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2011 ALL MR (CRI.) 1202
High Court of Judicature at Bombay
THE HONOURABLE MRS. JUSTICE RANJANA DESAI
Central Bureau of Investigation
Versus
Vashitha Rambhau Andhale & Another
CRIMINAL APPEAL NOS.764 OF 2007 & 763 OF 2007
Decided on : 14-07-2010
Maharashtra Control of Organised Crime Act, 1999 - Section 24-An officer-May not be investigating officer-But may be closely associated with investigation or with IO-Such a person covered by Section 24 of Act, 1999.-So far as application of Section 24 of the MCOCA is concerned, it is difficult to accept the submission that Section 24 is attracted only if the person concerned is the investigating officer. Section 24 does not say so. An officer may not be the investigating officer, but may be closely associated with investigation, or with the investigating officer. He may in connivance with the investigating officer render support to the commission of organized crime or may actively prevail upon the investigating officer to abstain from taking measures under the MCOCA. His position may be such that he may influence the investigating officer not to take the required steps. Such a person would be covered by Section 24.
Maharashtra Control of Organised Crime Act, 1999 - Section 24-Indian Penal Code, 1860, Section 120-B-Criminal conspiracy - Evidence-An opportunity must be given to prosecution to substantiate its case of conspiracy-Bits of evidence put together make out conspiracy can be decided when evidence adduced- Whether there is corroboration or not is a matter of evidence which can be appreciated at trial.-In Court’s opinion, the evidence collected by the prosecution gives rise to strong and grave suspicion which must lead the Court to prima facie conclude that there is a ground for the Court to presume that A-55 has committed the offence. The Court is not expected to 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 this stage. Undoubtedly, the basic infirmities and broad probabilities can be considered. It is possible that there are prima facie some infirmities and shortcomings in the prosecution evidence which Court finds in several cases. But Court is of the opinion that they are not of such nature as to persuade Court to throw the entire case of the prosecution against A-55 overboard at this stage and discharge A-55. It is urged that charge of conspiracy cannot be sustained because evidence of agreement is absent here. The prosecution cannot rely on a few hits here and a few hits there to make out a case of conspiracy. Court is unable to appreciate this argument. The prosecution must be given an opportunity to lead evidence to substantiate its case of conspiracy. Whether the bits of evidence put together make out conspiracy can be decided when evidence is adduced. At this stage it cannot be said that conspiracy theory is baseless. The argument that prosecution case rests on the evidence of accomplices and their evidence cannot be relied upon unless corroborated will also have to be rejected prima facie it appears that there are several independent pieces of evidence which together go to make the prosecution case. Whether there is corroboration or not is again a matter of evidence which can be appreciated at the trial.
Criminal Procedure Code, 1973 - Section 392-Difference of opinion-In between Judges of Division Bench-Jurisdiction and power of Third Judge-Third Judge not bound by views expressed by Judges of Division Bench-Third Judge can hear entire matter afresh-Decision of Third Judge would be final.-If Mr. Naphade’s argument is accepted then as per Clause 36 of the Letters Patent since Judges who constituted the Division Bench are equally divided, they will have to state the points upon which they differ and the case will have to be heard on those points and those points shall be decided according to the opinion of the majority of the Judges i.e. the point will be decided by the majority of the three of the Judges. In this case, since the Judges of the Division Bench have not stated the points upon which they differ, Court may have to place the matter before the Hon’ble Chief Justice for appropriate orders and after the points are framed, Judge will have to deal with the case. If Section 392 of the Code is held applicable as stated by Advocate General, then in the light of the judgments of the Supreme Court in Tanviben Devitia’s case and Sajjan Singh’s case, Court can hear the entire matter afresh, Court shall not be bound by the views expressed by Judges who constituted the Division Bench and Court’s decision would be final.
1. By judgment and order dated 26/6/2007, MCOCA Special Court, Pune, discharged Vashitha Rambhau Andhale, accused 55 (for convenience, “A-55”) from MCOCA Special Case No.2 of 2003 commonly known as Telgi Stamp Case of Bund Garden Police Station, Pune. The Central Bureau of Investigation (for short, “the CBI”) preferred the present appeal under Section 12 of the Maharashtra Control of Organized Crime Act, 1999 (for short, “the MCOCA”) against the said order being aggrieved by the discharge of A-55. The Division Bench of this court (Dr. Radhakrishnan, J. and Smt. Roshan Dalvi, J.) heard this appeal and delivered separate judgments on 27/2/2008. While Justice Dr. Radhakrishnan concurred with the MCOCA Special Court and confirmed the discharge of A-55, Justice Smt. Roshan Dalvi set aside the discharge order and directed the MCOCA Special Court to frame charge against A-55 and proceed with the trial in accordance with law.
2. In view of the difference of opinion in accordance with section 392 of the Code of Criminal Procedure, 1973 (for convenience, “the Code”), the office placed this appeal before the Hon'ble the Chief Justice (Shri Swatanterkumar, J. as His Lordship then was) for appropriate orders. As directed by the Hon'ble the Chief Justice, this appeal is placed before me.
3. Learned counsel Mr. Thakare, who appears for the appellant and learned counsel Mr. Mundargi, who appears for respondent 1 – A-55 are agreed on the scope of section 392 of the Code. My attention is drawn to several judgments on the scope of section 392 of the Code. It is not necessary to refer to all of them because they reiterate the same principles. I shall only refer to two judgments which will clearly indicate the scope of section 392 of the Code. In Tanviben Devitia v. State of Gujarat (1997) 7 SCC 156, the Supreme Court has observed that there is no manner of doubt that the third judge has a statutory duty under section 392 of the Code to consider the opinions of the two Judges whose opinions are to be laid before the third Judge for giving his own opinion on considerations of the facts and circumstances but the plain reading of section 392 clearly indicates that it is for the third Judge to decide on what points he shall hear arguments, if any, and it necessarily postulates that the third Judge is free to decide the appeal by resolving the difference in the manner, he thinks proper. The Supreme Court further observed that in the scheme of Section 392 of the Code, the view that the third Judge, as a rule of prudence or on the question of judicial etiquette, will lean in favour of the view of one of the Judges in favour of the acquittal of the accused cannot be sustained.
4. In Sajjan Singh & Ors. v. State of Madya Pradesh, (1999) 1 SCC 315, the Supreme Court restated the same principles. The Supreme Court observed that the third Judge is required to examine whole of the case independently and it cannot be said that he is bound by that part of the two opinions of the two Judges comprising the Division Bench where there is no difference. The Supreme Court added that as a matter of fact, the third Judge is not bound by any such opinion of the Division Bench.
5. Mr. Naphade, learned senior counsel appearing for respondent 1 in companion Writ Petition No.764 of 2007 stated that he wants to raise two preliminary objections which go to the root of the matter. He submitted that he may be allowed to raise them at this stage because if the present appeal is entertained without hearing those preliminary objections, that would adversely affect the interest of respondent 1 in Appeal No.764 of 2007. I have, therefore, permitted Mr. Naphade to raise the preliminary objections in this appeal with consent of all counsel. Needless to say that my decision on the preliminary objections will cover this appeal as well as Appeal No.764 of 2007.
6. Mr. Naphade submitted that the present matter is covered by clause 36 of the Letters Patent and not by section 39
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