Mr. Vashishtha Rambhau Andhale vs The State Of Maharashtra, State ...
2004 Latest Caselaw 617 Bom

JUDGMENT

D.G. Deshpande, J.

1. Heard Mr. Mundergi appearing for the appellant and Mr. Thakare, Special P.P. for the Respondents.

2. This is an appeal filed by original accused No.55 against the order of Special Court rejecting his application for bail.

3. I heard both the advocates at length. They took me through the relevant papers and the documents and also referred additional documents [to be mentioned herein after].

4. At the outset the guide-lines given by the Supreme Court in (Kalyan chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and Anr.] are required to be quoted here in which it has been held and observed by the Supreme Court as under:-

"A conclusive finding in regard to the points urged by both the sides is not expected of the Court considering a bail application. Still "Giving reasons is different from discussing merits or demerits. At the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. That did not mean that whilst granting bail some reasons for prima facie concluding why bail was being granted did not have to be indicated."

5. The present appellant is one of the 65 accused who have been charge sheeted at the instance of Bund Garden Police Station,Pune for different offences under the Maharashtra Control of Organized Crime Act, Indian Penal code and the Prevention of Corruption Act. The case is a part of Telgi scam relating to stamp papers, court fees as well as general stamps. Mr. Thakare stated that the charge sheet against the accused is of more than 14,000 pages and more than equal number of documents have been seized during the course of investigation. The charge sheets is already filed. Supplementary charge sheets have also been filed.

6. So far as present appellant is concerned, there is no dispute that the allegations against him are to be found from paras 50 to 60 of the main charge sheet. Those allegations are of two types viz. that the appellant was attached to Crime Branch, Dharavi Unit-V Mumbai from November 1998 to March 1999. It is alleged that during this period, Telgi visited the Crime Branch, Dharavi Unit office, but the appellant, even though was aware of pending cases against Telgi, had not arrested him.

7. The second set of allegations against the present appellant is that on 20th May 2002 two raids were carried out at two different places at the instance of the police. One was carried out by API Darekar in Fort area and other was carried out by the appellant himself at Andheri. It is further alleged that in these raids huge quantity of fake stamps were seized. Persons were called at the Sahar Air Port Office for interrogation but they were set free without takeing any action against them by the appellant after accepting bribe amount of Rs. 15,00,000/- from one Sajid. Therefore, according to the prosecution, this appellant is not only involved under Section 24 of the M.C.O.C. Act but also under Section 3(2) of the said Act. Further it is alleged that being a police officer if he is released on bail, he would tamper with the evidence and the witnesses and, since there is a prima facie case against him, even at this stage no bail should be granted to him.

8. As against this, it was contended by Mr. Mundergi, appearing for the present appellant, that the evidence that is collected against the appellant is too weak for any Court to come to any conclusion even prima facie regarding involvement of the appellant in any of the aforesaid offences. Mr. Mundergi also pointed out that when the appellant initially applied for bail before the trial Court and while his application was pending and before it came for hearing, certain statements came to be recorded by the investigating agency in order to fill in the lacuna. Mr. Mundergi also pointed out that when this matter was heard by this Court last time on 29th April 2004 preceding summer vacation certain queries were made by the court and certain points were raised by the appellants. Those queries and the points raised by the defence went to the root of the matter. But in order to over come the difficulties of lacuna, the investigating agency in this case has recorded confessional statements of Sajid and same has been filed in the court as additional circumstantial document against the appellant. Mr. Mundergi, therefore, state that frequent attempts of the investigating agency to fill in the lacuna in such a manner and go on collecting evidence against the accused even though the charge sheet and the supplementary charge sheet have been filed are required to be deprecated. However, Mr. Mundergi made his submission regarding that confessional statement of Sajid. Alternatively Mr. Mundergi submitted that even if the confessional statement of Sajid is taken into consideration, no case can be said to have been made out against the appellant.

9. With reference to this particular attack by Mr. Mundergi, Mr. Thakare, Spl. PP. submitted that the confessional statement of Sajid which has bee subsequently tendered and was recorded by Vineet Vinayak, Superintendent of Police/SCU-I/SLR/-I/CBI/New Delhi after necessary permission from the Court was obtained in that regard and after the said Sajid was taken to Delhi. Therefore, according to Mr. Thakare filing of the confessional statement cannot be said to be an attempt to fill in the lacuna because it is done by the agency which is totally different from one which was earlier recorded the statement of said Sajid.

10. In reply to this, Mr Mundergi appearing for the appellant pointed out that when the bail application initially moved by the appellant, the statement on oath came to be made by the investigating officer Shri S.K. Peshin, Addl. Superintendent of Police, C.B.I. New Delhi that the said Sajid had given confessional statement. However, in the affidavit of the said Peshin filed before this Court and sworn on 28th April 2004 a statement has been made by the said deponent to the effect that there was no confessional statement of accused No. 8 Sajid and it was probably an unintentional slip which has occurred while preparing earlier confession. [The affidavit filed originally in reply to the bail application.]

11. Coming to the merits of the case Mr. Mundergi contended that regarding first charge that this appellant had not arrested Telgi, when Telgi visited Crime Branch, Dharavi Unit Office where the appellant was posted i sought to be proved against the appellant by the prosecution on the basis of the statements of nine witnesses recorded some time between 22nd February 2004 and 27th February 2004. The names of some of the persons whose statements were recorded during this period are API Nandkishore, PI Nandkumari ASI Vitthal Mule. Mr. Mundergi pointed out that the so called visit of Telgi to the Crime Branch, Dharavi Unit office was on 18 December 1998 or here about spoken of by the nine witnesses after six years on the strength of their memory that they had seen Telgi on that particular day going to Crime Branch, Dharavi Unit Office and meeting Mr. Andnale - the appellant. Some of the witnesses have not actually seen the meeting. Some of them have seen him and heard some conversation going on between the appellant and Telgi. According to Mr. Mundergi such an evidence cannot be said to be sufficient to come to prima facie conclusion that thee accused can be convicted ultimately.

12. Regarding second incident of two raids, one at Andheri and other at Fort. Mr. Mundergi pointed out that prosecution has relied upon the statement of Kum. Rashana Bomi Ankalesaraiya wherein she has stated that Inspector Darekar, when he reached Fort office, advised them that they were the girls coming from respectable families and they should not indulge andy person selling fake stamps. From this, according to Mr. Mundergi, the prosecution intends to prove that Darekar was aware that fake stamps were being sold at the office at Fort and this knowledge of Darekar must be attributed to be the knowledge of the appellant.

13. Further piece of evidence that is relied upon by the prosecution in this regard is the statement of Darekar himself wherein he has stated that two persons belonging to the office at Fort along with stamps were made to sit in a Gipsy and they were taken to the office at Dharavi. They reached Dharavi office at about 1.30 p.m. and they were produced along with the stamps before the appellant. The appellant had also brought two persons with stamps. Inquiry with them was going on. Further evidence collected by the prosecution and pointed out to me by Mundergi was an entry in the dairy of one Rashana Ankalesaraiya who was working with Telgi and in that diary, maintained by her, the telephone number of Crime Branch Dharavi Unit Office is recorded along with one mobile number. Xerox copy of the said entry was made available to me by Mr. Thakare. One more entry regarding payment of Rs. 15,00,000/- to the appellant was produced by Mr. Thakare which, according to him, formed a part of Muddemal of the Case i.e. pages 7694-95.

14. Therefore, on the one hand, according to Mr. Thakare, the aforesaid circumstances are sufficient to come to prima facie conclusion that there is a strong case against the appellant. Whereas, according to Mr. Mundergi, the aforesaid circumstances are not at all sufficient of come to any such conclusion.

15. I have given my anxious consideration to the submissions made by Mr. Mundergi and Mr. Thakare. What the court has to find out at this stage of bail is that whether this prima facie case can be said to have been made out against the appellant which will be sufficient to secure his conviction because that is the requirement of Section 21(4) of the M.C.O.C. Act wherein the conditions have been laid down viz. the Public Prosecutor should be heard and the Court should be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. Therefore, in order to come to any conclusion regarding bail, the court will have to come to a conclusion in this aspect though the conclusion will be only prima facie. It is at this juncture necessary to clarify that none of the observations made by the Court earlier or herein after shall be bound on the trail Court and the trial court shall not be influenced by those observations in any manner whatsoever.

16. So far as first aspects of the matter is concerned, viz. Telgi visiting to Crime Branch, Dharavi Unit Office and the appellant not arresting him. Even though, the prosecution has recorded statements of nine witnesses, none of them can be said to be sufficient to show any connection between the visit of Telgi and talk of appellant with him with reference to any pending case. All these statements have been recorded in February 2004 and none of the nine witnesses have given any reason why they where remembering something that had happened six years back by giving specific particular date as 18.12.1998 when Telgi alleged to have visited Crime Branch, Dharavi Unit office. None of the witnesses referred to any documents in their statements on the basis of which they could give exact date after six years after the visit to Telgi to the office and meeting the appellant with them. Therefore, this material on this aspect is not prima facie sufficient to conclude that if this charge is levelled against the appellant, he will be guilty of the said charge.

17. So far as finding of telephone number of Crime Branch, Dharavi Unit office, Mr. Thakare has tendered a Xerox copy of the pages of dairy allegedly written by Rashana Ankalesaraiya. At the left side the name of Mr. Andhale - Dharavi is written. At the right side, there are two columns. i.e. Office and Residence. In the column of Office mobile number is written as 9821128406 and in the Residence column telephone number is written as 2650101 Ext. 331. Mr. Mundergi pointed out that the number noted in the column of Residence is note the telephone number of the appellant's residential phone number, but it is a phone number of the office where at the relevant time number of officers were working. Mr. Mundergi also pointed out that the mobile number written here and stated above has not been connected to the appellant by any evidence whatsoever. Mr. Thakare conceded though reluctantly that so far the mobile number has not been traced out but the investigation is in progress. He did not dispute that the telephone number written in the column Residence is of the office phone number and not the residential number. Merely because the investigating agency collects some documents showing the name of the office it cannot be said to be any value or use, prima facie, of any link between the appellant and Telgi or his men.

18. The confessional statement of Sajid recorded by Vineet Vinayak, Superintendent of Police, New Delhi is also required to be taken into consideration. Though it cannot be said that this confessional statement is an attempt to fill in the lacuna. The fact remains that Sajid is in custody of police since 8.6.2002. Number of opportunities were available to the investigating agency and to the police to record his confessional statement, but nowhere Sajid made any such confessional statement. It is a fact of record that 22 accused were interrogated by the SIT with the permission of the court and list of those accused was tendered by the Mundergi which shows that it is a certified copy of the proceedings before the Additional Sessions Judge and the Special Judge. It is dated 11.12.2002. The name of Sajid Yusuf Khan is at Sr. No. 8. Permission was granted by the Court to interrogate these persons. It is clear that even when Sajid was being interrogated by SIT he did not make any such confessional statement implicating Andhale - the present appellant and payment of Rs. 15 lacs by him as has been done by him in the last confessional statement recorded by the Superintended of Police, CBI, New Delhi. Therefore, even prima facie this confessional statement has to be taken for consideration with a pinch of salt.

19. In this statement Sajid has stated that when the persons from Fort and Andheri were called and detained by the police at Sahar Air Port office, he received a call from Telgi from Bangalore by which he was asked to deliver Rs. Fifteen lacs to the appellant. Accordingly he caried Rs. Fifteen lacs with him in a bag where the appellant was standing in front of the taxi and, the appellant was alleged to have asked him to put the bag containing the amount in the taxi and go away. Accordingly, he put the amount in the taxi and thereafter the appellant released those persons detained at Sahar Air Port office. Mr. Thakare also tried to seek corroboration to this fact from the extract of dairy, the Xerox copy of which was tendered by him. This dairy is written by Khalid who is one of the co-accused No. 26 wherein on 20.5.2002 Rs. Ten lacs are shown against the name of Sajju and Rs. Five lacs again shown on 21.5.2002.

20. Considering the manner and the stage in which the confessional statement of Sajid was recorded and also considering the fact that Sajid has been in police custody since 8.6.2002, he had an opportunity to confess everything before the SIT when permission was granted to interrogate him. But he failed to do so. this confession, even at this stage, cannot be accepted as gospel truth. It is surrounded by the aforesaid suspicious circumstances and the entries in the name of Sajid in the dairy maintained by Khalid accused No. 26 cannot also abe regarded as the evidence sufficient to connect the appellant. Payment of Rs. 15 lacs by Sajid to the appellant is not a trifle or minor matter which Sajid could have forgotten to disclose to the police any time earlier or details before SIT when he was specially taken for interrogation with the permission of the Court. No inference even prima facie can be drawn against the appellant that he let off all those persons after accepting Rs. Fifteen lacs.

21. In addition to the aforesaid circumstances, what is to be noted at the relevant time is that from November 1998 to March 1999 the appellant was attached to the Crime Branch, Dharavi Unit Office; he was not incharge of the investigation and he was 3rd PI. So far as raids at Fort and Andheri are concerned, number of statements have been recorded by the investigation officer. But none of the witnesses say about any active role of the appellant in confiscating the fabricated fake stamps and their destruction at any time. Even Darekar, whose statement is recorded and which was relied upon by Mr. Thakare in support of his contention, has, on page 123, stated that he informed the appellant that those persons had valid stamp selling licence and their business appeared to be within legally bounded. Even Darekar, who was the party to the raid and who was leading raid at Fort, has not made any categorical statement that on that particular day in the raid he has recovered and seized particular number of fake stamps of particular denomination. If at all he had conducted raid independently, he should have submitted to the investigating the documents of seizure and recovery. However, in his statement referred to above, he has given clean chit to those persons by stating that they were doing legitimate business.

22. So far as first aspect of the matter is concerned, viz. the appellant not arresting Telgi when Telgi visited the Crime Branch, Dharavi Unit Office, the statements are recorded after six years. So far as raids at two places and recovery of fake stamps are concerned, there is no direct or prima facie evidence even at this stage to show that the accused/appellant had in fact seized and recovered huge quantity of fake stamps and helped Telgi and his members by destructing them.

23. Regarding phone numbers and confessional statement of Sajid, as already observed by me above that the prosecution has not succeeded in making out prima facie case against the appellant.

24. Lastly the apprehension of the prosecution is that the appellant will tamper with the witnesses if the is released on bail. But that can be checked by the Court by putting appropriate conditions. Hence the following order:-

ORDER

1. The appeal is allowed.

2. The impugned order dated 10/03/04 is set aside. The accused/appellant be released on his P.R. bond of Rs. 25,000/- [Rupees Twenty Five Thousand only] with one solvent surety in the like amount.

3. He will not leave Bombay and Pune without permission of the trial Court. He will not try to contact or influence or threaten any of the witnesses and needless to say that he will not interfere with the administration of justice i.e. with the trial in any manner whatsoever.

4. After the order was pronounced Mr. Thakare, Spl. P.P. for the respondents prayed that the order may be stayed. I do not find any reason to stay the order. Prayer is rejected.

5. Certified copy expedited.