Bombay High Court
Lt. Col. Prasad Shrikant Purohit vs The State Of Maharashtra on 9 November, 2011
Bench: R. C. Chavan
1 BA 333-2011
Anand
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO.333 OF 2011
WITH
CRIMINAL APPLICATION NO.464 OF 2011
Lt. Col. Prasad Shrikant Purohit .Applicant
Age : 39 yrs, Occu : Service
R/o.76/21, Susmriti, Sahntishila
Society, Law College Road, Erandwane,
Pune 411 004.
V/s.
The State of Maharashtra
(Through ATS, Mumbai)
.Respondent
And
Nisar Ahmed Haji Sayed Bilal
Age : 59 yrs, Occu : Retired .Intervener
Permanent residing at 552, Islampura,
Galli No.12, Malegaon,
Nashik.
WITH
CRIMINAL APPLICATION NO.556 OF 2011
Ajay Ekanath Rahirkar .Applicant
Age : 40 yrs, Occu : Business
R/at 16/4, Erandwane,
Pune 4.
V/s.
1. The State of Maharashtra .Respondents
(At the instance of ATS, Mumbai
through Assistant Commissioner
of Police, ATS, Mumbai.
2. National Investigating Agency
Mumbai (Maharashtra)
::: Downloaded on - 09/06/2013 17:54:16 :::
2 BA 333-2011
Head Office at Ministry of
Home Affairs (Govt.of India)
4th floor, Splendor forum,
Jasola District Center,
New Delhi 110 025.
Mr.Shrikant Shivade with Mr.M.S.Mohite,
Advocate, for the Applicant in Cri.Bail
Appln.No.333 of 2011
Mrs.Rohini Salian, appointed Public Prosecutor
for the State with Mr.Mandar Goswami, for
Union of India in Cri.Appln.No.556 of 2011
Mr.J.P.Kharge, APP, for the Respondent State
in Cri.Appln.No.556 of 2011
Mr.V.T.Tulpule, Senior Counsel with
Mr.H.J.Kandalkar, for the Applicant in
Cri.Appln.No.556 of 2011
Mrs.S.D.Shinde, APP, for Respondent No.1
State in Cri.Appln.No.556 of 2011
Mrs.Rohini Salian, Special Public Prosecutor,
for Respondent No.2 in Cri.Appln.No.556 of
2011
CORAM : R.C.CHAVAN, J.
RESERVED ON : 30TH SEPTEMBER, 2011
PRONOUNCED ON : 9TH NOVEMBER, 2011
J U D G M E N T
. These two applications for bail have
been filed by two persons arrested and
chargesheeted in connection with bomb blasts
3 BA 333-2011
at Malegaon, District Nasik on 29th September,
2008, for their alleged involvement in
offences punishable 120B, 302, 307, 326, 324,
153-A, 427 of the Indian Penal Code read with
Sections 3, 4, 5 and 6 of Explosive Substances
Act read with Sections 3(1)(i), 3(2), 3(4) and
3(5) of the Maharashtra Control of Organised
Act (hereinafter referred to as MCOCA ) and
read with Sections and Sections 3, 5 and 25 of
the Indian Arms Act read with Sections 16, 18
and 23 of Unlawful Activities (Prevention) Act
(hereinafter referred to as UAPA ). The
applicants were arrested on 5th November, 2008
and 2nd November, 2008 respectively.
2. Facts which are relevant for the
purpose of deciding these two applications and
which may, for the sake of arguments, be taken
to be not in serious dispute are as under :-
Applicant Lt. Colonel Prasad Purohit
is a serving Army officer, who was also
associated with Military Intelligence and Anti
4 BA 333-2011
Terrorism/Insurgency activities. He claims to
have knowledge about various terror outfits.
Applicant Ajay Rahirkar is a
businessman/industrialist by profession. Co-
accused (who are not applicants) include
Sadhvi Pragya Singh Thakur, Sudhakar Dhar
Dwivedi alias Shankaracharya and one Rakesh
Dhawade. These persons (along with others,
some of whom are not arrayed as accused but
are cited as witnesses) formed an organization
known as 'Abhinav Bharat Trust' at Pune in
2006 with headquarters at the address of Ajay
Rahirkar. It was registered on 9th February,
2007. They allegedly took an oath to strive
to turn India into a Hindu Rashtra called
Aryawart. The members met from time to time
to discuss various aspects for achieving their
goal. Accused Shankaracharya is stated to
have recorded conversations at the meetings
and these recordings are the foundation of
case built up against the two applicants.
5 BA 333-2011
3. The applicants are not shown to have
been involved in any criminal activities in
the past. There had been two prior crimes
registered at Parbhani and Jalna in 2003 and
2004. Accused Rakesh Dhawade, who was
arrested in November, 2008, was shown as
accused in those cases, and supplementary
chargesheets were filed against him for
involvement in crimes at Jalna and Parbhani on
15th November, 2008 and 13th November, 2008
respectively. Approval for applying
provisions of MCOCA to the present crime was
granted on 20th November, 2008 and this is how
applicants have been booked for the offences
under the MCOC Act.
4. Apart from deliberation at the
meeting, the investigators found that the
accused persons had organized an activity for
showing how bombs/explosives explode in a
jungle near Pune, about which according to the
learned counsel for the applicants, evidence
6 BA 333-2011
from villagers is missing. Rahirkar is
alleged to have paid for purchase of some arms
from the funds of Abhinav Bharat at the
instance of Lt. Colonel Purohit. Purohit is
supposed to have bragged to a witness and
shown him explosive RDX which, he is alleged
to have got from some army operation in
Kashmir. But at the same time there is also a
statement showing Purohit's inability to get
RDX. Yet residues of RDX were collected on a
cotton swab from Sudhakar Chaturvedi's
accommodation at Deolali. The learned counsel
for the applicant Purohit contends that this
was planted by a police officer who entered
the quarters surreptitiously before actual
seizure of the residue was made.
5. As far as applicant Ajay Rahirkar is
concerned, as treasurer of Abhinav Bharat, he
is alleged to have received funds from various
quarters including one Jindal and spent it at
the instance of Lt. Colonel Purohit for
7 BA 333-2011
purchase of arms and for other activities
unconnected with the objectives of the trust,
without keeping any accounts and without
furnishing the same to statutory authorities.
Thus, it is alleged that applicant is involved
in unlawful activities.
6. On completion of investigation, both
the applicants along with several others have
been chargesheeted for offences under various
enactments including MCOC Act before the
learned Special Judge under MCOC Act at
Mumbai. Both the applicants applied for bail
before the learned Special Judge. By his
order dated 31st July, 2009 the learned Special
Judge held that charges against the applicants
under the MCOC Act did not survive and that
they would have to be discharged from those
offences. He directed that the case be placed
before regular Sessions Court and therefore,
rejected the applications for bail.
8 BA 333-2011
7. The State challenged the order
discharging the accused from offences under
MCOC Act before the High Court. A Division
Bench of this Court, by Judgment reported as
State of Maharashtra Vs. Pragyasinh
Chandrapalsinh Thakur & ors, reported at 2010
ALL MR (Cri) 2800 partly allowed the
applications by order dated 19th July, 2010 and
directed the Special Judge to decide the bail
application expeditiously. Paras 1 and 2 of
the Judgment recount charges levelled and
states about discharge of accused from charges
under the MCOC Act. Paras 3 to 6 refer to the
orders passed by the trial Judge. Paras 7 and
8 refer to provisions of the MCOC Act and what
constitutes continuing unlawful activity.
Para 9 refers to Judgments of Supreme Court
upholding constitutional validity of MCOC Act
and a Judgment interpreting the term 'unlawful
means'. Para 10 deals with scheme of MCOC
Act. Para 11 recounts as to how MCOC Act came
to be invoked and para 12 refers to the
9 BA 333-2011
findings of the learned Judge of Special Court
in the impugned order. Paras 13 to 17 recount
arguments advanced. In para 18 the Division
Bench limited the scope of its scrutiny in the
following words:
18. We make it clear that the
scope of these appeals is
only limited to examine the
issue taking cognizance of
the offences by the Chief
Judicial
ig Magistrate at
Parbhani and his counterpart
at Jalna. As far as the
merits of the charge under
the MCOC Act or other issues
covered in the arguments of
Mr.Jethmalani and Mr.Lalit
are concerned, it would not
be expedient to deal with
them in these appeals and the
prosecution must be given due
opportunity to deal with the
same before the Special Court
as and when such an occasion
arises.It was fairly conceded
by Mr.Desai,the learned
Senior Counsel that even
while considering the
applications for bail, the
Special Court would be
justified in examining as to
whether the MCOC charges were
made out, prima facie, by the
prosecution against the
accused.
(emphasis supplied)
10 BA 333-2011
8. The Division Bench then referred to
provisions of Code of Criminal Procedure in
para 19, and in para 20 referred to Judgments
on the question of taking cognizance and
reiterated that a magistrate takes cognizance
of an offence and not of an offender. In
paras 21 to 24 the Division Bench referred to
the orders taking cognizance passed by Chief
Judicial Magistrate at Parbhani and Jalna. At
the end of para 24 and in paras 25 to 26 the
Court concluded as under :-
24...In RCC No.504/06 after
the committal order was
passed on 11/8/2008, a third
charge-sheet was filed on
15/11/2008 against the
present respondent no.7, when
he was produced before the
court and the learned CJM
passed the order, Case be
registered as RCC No. 648/08
and on 28/11/2008 he passed
the following order:
Perused the charge-sheet.
Prima facie charges are
disclosed. Therefore,
proceedings started against
Rakesh Dhavde under Sections
307, 436, 324, 323, 153-A,
295 of IPC and Sections 3, 4,
5 of the Explosive Substance
Act .
11 BA 333-2011
A committal order came to be
passed on the very same day
in RCC No. 648/08.
As per Mr. Shivade the
order passed on 28/11/2008
was the very first order
taking cognizance and there
were no such orders passed
either in RCC Nos. 467/06 and
504/06. However, these
submissions do not impress
us, as the accused had filed
an application at Exh.4
specifically praying before
the igcourt not to take
cognizance of the offence
against the added accused
i.e. present respondent no.7
and it was under these
circumstances that after
hearing the parties, the said
application at Exh.4 was
rejected by the order, which
has been relied upon by Mr.
Shivade. Hence it cannot be
accepted that the order dated
28/11/2008 passed below
Exhibit 4 was the only order
of taking cognizance.
25. As noted earlier and as
is clear from catena of
decisions the word taking
cognizance includes taking
note of and on filing of the
charge-sheet at the first
instance in both the cases,
the court directed the case
to be registered as Regular
Criminal Case and it is thus
clear that in both the cases
the respective courts had
taken cognizance of some of
12 BA 333-2011
the offences with sentence of
three years or more and prior
to 20/11/2008. It is
pertinent to note that the
first charge-sheet filed in
RCC No. 504/06, the offences
under Section 153-A and 120-B
of IPC were included, in
addition to the offence
punishable under Section 307
of IPC and at the same time,
there was no compliance of
Section 196 of Cr.P.C. for
these two offences i.e. 153-A
and 120-B of IPC. This would
at the most mean that the
cognizance for the offences
punishable under Sections
153-A and 120-B read with
Section 34 of IPC was not
taken by the learned CJM at
Jalna on 30/9/2006 or when
the first or second charge-
sheet was filed. However, the
case was committed to the
Sessions Court on 11/8/2008
and subsequently on filing of
the charge-sheet against the
present respondent no.7, the
case was registered as RCC
No. 648/08 and was committed
on 28/11/2008. We are not
required to examine the
effect of the committal
orders passed either before
20/11/2008 or thereafter in
both the cases. It is clear
that the learned Special
Judge was overwhelmed by the
fact that there was no
approval obtained under
Section 196 of Cr.P.C. for
taking cognizance of the
offences punishable under
13 BA 333-2011
Sections 153-A and 120-B read
with Section 34 of IPC.
However, that non-compliance
by itself would not lead to a
conclusion that for the other
offences i.e. under Sections
307, 436, 324, 323 read with
Section 34 of IPC the court
had not taken cognizance.
This aspect has not been gone
into by the Special Court
and, therefore, there is an
error apparent in the orders
impugned before us.
As is the settled legal
position, cognizance is taken
of an offence and not of an
offender. Hence, the learned
Special Judge was not right
in holding that the competent
court was required to take
cognizance of the offences
against respondent no.7.
Cognizance is taken at the
initial stage when the very
first report under Section
173(2) of Cr.P.C., which is
more popularly known as
charge-sheet, is submitted
and the commission of an
offence or offences is
disclosed. Thus the view
taken by the Special Court by
saying,
..... It is clear that as on
20/11/2008 though two charge-
sheets were filed against
accused Rakesh Dattatray
Dhawade, who is accused no.7
in Crime No. 18 of 2008
registered with Police
Station ATS, Mumbai, the
14 BA 333-2011
competent court had not taken
cognizance of the offences
against him......
is against the well settled
legal position and referred
to hereinabove.
26. The setting aside of
the order of approval dated
20/11/2008 and the sanction
order dated 15/1/2009 is
consequent to the finding
recorded by the Special Court
that cognizance was not taken
of the
ig offences, against
respondent no.7 and more
particularly of the offences
under Section 153-A of IPC.
At the same time, the Special
Court thought it fit to
invoke powers under Section
11 of the MCOC Act after it
quashed and set aside the
order of approval as well as
the sanction order. Hence,
all these consequent orders
are required to be quashed
and set aside and the Bail
Applications would stand
restored to the file of the
Special Court for being
decided afresh on their own
merits.
9. This is how the applications came to
be placed before the learned Special Judge
again. By his order dated 30th December, 2010,
he rejected both the applications. In the
15 BA 333-2011
order rejecting Purohit's application, he
discussed in first 56 paras the cases of the
parties and arguments advanced. In paras 57
and 58 he dealt with applications by accused,
and wife of applicant Purohit for placing
certain material before him and rejected those
prayers. This material is again sought to be
placed before me now. In paras 59 to 67 he
succinctly
ig dealt with material in the
chargesheet against the applicants. In paras
68 to 74 he dealt with arguments advanced and
rejected the application. In the order
rejecting Rahirkar's application the learned
Special Judge refer to cases of the parties
and arguments in the first 53 paras. In para
55 he stated that he was not satisfied that
provisions of MCOC Act did not apply. In
paras 56 to 62 he recounted the material
against the applicant, dealt with the
contention raised in the para 63 onwards and
rejected the application.
16 BA 333-2011
10. The learned Counsel for the applicants
first submitted that since question of
applicability of MCOC Act was left open by the
Division Bench by para 18 of the
Judgment(Supra) to be decided by the Special
Judge, and had also held that it could be
decided even while considering bail
applications, it was incumbent upon the
learned Special Judge to consider all aspects
of applicability of MCOC Act. He submitted
that there was no continuing unlawful activity
and therefore, the learned Judge should have
held (as he had done earlier) that provisions
of MCOC Act did not apply. The learned
counsel, therefore, sought to show as to how
provisions of MCOC Act were not applicable to
the present case.
11. Before dealing with those arguments,
the context in which I am required to examine
applicability of MCOC Act in the light of
Judgment of the Division Bench may be noted.
17 BA 333-2011
The Judgment of the Division Bench shows :-
(i) The Division Bench was considering
appeals by the State challenging order dated
31st July, 2009 passed by the learned Special
Judge below Exhibit 1 discharging the
applicants and others of offences punishable
under the MCOC Act.
(ii) This order came to be passed because
applicability of MCOC Act was questioned not
by any special/separate applications, but in
bail applications of applicants and others;
and the conclusion was reached while
considering prayers for bail.
(iii)
In para 18 the Division Bench found
that bail applications could be appropriate
stage of dealing with the question of
applicability of MCOC Act.
(iv) The learned Special Judge had found
that when approval for applying provisions of
MCOC Act had been accorded on 20th November,
2008, cognizance of two chargesheets filed on
13th November, 2008 and 15th November, 2008
against co-accused Dhawade had not been taken
by Courts of Jalna and Parbhani; and the
Division Bench decided to restrict itself to
the question of taking of cognizance by Courts
of Parbhani and Jalna.
(v) A learned Senior Counsel for one of
the parties had specifically urged the
Division Bench that since it was considering
appeals under Section 12 of the MCOC Act, all
the issues raised could be decided on merits
rather than finding out if Courts at Parbhani
and Jalna had taken cognizance of the offences
before approval under Section 23(1)(a) of MCOC
Act was accorded on 20th November, 2008, as
noted by the Division Bench in para 14 of the
order. The Division Bench, however,
restricted the Judgment to only a part of the
18 BA 333-2011
question raised.
(vi) The orders of the Special Judge
discharging accused of charges under the MCOC
Act were set aside and bail applications were
restored for being decided afresh-presumably
by again considering the question of
applicability of MCOC Act.
12. Since it is trite saying that
observations in bail orders are not to be
considered at
ig trial, (CENTRAL BUREAU OF
INVESTIGATION vs. PRADEEP BHALCHANDRA SAWANT
and another, 2007(2)Mh.L.J.(Cri.)885) there is
a guarantee that all the questions now being
raised would be reagitated again at trial and
thereafter in appeals, consuming scarce
judicial time. Whether this augurs well for
the ideal of speedy justice could be gauged by
the fact that what this Court is considering
now, towards the end of year 2011, is a prayer
for bail made first in the year 2008 3 years
ago. I would now briefly note the arguments
advanced.
19 BA 333-2011
13. The learned counsel for the applicants
submitted that none of the accused
chargesheeted in the present crime had any
criminal antecedents and none was named as an
accused in any chargesheet prior to being
arrested in this crime. Accused No.7 Rakesh
Dhawade was stated to have been arrested on 2nd
November, 2008. Till then there was no
whisper of his involvement in cases registered
at Jalna and Parbhani or elsewhere in which
chargesheets had already been filed on 7th
September, 2006 and 30th September, 2006 in
respect of incidents dated 21st November, 2003
at Parbhani and 27th August, 2004 at Jalna
respectively. Those chargesheeted at
Parbhani/Jalna included one Yogesh Deshpande-
Vidulkar. It was alleged that in July-August,
2003, in a camp held at Sinhagad forest
accused No.7 Rakesh Dhawade had trained said
Deshpande in handling explosives. Police
themselves came to know of Rakesh Dhawade's
involvement in training accused Deshpande in
20 BA 333-2011
those blast cases in November, 2008. The
learned counsel submitted that applicants and
others are alleged to have come together and
formed Abhinav Bharat in 2006, much after much
after Parbhani/Jalna blasts in 2003-2004.
There is nothing on record to show that
applicant's knew of Dhawade's complicity (if
any) in those blasts. Therefore, according to
the learned counsel it could not be said that
applicants are involved in any organized
crime.
14. According to the affidavit of Shri
Ravi Gambhir S/o. Late Ram Lal Gambhir, Deputy
Superintendent of Police, National
Investigation Agency (NIA), Ministry Of Home
Affairs, New Delhi two more supplementary
chargesheets have been filed against Rakesh
Dhawade in respect of blasts at Purna,
District Parbhani in the year 2004 and at
Nanded in 2006.
21 BA 333-2011
15. While there can be no doubt that a
Court takes cognizance of an offence and not
of an offender, the learned counsel for the
applicants submitted that this general
principle would have to be read in the context
of the particular statutory provision which
refers to taking cognizance. The learned
counsel pointed out that even in para 17 of
the Judgment of Supreme Court in Fakhruddin
Ahmad Vs. State of Uttarnchal & anr. (2008)17
SCC 157, (quoted by the Division Bench in para
16 of its Judgment) the Supreme Court had
observed as under :-
It needs little emphasis
that it is only when the
Magistrate applies his mind
and is satisfied that the
allegations, if proved, would
constitute an offence and
decides to initiate
proceedings against the
alleged offender, that it can
be positively stated that he
has taken cognizance of the
offence.
(emphasis supplied)
22 BA 333-2011
16. The Division Bench had also quoted
from State of W.B. vs. Mohd. Khalid [(1995) 1
SCC 684] in para 20 of its Judgment. The
quote shows that the Supreme Court had
observed that in a broad and literal sense,
taking cognizance means taking notice of an
offence and would include the intention of
initiating judicial proceedings against the
offender in respect of that offence.
17. I have gone through the Judgment in
State of W.B. vs. Mohd. Khalid where
provisions of TADA And Explosives Substances
Act relating to requirement of a sanction for
launching a prosecution were being considered.
On 16th March, 1993 a bomb blast occured at
Kolkata in which 69 persons died. FIR was
registered on 17th March, 1993 and obviously
sent to the magistrate. Confessional
statements were recorded on 7th April, 1993 and
19th May, 1993. On 3rd May, 1993 the Chief
Metropolitan Magistrate was informed that
23 BA 333-2011
provisions of TADA were being applied. On 11th
June, 1993 necessary sanction was accorded by
competent authority. On 14th June, 1993
chargesheet was submitted. The proceedings
were challenged before the High Court
contending that cognizance was taken on 17th
March, 1993 itself, without there being a
sanction, and all subsequent proceedings were
therefore illegal. The High Court held that
TADA had been wrongly applied and cognizance
taken on 14th June, 1993 was not
legal(presumably because the High Court
believed that there was nothing before the
Magistrate on that date to show that sanction
had been accorded on 11th June, 1993). From
para 12 to 23 arguments of Shri KTS Tulsi,
Additional Solicitor General were noted. In
para 24 and 25 arguments of Shri U.R.Lalit,
Senior Counsel were recorded. Arguments of
Shri Ram Jethmalani, Senior Counsel are noted
in paras 26 to 35. The Court then noted as to
what amounts to taking cognizance in para 43
24 BA 333-2011
and 44 as under :-
43. Similarly, when Section
20-A(2) of TADA makes
sanction necessary for
taking cognizance it is
only to prevent abuse of
power by authorities
concerned. It requires to
be noted that this provision
of Section 20-A came to be
inserted by Act 43 of 1993.
Then, the question is as to
the meaning of taking
cognizance. Section 190 of
the Code talks of cognizance
of offences by Magistrates.
This expression has not been
defined in the Code. In its
broad and literal sense, it
means taking notice of an
offence. This would include
the intention of initiating
judicial proceedings against
the offender in respect of
that offence or taking steps
to see whether there is any
basis for initiating
judicial proceedings or for
other purposes. The word
'cognizance' indicates the
point when a Magistrate or a
Judge first takes judicial
notice of an offence. It is
entirely a different thing
from initiation of
proceedings; rather it is
the condition precedent to
the initiation of
proceedings by the
Magistrate or the Judge.
Cognizance is taken of cases
and not of persons.
25 BA 333-2011
44. Cognizance is defined in
Wharton's Law Lexicon 14th
Edn., at page 209. It
reads:
Cognizance (Judicial),
knowledge upon which a judge
is bound to act without
having it proved in
evidence: as the public
statues of the realm, the
ancient history of the
realm, the order and course
of proceedings in
Parliament, the privileges
of the House of Commons, the
existence of war with a
foreign State, the several
seals of the King, the
Supreme Court and its
jurisdiction, and many other
things. A judge is not
bound to take cognizance of
current events, however
notorious, nor of the law of
other countries.
It has, thus, reference to
the hearing and
determination of the case in
connection with an offence.
By the impugned judgment the
High Court has quashed the
orders of sanction and the
Designated Court taking
cognizance in the matter.
18. The Court noted limitations on the
power of High Court under Article 226 of the
Constitution of India in discussion upto para
26 BA 333-2011
51. The Court then noted facts and in para 55
reproduced the order passed on 14th June, 1993
by the designated Court on the chargesheet.
The Court then considered facts and came to
the question of taking cognizance in para 78
and observed as under :-
78. Coming to taking
cognizance, it has been held
by the High Court that it is
not a reasoned order.
ig We
are of the view that the
approach of the High Court
in this regard is clearly
against the decision of this
Court in Stree Atyachar
Virodhi Parishad case in
(para 14, p.721), which is
as under :-
It is in the trial, the
guilt or the innocence of
the accused will be
determined and not at the
time of framing of charge.
The court, therefore, need
not undertake an elaborate
enquiry in sifting and
weighing the material. Nor
is it necessary to delve
deep into various aspects.
All that the court has to
consider is whether the
evidentiary material on
record if generally
accepted, would reasonably
connect the accused with the
crime. No more need be
enquired into.
27 BA 333-2011
19. I have elaborately quoted from this
judgment only to illustrate as to how a
paragraph from a judgment without the context
in which the question was raised could be
misleading. The observations would not show
that in each and every or all situations,
cognizance would have to be read without
having any offender in mind. In State of W.B.
vs. Mohd. Khalid the Court was not considering
the question of cognizance in abstract without
any offender in view. It was dealing with the
question of time when the Court could be said
to have taken cognizance offenders were
already named, and in that context had stated
about cognizance of offence and that too in
broad and literal sense . With utmost
humility I may also point out that the quote
from Wharton's Law Lexicon in para 44 is not
at all about cognizance of an offence, but
about what we in India generally understand to
be taking judicial notice.
28 BA 333-2011
20. The question in the present case is
raised particularly in the context of
definition of construing unlawful activity
in Section 2(1)(d) of MCOC Act which reads as
under :-
Section 2(1)(d) continuing
unlawful activity means an
activity prohibited by law
for the time being in force,
which is a cognizable
offence
ig punishable with
imprisonment of three years
or more, undertaken either
singly or jointly, as a
member of an organised crime
syndicate or on behalf of
such syndicate in respect of
which more than one charge-
sheets have been filed
before a competent Court
within the preceding period
of ten years and that Court
have taken cognizance of
such offence.
(emphasis supplied)
21. The learned counsel for the applicants
submitted that the activity has to be
undertaken by a member, in respect of which
more than one chargesheet is filed, and the
Court has taken cognizance. In the context of
29 BA 333-2011
this provision, cognizance would imply
cognizance of offence qua the member of
Organized Crime Syndicate. Therefore,
according to him, it could not be said that
cognizance of any chargesheet against Dhawade
had been taken before the act complained of
was committed. He submitted that after the
present offence was committed, making Dhawade
an accused in offences committed in 2003-2004,
even before Abhinav Bharat came in existence
in 2006, on the slender thread of his having
allegedly trained Yogesh Deshpande in 2003, is
only contrived to slap provisions of MCOC Act
on the applicants.
22. It may appear that Dhawade's being
made an accused in Parbhani and Jalna blast
cases after his arrest in the present case
could be the proverbial fig leaf to cover up
application of MCOC Act to the accused in the
present case. In this context, the argument
about contextual interpretation of the
30 BA 333-2011
expression that Court has taken cognizance of
offence are not entirely meritless. The
learned Special Public Prosecutor submitted
that there is no need to unsettle the concept
of taking cognizance for the purpose of this
case. In any case, in my view, judicial
discipline demands that a single Judge must
follow Judgment of a Division Bench and only
another bench of co-equal strength could ever
say that the matter needs re-consideration.
Hence, on this question, nothing further could
be said.
23. The next question would be to find out
for the purpose of grant of bail whether
provisions of MCOCA are attracted. The
learned counsel for Lt. Colonel Purohit
submitted that the evidence collected against
the applicant (and even Rahirkar) is basically
transcripts of conversations at meetings
recorded by co-accused Sudhakar Dhar Dwivedi
alias Shankaracharya. The learned Special
31 BA 333-2011
Public Prosecutor submitted that the
conversations recorded by Sudhakar Dhar
Dwivedi, allegedly for being shown to some
entity outside India to seek help of such
entity, show that applicants and other
conspirators wanted to form a parallel
government-may be in exile, have their own
constitution, seek some sort of registration
with United Nations and wanted to achieve the
object of establishing Aryawart, a Hindu State
in India. She submitted, and the transcripts
do show that for this purpose the participants
in those towers of Babel, were willing to go
to any extent, including resorting to
violence. The learned counsel for Lt. Colonel
Purohit submitted that those who made more
fiery speeches than his client have been made
witnesses. Applicant Ajay Rahirkar is not
shown to have expressed himself at all. Yet
Lt. Colonel Purohit and Ajay Rahirkar have
been made accused leaving out those who
propagated violent actions. He submitted that
32 BA 333-2011
those witnesses were permitted to buy extra
judicial immunity.
24. The learned counsel for both the
applicants, as also the learned Special Public
Prosecutor have taken me through the
transcripts at the meetings. While nothing
objectionable can be attributed to Ajay
Rahirkar, Lt. Colonel Purohit's utterances are
in lower pitch than of those who have been
made witnesses. Yet, as submitted by the
learned Special Public Prosecutor Lt. Colonel
Purohit's presence and participation appears
all pervasive. There are also intercepts of
telephonic conversation between Lt. Colonel
Purohit and others after the blast which may
not be so innocuous. However, Ajay Rahirkar's
conversations are pretty mundane.
25. The learned Special Public Prosecutor
further submitted that those who have been
made witnesses had only indulged in verbal
33 BA 333-2011
tirades, by getting emotionally swayed. She
submitted that the two applicants were
actually involved in activities of acquiring
arms and Purohit was possessed of and had
supplied RDX. She pointed to statement of a
witness (PW-55 Nitin Joshi) to whom Purohit
had shown RDX. The learned counsel for
Purohit submitted that it would be
unreasonable
to expect an experienced army
officer, engaged in anti-terrorist activities
and military intelligence, to brag to a
stranger about possession of RDX, when he was
allegedly involved in a conspiracy to use RDX
for bomb blasts. He also questioned the
evidence about recovery of traces of RDX on
cotton swab from accused Sudhakar
Chaturvedi's room in Deolali on 25th November,
2008 (Accused Sudhakar Chaturvedi was possibly
according to applicant Purohit, a source of
A Team of Military Intelligence) He relied
on an authenticated transcript of statement of
Sudbhedar Pawar recorded by a Court of inquiry
34 BA 333-2011
on 8th July, 2009, where Pawar had stated that
API Bagade had opened the room (of Chaturvedi)
on 3rd November, 2008, indicating a possibility
of material being planted. This transcript
was sought to be produced by the accused
before the Special Court as well, but was not
considered, and rightly, as it may properly be
tendered at the stage of defence. Considering
the nature of rebuttal produced, it would have
to be considered at appropriate stage of trial
and not now.
26. Apart from this, the evidence about
complicity of applicants comes from
confessional statements. The learned counsel
for the applicant Lt. Colonel Purohit
submitted first that the statements have been
mostly retracted; secondly that they were not
recorded properly; thirdly that they are not
confessions at all since they do not
inculpate the maker and therefore, could not
be used against the applicants. The learned
35 BA 333-2011
counsel relied on Judgment of Privy Council in
Pakala Narayana Swami v. Emperor, reported at
AIR 1939 PRIVY COUNCIL 47 on the question as
to what amounts to a confession. The Privy
Council held as under :-
As the point was argued
however and as there seems
to have been some discussion
in the Indian Courts on the
matter it may be useful to
state
ig that in their
Lordships' view no statement
that contains self
exculpatory matter can
amount to a confession, if
the exculpatory statement
is of some fact which if
true would negative the
offence alleged to be
confessed. Moreover, a
confession must either admit
in terms the offence, at any
rate substantially all the
facts which constitute the
offence. An admission of a
gravely incriminating fact,
even a conclusively
incriminating fact is not of
itself a confession, e. g.
an admission that the
accused is the owner of and
was in recent possession of
the knife or revolver which
caused a death with no
explanation of any other
man's possession. Some
confusion appears to have
been caused by the
definition of 'confession'
36 BA 333-2011
in Art. 22 of Stephen's
Digest of the Law of
Evidence which defines a
confession as a admission
made at any time by a person
charged with a crime stating
or suggesting the inference
that he committed that
crime. If the surrounding
articles are examined it
will be apparent that the
learned author after dealing
with admissions generally is
applying himself to
admissions in criminal
cases, and for this purpose
defines confessions so as to
cover all such admissions,
in order to have a general
term for use in the three
following articles,
confession secured by
inducement, made upon oath,
made under a promise of
secrecy. The definition is
not contained in the
Evidence Act, 1872: and in
that Act it would not be
consistent with the natural
use of language to construe
confession as a statement by
an accused suggesting the
inference that he committed
the crime.
This was followed by the Supreme Court in Om
Prakash v. State of U.P., reported at AIR 1960
SUPREME COURT 409. Though the learned Special
Public Prosecutor contests this claim, it
37 BA 333-2011
would be a matter of scrutiny as to whether
the confessions do really answer to the test
laid down in Pakala Narayana Swami, and the
objections of the learned counsel for
applicant cannot be lightly brushed aside.
27. The learned counsel also relied on
guidelines laid down by the Supreme Court in
Kartar Singh v. State of Punjab, reported at
1994 CRI.L.J.3139 in paras 268 and 269, which
read as under :-
268. The net result is that
any confession or statement
of a person under the TADA
Act can be recorded either
by a police officer not
lower in rank than of a
Superintendent of Police, in
exercise of the powers
conferred under Section 15
or by a Metropolitan
Magistrate or Judicial
Magistrate or Executive
Magistrate or Special
Executive Magistrate who
are empowered to record any
confession under Section
164(1) in view of sub-
section (3) of Section 20 of
the TADA. As we will be
elaborately dealing with
Section 20(3) in the later
part of this judgment, we do
38 BA 333-2011
not like to go into detail
any more.
269. However, we would like
to lay down following
guidelines so as to ensure
that the confession obtained
in the pre-indictment
interrogation by a police
officer not lower in rank
than a Superintendent of
Police is not tainted with
any vice but is in strict
conformity of the well
recognized and accepted
aesthetic
ig principles and
fundamental fairness:
(1) The confession should be
recorded in a free
atmosphere in the same
language in which the person
is examined and as narrated
by him;
(2) The person from whom a
confession has been recorded
under Section 15(1) of the
Act, should be produced
before the Chief Judicial
Magistrate to whom the
confession is required to be
sent under Rule 15(5) along
with the original statement
of confession, written or
recorded on mechanical
device without unreasonable
delay;
(3) The Chief Metropolitan
Magistrate or the Chief
Judicial Magistrate should
scrupulously record the
statement, if any, made by
39 BA 333-2011
the accused so produced and
get his signature and in
case of any complaint of
torture, the person should
be directed to be produced
for medical examination
before a Medical Officer not
lower in rank than of an
Assistant Civil Surgeon;
(4) Notwithstanding anything
contained in the Code of
Criminal Procedure, 1973, no
police officer below the
rank of an Assistant
Commissioner of Police in
the Metropolitan cities and
elsewhere of a Deputy
Superintendent of Police or
a Police Officer of
equivalent rank, should
investigate any offence
punishable under this Act of
1987.
This is necessary in
view of the drastic
provisions of this Act.
More so when the Prevention
of Corruption Act, 1988
under Section 17 and the
Immoral Traffic Prevention
Act, 1956 under Section 13,
authorize only a police
officer of a specified rank
to investigate the offences
under those specified Acts.
(5) The Police Officer if he
is seeking the custody of
any person for preindictment
or pre-trial interrogation
from the judicial custody,
must file an affidavit sworn
40 BA 333-2011
by him explaining the reason
not only for such custody
but also for the delay, if
any, in seeking the police
custody;
(6) In case, the person,
taken for interrogation, on
receipt of the statutory
warning that he is not bound
to make a confession and
that if he does so, the said
statement may be used
against him as evidence,
asserts his right to
silence, the police officer
must respect his right of
assertion without making any
compulsion to give a
statement of disclosure;
28. As rightly pointed out by the learned
Special Public Prosecutor these guidelines
have now been incorporated in Section 18 of
the MCOC Act.
29. There can be no doubt about the
proposition that the history of personal
liberty is largely the history of insistence
on observance of procedure and that observance
of procedure is the protection against wanton
assaults on personal liberty, as observed by
41 BA 333-2011
the Supreme Court in Prabhu Dayal Deorah etc.
v. District Magistrate, Kamrup and others,
reported at AIR 1974 SUPREME COURT 183 in the
context of detention under the Maintenance of
Internal Security Act.
30. About the grievance about absence of
strict compliance to provision relating to
recording
certificate before confessional
statement, the learned Special Public
Prosecutor relied on Judgment of the Supreme
Court in BHARATBHAI ALIAS JIMI PREMCHANDBHAI
Versus STATE OF GUJARAT, reported at (2002) 8
Supreme Court Cases 447. In that case, the
Court was considering confessional statement
recorded under Section 15 of the TADA Act,
1987. In that case, the question was about
absence of a memorandum at the foot of the
confession as required under Rule 15(3)(b) of
the TADA Rules, 1987 to the following effect.
I have explained to (name)
that he is not bound to make
a confession and that, if he
does so, any confession he
42 BA 333-2011
may make may be used as
evidence against him and I
believe that this confession
was voluntarily made. It
was taken in my presence and
hearing and recorded by me
and was read over to the
person making it and
admitted by him to be
correct, and it contains a
full and true account of the
statement made by him.
sd/-
Police Officer
The question before the Court was : could oral
evidence in the Court be a substitute for a
memorandum required to be made under the said
Rule. The Court held that the requirement of
the rule was preparation of the
contemporaneous record regarding the manner of
recording in the presence of the persons
making it. While making the memorandum was
mandatory requirement, what was not held
mandatory was the form and words of the
Certificate and the memorandum. In the case
before the Supreme Court no memorandum had
been prepared. The question of deviation from
procedure would have to be contextually
43 BA 333-2011
examined. Therefore, at this stage, this
aspect need not be dealt with.
31. In para 23 of the Judgment in Lal
Singh v. State of Gujarat and another,
reported at 2001 CRI.L.J.978 on which the
learned counsel for the applicant relied, the
Supreme Court observed that the Supreme Court
had not
held in Kartar Singh that if
guidelines are not followed, the confessional
statement would become inadmissible.
Therefore, whether departures from procedures
prescribed affect the veracity or not would be
a matter of appreciation of evidence.
32. The law as to utility of confessions
of co-accused at trials is well settled. In
STATE (NCT OF DELHI) Versus NAVJOT SANDHU
ALIAS AFSAN GURU, reported at 2005 Supreme
Court Cases (Cri) 1715, the Court noted the
provisions relating to confessions and quoted
with approval from earlier Judgments to the
44 BA 333-2011
effect that the retracted confession may form
the legal base of conviction, if the Court is
satisfied that it was true and voluntarily
made and that general trend of the confession
should be substantiated by some evidence which
would tally with what is contained in the
confession. As to use of retracted confession
against co-accused the Court observed that
that the proper approach would be to marshal
the evidence against the (co-)accused
excluding the confession altogether from
consideration and see whether, if it is
believed, a conviction could be safely be
based on it. If it is capable of belief
independently of the confession, then it is
not necessary to call the confession in aid.
But cases may arise where the judge is not
prepared to act on the other evidence as it
stands, even though, if believed, it would be
sufficient to sustain a conviction. In such
an event the judge may call in aid the
confession and use it to lend assurance to the
45 BA 333-2011
other evidence and thus fortify himself in
believing what, without the aid of the
confession, he would not be prepared to
accept. The Court had quoted these
observations from celebrated Judgment in
Kashmira Singh v. State of M.P., reported at
1952 SCR 526. The Court had also considered
the implications of Section 10 of the Evidence
Act as to anything said, done or written by a
person in conspiracy in reference to the
common intention after the time when such
intention was first entertained. The Court
quoted from an earlier Judgment to the effect
that the words of Section 10 are not capable
of being widely construed so as to include a
statement made by one conspirator in the
absence of the others with reference to the
past acts or those not done in the actual
course of carrying out the conspiracy, but
after it has been completed. The common
intention required is one existing at the time
when the thing was said, done or written by
46 BA 333-2011
one of the conspirators. The Court also
considered as to what is a conspiracy. On
facts of that case the Court found that the
lapse of violation of procedural safeguards
made it unsafe to act on the confessional
statement. Therefore, it would be
impermissible at this juncture to comment on
the inadequacies pointed out by the learned
counsel for the applicant, though they cannot
be lightly brushed aside.
33. The learned counsel for the applicant
Lt. Colonel Purohit drew my attention to
Judgment of Supreme Court in STATE THROUGH
SUPERINTENDENT OF POLICE, CBI/SIT Versus
Supreme Court Cases 253. While considering
the question of applicability of TADA the
Court observed that dominant intent of the
accused must be shown to be overawe the
Government, to strike terror, to alienate any
section of people or to adversely affect
47 BA 333-2011
harmony amongst different sections and that it
was not enough that the act resulted in such
(unintended) consequences. The Court found
that though consequences may have been to
strike terror etc., the accused in that case
were not shown to have entertained intention
or motive to overawe the Government or to
strike terror. The act was actuated by
personal
animosity of Prabhakaran towards
Rajiv Gandhi. The Court had also considered
the question as to what constitutes
conspiracy, in the context of provision of
Section 120A of the Indian Penal Code and
Section 10 of the Indian Evidence Act.
Observations of the Court in para 576 of the
judgment may be usefully quoted as under :-
576. Principle of law
governing Section 10 has
been succinctly stated in a
decision of this Court in
Sardar Sardul Singh
Caveeshar v. State of
Maharashtra where this Court
said:
Before dealing
with the individual cases,
as some argument was made in
48 BA 333-2011
regard to the nature of the
evidence that should be
adduced to sustain the case
of conspiracy, it will be
convenient to make at this
stage some observations
thereon. Section 120-A of
the Indian Penal Code
defines the offence of
criminal conspiracy thus :
'When two or more
persons agree to do, or
cause to be done an illegal
act, or an act which is not
illegal by illegal means,
such an agreement is
designated a criminal
conspiracy.'
The essence of
conspiracy is, therefore,
that there should be an
agreement between persons to
do one or other of the acts
described in the Section.
The said agreement may be
proved by direct evidence or
may be inferred from acts
and conduct of the parties.
There is no difference
between the mode of proof of
the offence of conspiracy
and that of any other
offence: it can be
established by direct
evidence or by
circumstantial evidence.
But Section 10 of the
Evidence Act introduces the
doctrine of agency and if
the conditions laid down
therein are satisfied, the
acts done by one are
49 BA 333-2011
admissible against the co-
conspirators. The said
section reads:
'Where there is
reasonable ground to believe
that two or more persons
have conspired together to
commit an offence or an
actionable wrong, anything
said, done or written by any
one of such persons in
reference to their common
intention, after the time
when such intention was
first entertained by any one
of them, is a relevant fact
as against each of the
persons believed to be so
conspiring as well for the
purpose of proving the
existence of the conspiracy
as for the purpose of
showing that any such person
was a party to it.'
This section, as the opening
words indicate, will come
into play only when the
court is satisfied that
there is reasonable ground
to believe that two or more
persons have conspired
together to commit an
offence or an actionable
wrong, that is to say, there
should be a prima facie
evidence that a person was a
party to the conspiracy
before his acts can be used
against his co-conspirators.
Once such a reasonable
ground exists, anything
said, done or written by one
50 BA 333-2011
of the conspirators in
reference to the common
intention, after the said
intention was entertained,
is relevant against the
others, not only for the
purpose of proving the
existence of the conspiracy
but also for proving that
the other person was party
to it. The evidentiary
value of the said acts is
limited by two
circumstances, namely, that
the acts shall be in
reference to their common
intention and in respect of
a period after such
intention was entertained by
any one of them. The
expression 'in reference to
their common intention' is
very comprehensive and it
appears to have been
designedly used to give it a
wider scope than the words
'in furtherance of' in the
English law; with the
result, anything said, done
or written by a co-
conspirator, after the
conspiracy was formed, will
be evidence against the
other before he entered the
field of conspiracy or after
he left it. Another
important limitation
implicit in the language is
indicated by the expressed
scope of its relevancy.
Anything so said, done or
written is a relevant fact
only 'as against each of the
persons believed to be so
51 BA 333-2011
conspiring as well for the
purpose of proving the
existence of the conspiracy
as for the purpose of
showing that any such person
was a party to it'. It can
only be used for the purpose
of proving the existence of
the conspiracy or that the
other person was a party to
it. It cannot be used in
favour of the other party or
for the purpose of showing
that such a person was not a
party to the conspiracy. In
short, the section can be
analysed as follows: (1)
There shall be a prima facie
evidence affording a
reasonable ground for a
court to believe that two or
more persons are members of
a conspiracy; (2) if the
said condition is fulfilled,
anything said, done or
written by any one of them
in reference to their common
intention will be evidence
against the other; (3)
anything said, done or
written by him should have
been said, done or written
by him after the intention
was formed by any one of
them; (4) it would also be
relevant for the said
purpose against another who
entered the conspiracy
whether it was said, done or
written before he entered
the conspiracy or after he
left it; and (5) it can only
be used against a co-
conspirator and not in this
52 BA 333-2011
favour.
(emphasis supplied)
The Court then summarized some broad
principles of conspiracy in para 583 of the
judgment as under :-
583. Some of the broad
principles governing the law
of conspiracy may be
summarized though, as the
name implies, a summary
cannot be exhaustive of the
principles.
1. Under Section
120-A IPC offence of
criminal conspiracy is
committed when two or more
persons agree to do or cause
to be done an illegal act or
legal act by illegal means.
When it is a legal act by
illegal means overt act is
necessary. Offence of
criminal conspiracy is an
exception to the general law
where intent alone does not
constitute crime. It is the
intention to commit crime
and joining hands with
persons having the same
intention. Not only the
intention but there has to
be agreement to carry out
the object of the intention,
which is an offence. The
question for consideration
in a case is did all the
53 BA 333-2011
accused have the intention
and did they agree that the
crime be committed. It
would not be enough for the
offence of conspiracy when
some of the accused merely
entertained a wish,
howsoever horrendous it may
be, that offence be
committed.
2. Acts subsequent
to the achieving of the
object of conspiracy may
tend to prove that a
particular accused was party
to the conspiracy. Once the
object of conspiracy has
been achieved, any
subsequent act, which may be
unlawful, would not make the
accused a part of the
conspiracy like giving
shelter to an absconder.
3. Conspiracy is
hatched in private or in
secrecy. It is rarely
possible to establish a
conspiracy by direct
evidence. Usually, both the
existence of the conspiracy
and its objects have to be
inferred from the
circumstances and the
conduct of the accused.
4. Conspirators may
for example, be enrolled in
a chain A enrolling B,
enrolling C, and so on; and
all will be members of a
single conspiracy if they so
intend and agree, even
54 BA 333-2011
though each member knows
only the person who enrolled
him and the person whom he
enrols. There may be a kind
of umbrella-spoke enrolment,
where a single person at the
centre does the enrolling
and all the other members
are unknown to each other,
though they know that there
are to be other members.
These are theories and in
practice it may be difficult
to tell which conspiracy in
a particular case falls into
which category.
ig It may
however, even overlap. But
then there has to be present
mutual interest. Persons
may be members of single
conspiracy even though each
is ignorant of the identity
of many others who may have
diverse roles to play. It
is not a part of the crime
of conspiracy that all the
conspirators need to agree
to play the same or an
active role.
5. When two or more
persons agree to commit a
crime of conspiracy, then
regardless of making or
considering any plans for
its commission, and despite
the fact that no step is
taken by any such person to
carry out their common
purpose, a crime is
committed by each and every
one who joins in the
agreement. There has thus
to be two conspirators and
55 BA 333-2011
there may be more than that.
To prove the charge of
conspiracy it is not
necessary that intended
crime was committed or not.
If committed it may further
help prosecution to prove
the charge of conspiracy.
6. It is not
necessary that all
conspirators should agree to
the common purpose at the
same time. They may join
with other conspirators at
anyig time before the
consummation of the intended
objective, and all are
equally responsible. What
part each conspirator is to
play may not be known to
everyone or the fact as to
when a conspirator joined
the conspiracy and when he
left.
7. A charge of
conspiracy may prejudice the
accused because it forces
them into a joint trial and
the court may consider the
entire mass of evidence
against every accused.
Prosecution has to produce
evidence not only to show
that each of the accused has
knowledge of the object of
conspiracy but also of the
agreement. In the charge of
conspiracy the court has to
guard itself against the
danger of unfairness to the
accused. Introduction of
evidence against some may
56 BA 333-2011
result in the conviction of
all, which is to be avoided.
By means of evidence in
conspiracy, which is
otherwise inadmissible in
the trial of any other
substantive offence
prosecution tries to
implicate the accused not
only in the conspiracy
itself but also in the
substantive crime of the
alleged conspirators. There
is always difficulty in
tracing the precise
contribution of each member
of the conspiracy but then
there has to be cogent and
convincing offence against
each one of the accused
charged with the offence of
conspiracy. As observed by
Judge Learned Hand this
distinction is important
today when many prosecutors
seek to sweep within the
dragnet of conspiracy all
those who have been
associated in any degree
whatever with the main
offenders .
8. As stated above
it is the unlawful agreement
and not its accomplishment,
which is the gist or essence
of the crime of conspiracy.
Offence of criminal
conspiracy is complete even
though there is no agreement
as to the means by which the
purpose is to be
accomplished. It is the
unlawful agreement which is
57 BA 333-2011
the gravamen of the crime of
conspiracy. The unlawful
agreement which amounts to a
conspiracy need not be
formal or express, but may
be inherent in and inferred
from the circumstances,
especially declarations,
acts and conduct of the
conspirators. The agreement
need not be entered into by
all the parties to it at the
same time, but may be
reached by successive
actions evidencing their
joining of the conspiracy.
ig 9. It has been said
that a criminal conspiracy
is a partnership in crime,
and that there is in each
conspiracy a joint or mutual
agency for the prosecution
of a common plan. Thus, if
two or more persons enter
into a conspiracy, any act
done by any of them pursuant
to the agreement is, in
contemplation of law, the
act of each of them and they
are jointly responsible
therefor. This means that
everything said, written or
done by any of the
conspirators in execution or
furtherance of the common
purpose is deemed to have
been said, done or written
by each of them. And this
joint responsibility extends
not only to what is done by
any of the conspirators
pursuant to the original
agreement but also to
collateral acts incidental
58 BA 333-2011
to and growing out of the
original purpose. A
conspirator is not
responsible, however, for
acts done by a co-
conspirator after
termination of the
conspiracy. The joinder of
a conspiracy by a new member
does not create a new
conspiracy nor does it
change the status of the
other conspirators, and the
mere fact that conspirators
individually or in groups
perform different tasks to a
common end does not split up
a conspiracy into several
different conspiracies.
10. A man may join
a conspiracy by word or by
deed. However, criminal
responsibility for a
conspiracy requires more
than a merely passive
attitude towards an existing
conspiracy. One who commits
an overt act with knowledge
of the conspiracy is guilty.
And one who tacitly consents
to the object of a
conspiracy and goes along
with other conspirators,
actually standing by while
the others put the
conspiracy into effect, is
guilty though he intends to
take no active part in the
crime.
59 BA 333-2011
34. Drawing a parallel with provisions of
MCOCA, the learned counsel submitted that a
terrorist act cannot be equated to an
organized crime since organized crime
contemplates some advantage for the members of
organized crime syndicate. He submitted that
taking revenge could likewise not be equated
to spreading terror. According to the learned
counsel, no advantage was expected to flow to
the applicants from the acts attributed to
them.
35. The learned Special Public Prosecutor
contested this claim and submitted that
revenge itself is a feeling which would ensure
mental satisfaction to the person who takes
revenge and would be covered by the expression
other advantage . He pointed out that the
full bench of this Court in The State of
Maharashtra V/s. Jagan Gagansingh Nepali alias
Jagya and another on Criminal Appeal No.20 of
2011 has already clarified that the advantage
60 BA 333-2011
contemplated is not restricted to a pecuniary
or a like advantage. Since the prosecution
has come up with the case that applicants and
others want to establish a Hindu Nation State
in India, it could be argued that any act
which makes non Hindus feel unsafe is an
advantage a point earned towards the
ultimate goal. This aspect too cannot be
considered in abstract at this stage and would
have to be correlated with evidence of
consequences of acts intended.
36. The learned counsel for the Intervener
cited Judgment in Zameer Ahmed Latifur Rehman
Sheikh Vs State Of Maharashtra, reported at
2010-SCALE-4-276, 2010-ALLSCR-0-1001, where
the Supreme Court was considering
constitutionality of MCOCA insofar as it dealt
with insurgency on the ground of want of
legislative competence and repugnancy with
UAPA a subsequent central enactment. While
upholding the constitutionality of MCOCA the
61 BA 333-2011
Court observed as under in paras 40 to 44, 54,
55, 61, 62 and 63 :-
(40) Now that we have
examined under what
circumstances a State Law
can be said to be
encroaching upon the law
making powers of the Central
Government, we may proceed
to evaluate the current
issue on merits. Let us
once again examine the
provision at the core of
this matter:
2(1)(e) organized crime
means any continuing
unlawful activity by an
individual, singly or
jointly, either as a member
of an organized crime
syndicate or on behalf of
such syndicate, by use of
violence or threat of
violence or intimidation or
coercion, or other unlawful
means, with the objective of
gaining pecuniary benefits,
or gaining undue economic or
other advantage for himself
or any person or promoting
insurgency; After examining
this provision at length, we
have come to the conclusion
that the definition of
organized crime contained
in Section 2(1)(e) of the
MCOCA makes it clear that
the phrase promoting
insurgency is used to
denote a possible driving
force for organized crime .
It is evident that the MCOCA
62 BA 333-2011
does not punish insurgency
per se, but punishes those
who are guilty of running a
crime organization, one of
the motives of which may be
the promotion of insurgency.
We may also examine the
Statement of Objects and
Reasons to support the
conclusion arrived at by us.
The relevant portion of the
Statement of Objects and
Reasons is extracted
hereinbelow:-
1. Organized crime has been
for quite some years now
come up as a very serious
threat to our society. It
knows no national boundaries
and is fueled by illegal
wealth generated by
contract, killing,
extortion, smuggling in
contrabands, illegal trade
in narcotics kidnappings for
ransom, collection of
protection money and money
laundering, etc. The
illegal wealth and black
money generated by the
organized crime being very
huge, it has had serious
adverse effect on our
economy. It was seen that
the organised criminal
syndicates made a common
cause with terrorist gangs
and foster narco terrorism
which extend beyond the
national boundaries. There
was reason to believe that
organised criminal gangs
have been operating in the
State and thus, there was
63 BA 333-2011
immediate need to curb their
activities....
2. The existing legal
framework i. e. the penal
and procedural laws and the
adjudicatory system are
found to be rather
inadequate to curb or
control the menace of
organized crime. Government
has, therefore, decided to
enact a special law with
stringent and deterrent
provisions including in
certain circumstances power
to ig intercept wire,
electronic or oral
communication to control the
menace of organized crime.
(41) We find no merit in the
contention that the 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 definition of
organized crime .
(42) However, even if it be
assumed that insurgency
has a larger role to play
than pointed out by us above
in the MCOCA, we are of the
considered view that the
term promoting insurgency
as contemplated under
Section 2(1)(e) of the MCOCA
comes with the concept of
public order. From the
ratio of the judgments on
the point of public order
64 BA 333-2011
referred to by us earlier,
it is clear that anything
that affects public peace or
tranquility within the State
or the Province would also
affect public order and the
State Legislature is
empowered to enact laws
aimed at containing or
preventing acts which tend
to or actually affect public
order. Even if the said
part of the MCOCA
incidentally encroaches upon
a field under Entry 1 of the
Union list, the same cannot
be held to be ultra virus in
view of the doctrine of pith
and substance as in essence
the said part relates to
maintenance of Public Order
which is essentially a State
subject and only
incidentally trenches upon a
matter falling under the
Union List.
(43) Therefore, we are of
the considered view that it
is within the legislative
competence of the State of
Maharashtra to enact such a
provision under Entries 1
and 2 of List II read with
Entries 1, 2 and 12 of List
III of the Seventh Schedule
of the Constitution.
Repugnance with Central
Statute.
(44) This brings us to the
second ground of challenge
i. e. the part of Section
2(1)(e) of the MCOCA, so far
65 BA 333-2011
as it covers case of
insurgency, is repugnant and
has become void by the
enactment of Unlawful
Activities (Prevention)
Amendment Act, 2004,
amending the Unlawful
Activities (Prevention) Act,
1967.
(54) The Statement of
Objects and Reasons of the
MCOCA, inter alia, states
that organized crime has for
quite some years now come up
as a very serious threat to
our society and there is
reason to believe that
organized criminal gangs are
operating in the State and
thus there is immediate need
to curb their activities.
The Statement of Objects and
Reasons in relevant part,
reads as under :
Organised crime has for
quite some years now come up
as a very serious threat to
our society. It knows no
national boundaries and is
fuelled by illegal wealth
generated by contract
killings, extortion,
smuggling in contrabands,
illegal trade in narcotics,
kidnappings for ransom,
collection of protection
money and money laundering,
etc. The illegal wealth and
black money generated by the
organized crime is very huge
and has serious adverse
effect on our economy. It
is seen that the organized
66 BA 333-2011
criminal syndicates make a
common cause with terrorist
gangs and foster narco-
terrorism which extend
beyond the national
boundaries. There is reason
to believe that organized
criminal gangs are operating
in the State and thus, there
is immediate need to curb
their activities. It is
also noticed that the
organized criminals make
extensive use of wire and
oral communications in their
criminal activities.
ig The
interception of such
communications to obtain
evidence of the commission
of crimes or to prevent
their commission is an
indispensable aid to law
enforcement and the
administration of justice.
2. The existing legal
framework i. e. the penal
and procedural laws and the
adjudicatory system are
found to be rather
inadequate to curb or
control the menace of
organized crime. Government
has, therefore, decided to
enact a special law with
stringent and deterrent
provisions including in
certain circumstances power
to intercept wire,
electronic or oral
communication to control the
menace of the organized
crime. After enacting the
MCOCA, assent of the
President was also obtained
67 BA 333-2011
which was received on
24.04.1999. Section 2 of
the MCOCA is the
interpretation clause.
Clause (d) of sub-section
(1) of Section 2 of the
MCOCA, defines the
expression continuing
unlawful activity to mean
an activity prohibited by
law for the time being in
force, which is a cognizable
offence punishable with
imprisonment of three years
or more, undertaken either
singly or jointly, as a
member of an organized crime
syndicate or on behalf of
such syndicate in respect of
which more than one charge-
sheets have been filed
before a competent court
within the preceding period
of ten years and that court
has taken cognizance of such
offence. Clause (e)
(extracted earlier
hereinbefore), defines the
expression organized crime
to mean any continuing
unlawful activity by an
individual, singly or
jointly, either as a member
of an organized crime
syndicate or on behalf of
such syndicate, by use of
violence or threat of
violence or intimidation or
coercion, or other unlawful
means, with the objective of
gaining pecuniary benefits,
or gaining undue economic or
other advantage for himself
or any other person or
68 BA 333-2011
promoting insurgency.
Clause (f), defines
organized crime syndicate
to mean a group of two or
more persons who, acting
either singly or
collectively, as a syndicate
or gang indulge in
activities of organized
crime. The said definitions
are interrelated; the
organized crime syndicate
refers to an organized
crime which in turn refers
to continuing unlawful
activity .
ig MCOCA, in the
subsequent provisions lays
down the punishment for
organized crime and has
created special machinery
for the trial of a series of
offences created by it.
(55) Prior to the 2004
amendment, the UAPA did not
contain the provisions to
deal with terrorism and
terrorist activities. By
the 2004 amendment, new
provisions were inserted in
the UAPA to deal with
terrorism and terrorist
activities. The Preamble of
the UAPA was also amended to
state that the said Act is
enacted to provide for the
more effective prevention of
certain unlawful activities
of individuals and
associations, and dealing
with terrorist activities
and for matters connected
therewith. In 2008
amendment, the Preamble has
69 BA 333-2011
again been amended and the
amended Preamble now also
contains a reference to the
resolution adopted by the
Security Counsel of the
United Nations on 28.09.2001
and also makes reference to
the other resolutions passed
by the Security Counsel
requiring the States
(Nations which are member of
the United Nations) to take
action against certain
terrorist and terrorist
organizations. It also
makes reference to the order
issued by the Central
Government in exercise of
power under Section 2 of the
United Nations (Security
Council) Act, 1947 which is
known as the Prevention and
Suppression of Terrorism
(Implementation of Security
Council Resolutions) Order,
2007. The Preamble of the
UAPA now reads as under :
An act to provide for the
more effective prevention of
certain unlawful activities
of individuals and
associations and for dealing
with terrorist activities
and for matters connected
therewith. Whereas the
Security Council of the
United Nations in its 4385th
meeting adopted Resolution
1373 (2001) on 28th
September, 2001, under
Chapter VII of the Charter
of the United Nations
requiring all the States to
take measures to combat
70 BA 333-2011
international terrorism; And
whereas Resolutions
1267(1999), 1333(2000),
1363(2001) 1390(2002),
1455(2003), 1526(2004),
1566(2004), 1617(2005),
1735(2006) and 1822(2008) of
the Security Council of the
United Nations require the
States to take action
against certain terrorists
and terrorist organizations,
to freeze the assets and
other economic resources, to
prevent the entry into or
the transit through their
territory, and prevent the
direct or indirect supply,
sale or transfer of arms and
ammunitions to the
individuals or entities
listed in the Schedule; And
whereas the Central
Government, in exercise of
the powers conferred by
section 2 of the United
Nations (Security Council)
Act, 1947 (43 of 1947) has
made the Prevention and
Suppression of Terrorism
(Implementation of Security
Council Resolutions) Order,
2007; And whereas it is
considered necessary to give
effect to the said
Resolutions and the Order
and to make special
provisions for the
prevention of, and for
coping with, terrorist
activities and for matters
connected therewith or
incidental thereto.
71 BA 333-2011
(61) Under the MCOCA the
emphasis is on crime and
pecuniary benefits arising
therefrom. In the wisdom of
the legislature these are
activities which are
committed with the objective
of gaining pecuniary
benefits of economic
advantages and which over a
period of time have extended
to promoting insurgency.
The concept of the offence
of 'terrorist act' under
section 15 of the UAPA
essentially
ig postulates a
threat or likely threat to
unity, integrity, security
and sovereignty of India or
striking terror amongst
people in India or in
foreign country or to compel
the Government of India or
the Government of a foreign
country or any other person
to do or abstain from doing
any act. The offence of
terrorist act under Section
15 and the offence of
Unlawful activity under
Section 2(1)(0) of the UAPA
have some elements in
commonality. The essential
element in both is the
challenge or threat or
likely threat to the
sovereignty, security,
integrity and unity of
India. While Section 15
requires some physical act
like use of bombs and other
weapons etc., Section 2(1)
(0) takes in its compass
even a written or spoken
72 BA 333-2011
words or any other visible
representation intended or
which supports a challenge
to the unity, sovereignty,
integrity and security of
India. The said offences
are related to the Defence
of India and are covered by
Entry 1 of the Union List.
(62) Moreover, the meaning
of the term 'Unlawful
Activity' in the MCOCA is
altogether different from
the meaning of the term
'Unlawful Activity' in the
UAPA. It is also pertinent
to note that the MCOCA does
not deal with the terrorist
organizations which indulge
in terrorist activities and
similarly, the UAPA does not
deal with organized gangs or
crime syndicate of the kind
specially targeted by the
MCOCA. Thus, the offence of
organized crime under the
MCOCA and the offence of
terrorist act under the UAPA
operate in different fields
and are of different kinds
and their essential contents
and ingredients are
altogether different.
(63) The concept of
insurgency under Section
2(1)(e) of the MCOCA, if
seen and understood in the
context of the Act, is a
grave disturbance of the
public order within the
state. The disturbance of
the public order, in each
73 BA 333-2011
and every case, cannot be
said to be identical or
similar to the concepts of
terrorist activity as
contemplated respectively
under Section 2(1)(0) and
Section 15 of the UAPA.
Moreover, what is punishable
under the MCOCA is promoting
insurgency and not
insurgency per se.
37. The judgment is significant
particularly
para 61 to 63 thereof. The
implications of these observations on the
judgment of full bench of this Court in The
State of Maharashtra V/s. Jagan Gagansingh
Nepali alias Jagya and another, Criminal
Appeal No.20 of 2011 decided in August, 2011
would have to be studied since this judgment
was not noticed by the full bench while
holding that the term other advantage in
Section 2(e) of MCOC Act cannot be read
ejusdem generis with the words pecuniary
benefits and undue economic . The
observations of the Supreme Court in para 61
may point to an emphasis on pecuniary benefits
74 BA 333-2011
and economic advantages. These observations
come in the context of challenge to
constitutionality on the grounds of competence
and repugnancy and therefore the implications
of the observations would have to be dealt
with at some stage by a competent forum.
However, as promoting insurgency is also
included in definition of organized crime
which is one of the charges levelled in the
case at hand, the implication of judgment of
Supreme Court in Zameer Ahmed on the
pronouncement of full bench in State of
Maharashtra V/s. Jagan Gagansingh Nepali alias
Jagya and another have no significance.
38. As to the question of conspiracy, the
learned counsel for the applicants may not be
wrong in submitting that the material
collected may not directly connect the
applicants to the blasts at Malegaon, or show
that there was intention or agreement to carry
out the blasts. But as submitted by the
75 BA 333-2011
learned Special Public Prosecutor since
conspiracy is hatched in secrecy, such tit-
bits of information as could be gathered from
deliberations at meetings of conspirators, the
evidence about their movement and association
with material/articles used in the blast,
traced backwards from seizure of LML freedom
two wheeler No.MH-15/P/4572 which was found to
have been used, could lead to the inference of
applicants involvement in conspiracy. This
would have to be tested at trial.
39. The learned counsel for applicant Lt.
Colonel Purohit submitted that applicant was
as an army officer in fact involved in anti-
terror operations and was working for Military
Intelligence. He produced some material to
support such a contention. But Malegaon blast
surely cannot be imagined to be a part of any
such operation which misfired. It would be
difficult to say at this stage whether in his
overzealous endeavour to gather intelligence
76 BA 333-2011
from fundamentalists Colonel Purohit slipped
up and came to be associated with wrong
elements. Because, ordinarily in such a case
his military bosses would have not disowned
him and would have claimed the right to try
him themselves.
40. The learned Counsel for the applicant
relying on
ig Judgment in SHAHEEN WELFARE
ASSOCIATION Versus UNION OF INDIA AND OTHERS,
reported at (1996) 2 Supreme Court Cases 616
submitted that it would not be proper to
implicate a person merely because of
communicating with a person involved in the
offence. In SHAHEEN WELFARE ASSOCIATION
Versus UNION OF INDIA AND OTHERS, the Court
observed in the context of prosecutions under
the TADA that it was essential that innocent
persons should be protected from terrorists
and disruptionists and it was equally
necessary that terrorists and disruptionists
are speedily tried and punished. The Court
77 BA 333-2011
observed that the proper course is to
identify, from the nature of the role played
by each accused person, the real hardcore
terrorists or criminals from others who do not
belong to that category; and apply the bail
provisions strictly insofar as the former
class is concerned and liberally in respect of
the latter class. According to the Supreme
Court, this would reduce the pressure on the
courts in the matter of priority for trial.
41. The learned counsel for Lt. Colonel
Purohit next submitted that for the purpose of
considering bail application, it is not
necessary for the applicant to rule out
complicity in offence under the MCOCA and for
that purpose relied on judgment in RANJITSING
BRAHMAJEETSING SHARMA Versus STATE OF
MAHARASHTRA AND ANOTHER, reported at
(2005)5Supreme Court Cases 294 cited by the
Counsels for one of the applicants on the
question of grant of bail in an offence under
78 BA 333-2011
the Maharashtra Control of Organised Crime
Act, 1999 (hereinafter referred to as 'MCOCA'
Act). In paras 38 and 44 to 46 of the Judgment
the Supreme Court observed as under :-
38. 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 court, having regard
to the materials brought on
record, is satisfied that in
all probability he may not be
ultimately convicted, an
order granting 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 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 of the accused
and his involvement in the
commission of an organised
crime either directly or
79 BA 333-2011
indirectly. 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 manner
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.
44. The wording of Section
21(4), in our opinion, does
not lead to the conclusion
that the court must arrive at
a positive finding that the
applicant for bail has not
committed an offence under
the Act. If such a
construction is placed, the
court intending to grant bail
must arrive at a finding that
the applicant has not
committed such an offence. In
such an event, it will be
impossible for the
prosecution to obtain a
judgment of conviction of the
80 BA 333-2011
applicant. Such cannot be the
intention of the legislature.
Section 21(4) of MCOCA,
therefore, must be construed
reasonably. It must be so
construed that the court is
able to maintain a delicate
balance between a judgment of
acquittal and conviction and
an order granting bail much
before commencement of trial.
Similarly, the court will be
required to record a finding
as to the possibility of his
committing a crime after
grnat 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 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.
45. It is, furthermore, trite
that for the purpose of
considering an application
for grant of bail, although
detailed reasons are not
necessary to be assigned, the
order granting bail must
demonstrate application of
mind at least in serious
cases as to why the applicant
has been granted or denied
the privilege of bail.
81 BA 333-2011
46. 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 ig 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,
which 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.
These principles, which were followed in
VASANTHI Versus STATE OF A.P., reported at
(2005)5 Supreme Court Cases 132 and by this
Court in Aatif Nasir Mulla Vs. State of
Maharashtra, reported at 2006 ALL MR (Cri)338,
would govern the question of entitlement of
82 BA 333-2011
the applicants to bail.
42. He submitted that at worst applicant
Lt. Colonel Purohit could be held guilty of
offence punishable under Section 3(2) of
MCOCA. Considering minimum sentence
prescribed for the said offence, and the fact
that applicant a serving army officer with
good record
is in jail for the last three
years, applicant could be admitted to bail in
view of Judgment of Supreme Court in GIANI
PRATAP SINGH Versus STATE OF RAJASTHAN AND
ANOTHER, reported at 1995 Supreme Court Cases
(Cri) 992. I have gone through the short
judgment which is rendered on the facts of
that case and does not lead to any ratio that
accused ought to be bailed out in such a case.
43. The learned counsel for intervener
relied on judgment of Supreme Court in Anil
Kumar Tulsiyani Vs State Of U.P., reported at
2006-ALLMR (CRI)-0-2653, 2006-SCC(CR)-2-565
83 BA 333-2011
where on the basis of a previous judgment
circumstances to be considered in an
application for bail were recounted.
(i) where there is any prima
facie or reasonable ground to
believe that the accused had
committed the offence; (ii)
nature and gravity of the
charge: (iii) severity of the
punishment in the event of
conviction; (iv) danger of
the accused absconding or
fleeing, if released on bail;
(v) character, behaviour,
means, position and standing
of the accused; (vi)
likelihood of the offence
being repeated; (vii)
reasonable apprehension of
the witnesses being tampered
with; and (viii) danger, of
course, of justice being
thwarted by grant of bail.
44. The learned counsel submitted that
applying these yardsticks, applicants are not
entitled to bail. There can be no doubt that
question of grant of bail to applicants will
have to be decided on these principles.
45. Applying these principles in the light
of observations in RANJITSING SHARMA's case to
84 BA 333-2011
the cases of two applicants it has to be held
that :
(i) Lt. Colonel Purohit was not just
involved in talking about Hindu Rashtra, but
is alleged to have been instrumental in making
RDX available. Reliability of evidence about
his bragging to a witness that he had RDX in
his possession, and the evidence about finding
of RDX on a cotton swab would have to be
decided at trial. Therefore, applicant Lt.
Colonel Purohit would not be entitled to bail.
(ii) As far as applicant Ajay Rahirkar is
concerned, first, there is nothing in the
conversation to show his involvement.
Secondly, all that he could be said to have
done is financing purchase of some arms and
not any material used in the blasts at the
instance of Purohit from the funds of the
trust. Therefore, applying principles in
RANJITSING SHARMA's case applicant Ajay
Rahirkar would be entitled to bail.
46. In the result, Criminal Bail
Application NO.333 OF 2011 filed by Lt.
Colonel Purohit is rejected. In view of
disposal of Criminal Bail Application No.333
of 2011, Criminal Application No.464 of 2011
does not survive and the same stands disposed
of. Criminal Application No.556 of 2011 filed
by Ajay Ekanath Rahirkar is allowed. He be
released on bail on his furnishing P.R.Bond of
85 BA 333-2011
Rs.1,00,000/- with one or more solvent
sureties in the like amount of Rs.1,00,000/-
on the condition that he shall scrupulously
keep himself away from all prosecution
witnesses and shall report at the office of
the National Investigating Agency or its
representative in Mumbai once a month on a
convenient date to be fixed by the trial Court
till the trial is over.
(R.C.CHAVAN, J.)
