, appellant was arrested—His application for bail was rejected by the Special Court as well as by the High Court—Role of appellant alleged to be rendition of help and support to organized crime syndicate by certain acts of omission and commission, i.e. by rendering help or support to Mulani and Dilip Kamat co-accused when he was Commissioner of Police—Allegations that appellant had known Telgi both as a scamster as well as a person for a long time—Whether Section 3(2) of MCOCA is attracted in the instant case—(No)—Order dated 4.11.2004 granting interim bail to appellant should continue subject to some conditions.

       Held : 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. (Para 22)

       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 syndicate Communication to, or association with, any person by itself, as was contended by Mr. Sharan, would not, in our considered opinion, come within meaning of the aforementioned provision. The communication or association must relate to a person. Such communication or association to the person must be with the actual knowledge or having reason to believe that he is engaged in assisting in any manner an organised crime syndicate. Thus, the offence under Section 3(2) of MCOCA must have a direct nexus with the offence committed by an organised crime syndicate. Such abetment of commission of offence must be by way of accessories before the commission of an offence. An offence may be committed by a public servant by reason of acts of omission and commission which would amount to tampering with the investigation or to help an accused. Such an act would make him an accessory after the commission of the offence. It is interesting to note that whereas Section 3(2) having regard to the definition of the term ‘abet’ refers directly to commission of an offence or assisting in any manner an organised crime syndicate, Section 24 postulates a situation where a public servant renders any help or support both before or after the commission of an offence by a member of an organised crime syndicate or abstains from taking lawful measures under this Act. (Para 28)

        Mens rea, thus, to commit the crime must be established besides the fact of agreement. The High Court does not say that the Appellant has abetted Telgi or had conspired with him. The findings of the High Court as against the Appellant are attributable to allegations of abetting Kamat and Mulani. Both Kamat and Mulani were public servants. They may or may not have any direct role to play as regard commission of an organised crime but unless a nexus with an accused who is a member of the organised crime syndicate or an offence in the nature of organised crime is established, only by showing some alleged indulgence to Kamat or Mulani, the Appellant cannot be said to have conspired or abetted commission of an organised crime. Prima facie, therefore, we are of the view that Section 3(2) of MCOCA is not attracted in the instant case. 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. The purported acts of omission and commission on the part of the Appellant does not attract the first part of Section 24 of MCOCA. It is not the contention of the Respondents that he has committed any act which comes within the purview of Clauses (3) and (4) hereinbefore. The provisions of MCOCA, as for example, Section 20 casts a duty upon the persons concerned to see that properties of a member of the organised crime syndicate are attached. In view of Section 4, it also becomes the duty of the persons connected with the investigation of crime to see that persons, who are in possession of movable or immovable property which cannot be satisfactorily accounted for are brought to book. The Act is deterrent in nature. It provides for deterrent punishment. It envisages three to ten years of imprisonment and may extend to life imprisonment. Death penalty can also be imposed if somebody commits a murder. Similarly, fines ranging between three to ten lakhs can be imposed. (Paras 35 to 39)

       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. (Para 43)

       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, while 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. (Para 51)

       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 Mulani’s 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 (Para 56)