Criminal Appeal No.763 of 2007

14th July, 2010

Petitioner Counsel: Mr. RAJA THAKARE,Mr. A. M. CHIMALKAR
Respondent Counsel: Mr. A. P. MUNDARGI,Mr. NIRANJAN MUNDARGI

Cases Cited:
Tanviben Devitia Vs. State of Gujarat, (1997)7 SCC 156 [Para 3,12]
Sajjan Singh Vs. State of M.P., (1999)1 SCC 315 [Para 4,12]
National Sewing Thread Co. Ltd., Chidambaram Vs. James Chadwick & Bros. Ltd., AIR 1953 SC 357 [Para 10]
Prabhu Narayan Vs. A. K. Srivastava, AIR 1975 SC 968 [Para 10]
Chairman, Budge Budge Municipality Vs. Mongru Mia, AIR 1953 Cal. 433 [Para 10]
Queen Empress Vs. Dada Ana, XV Bom 452 [Para 11]
Maru Ram Vs. Union of India, AIR 1980 SC 2147 [Para 11]
Khemraj Vs. State of Madhya Pradesh, AIR 1976 SC 173 [Para 14]
State of Bihar Vs. Ramesh Singh, (1977)4 SCC 39 [Para 20]
Union of India Vs. Prafulla Kumar Samal, AIR 1979 SC 366 [Para 20]
Superintendent & Remembrancer of Legal Affairs, West Bengal Vs. Anil Bhunja, AIR 1980 SC 52 [Para 20]
Niranjan Singh Karam Singh Punjabi Vs. Jitendra Bijja, AIR 1990 SC 1962 [Para 20]
State of Maharashtra Vs. Som Nath Thapa, (1996)4 SCC 659 [Para 20]
State of Maharashtra Vs. Priya Sharan Maharaj, AIR 1997 SC 2041 [Para 20]
State of Karnataka Vs. L. Muniswamy, (1977)2 SCC 699 [Para 20]
R. P. Kapur Vs. State of Punjab, AIR 1960 SC 866 [Para 20]
Govind Sakharam Ubhe Vs. State of Maharashtra, 2009(3) BCR (Cri.) 144 [Para 21]
P. Vijayan Vs. State of Kerala, 2010 Cri.L.J. 1427 [Para 22]

JUDGMENT

JUDGMENT :- By judgment and order dated 26/6/2007, MCOCA Special Court, Pune, discharged Vashitha Rambhau Andhale, accused 55 (for convenience, "A-55") from MCOCA Special Case No.2 of 2003 commonly known as Telgi Stamp Case of Bund Garden Police Station, Pune. The Central Bureau of Investigation (for short, "the CBI") preferred the present appeal under Section 12 of the Maharashtra Control of Organized Crime Act, 1999 (for short, "the MCOCA") against the said order being aggrieved by the discharge of A-55. The Division Bench of this court (Dr. Radhakrishnan, J. and Smt. Roshan Dalvi, J.) heard this appeal and delivered separate judgments on 27/2/2008. While Justice Dr. Radhakrishnan concurred with the MCOCA Special Court and confirmed the discharge of A-55, Justice Smt. Roshan Dalvi set aside the discharge order and directed the MCOCA Special Court to frame charge against A-55 and proceed with the trial in accordance with law.

2. In view of the difference of opinion in accordance with section 392 of the Code of Criminal Procedure, 1973 (for convenience, "the Code"), the office placed this appeal before the Hon'ble the Chief Justice (Shri. Swatanterkumar, J. as His Lordship then was) for appropriate orders. As directed by the Hon'ble the Chief Justice, this appeal is placed before me.

3. Learned counsel Mr. Thakare, who appears for the appellant and learned counsel Mr. Mundargi, who appears for respondent 1 - A-55 are agreed on the scope of section 392 of the Code. My attention is drawn to several judgments on the scope of section 392 of the Code. It is not necessary to refer to all of them because they reiterate the same principles. I shall only refer to two judgments which will clearly indicate the scope of section 392 of the Code. In Tanviben Devitia Vs. State of Gujarat, (1997)7 SCC 156, the Supreme Court has observed that there is no manner of doubt that the third judge has a statutory duty under section 392 of the Code to consider the opinions of the two Judges whose opinions are to be laid before the third Judge for giving his own opinion on considerations of the facts and circumstances but the plain reading of section 392 clearly indicates that it is for the third Judge to decide on what points he shall hear arguments, if any, and it necessarily postulates that the third Judge is free to decide the appeal by resolving the difference in the manner, he thinks proper. The Supreme Court further observed that in the scheme of Section 392 of the Code, the view that the third Judge, as a rule of prudence or on the question of judicial etiquitte, will lean in favour of the view of one of the Judges in favour of the acquittal of the accused cannot be sustained.

4. In Sajjan Singh & Ors. Vs. State of Madhya Pradesh, (1999)1 SCC 315, the Supreme Court restated the same principles. The Supreme Court observed that the third Judge is required to examine whole of the case independently and it cannot be said that he is bound by that part of the two opinions of the two Judges comprising the Division Bench where there is no difference. The Supreme Court added that as a matter of fact, the third Judge is not bound by any such opinion of the Division Bench.

5. Mr. Naphade, learned senior counsel appearing for respondent 1 in companion Writ Petition No.764 of 2007 stated that he wants to raise two preliminary objections which go to the root of the matter. He submitted that he may be allowed to raise them at this stage because if the present appeal is entertained without hearing those preliminary objections, that would adversely affect the interest of respondent 1 in Appeal No.764 of 2007. I have, therefore, permitted Mr. Naphade to raise the preliminary objections in this appeal with consent of all counsel. Needless to say that my decision on the preliminary objections will cover this appeal as well as Appeal No.764 of 2007.

6. Mr. Naphade submitted that the present matter is covered by clause 36 of the Letters Patent and not by section 392 of the Code. Considering the importance of the legal issue raised by Mr. Naphade, I requested Mr. Kadam, learned Advocate General to assist me. In deference to my request, learned Advocate General has assisted me.

7. To understand the legal issue raised by Mr. Naphade, it is necessary to have a look at Clause 36 of the Letters Patent and section 392 of the Code. Clause 38 of the Letters Patent also must be carefully read. I may reproduce the said provisions.

Clause 36 of the Letters Patent :

"36. Single Judges and Division Courts.- And we do hereby declare that any function which is hereby directed to be performed by the said High Court of Judicature at [Madras], [Bombay], Fort William in Bengal, in the exercise of its original or appellate jurisdiction, may be performed by any Judge, or by any Division Court thereof, appointed or constituted for such purpose, in pursuance of section one hundred and eight of the Government of India Act, 1915; and if such Division Court is composed of two or more Judges, and the Judges are divided in opinion as to the decision to be given on any point such point shall be decided according to the opinion of the majority of the Judges, if there shall be a majority, but if the Judges be equally divided, they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it."

Clause 38 of the Letters Patent :

"38. Regulation of Proceedings.- And we do further ordain that the proceedings in all criminal cases which shall be brought before the said High Court of Judicature at [Madras], [Bombay], Fort William in Bengal in the exercise of its ordinary original criminal jurisdiction, and also in all other criminal cases over which the said High Court had jurisdiction immediately before the publication of these presents shall be regulated by the procedure and practice which was in use in the said High Court immediately before such publication subject to any law which has been or may be made in relation thereto by competent legislative authority for India; and that the proceedings in all other criminal cases shall be regulated by the Code of Criminal Procedure prescribed by an Act passed by the Governor - General in Council, and being Act No.25 of 1861, or by such further or other laws in relation to criminal procedure as may have been or may be made by such authority as aforesaid."

Section 392 of the Code :

"392. Procedure where Judges of Court of Appeal are equally divided - When an appeal under this Chapter is heard by a High Court before a Bench of Judges and they are divided in opinion, the appeal, with their opinions, shall be laid before another Judge of that Court, and that Judge, after such hearing as he thinks fit, shall deliver his opinion, and the judgment or order shall follow that opinion."

8. Mr. Naphade took me to the relevant provisions of the Government of India Act, 1915, Government of India Act, 1935 and the Indian Independence Act, 1947 and contended that the said provisions and Articles 225 and 372 of the Constitution clearly show that the Letters Patent is still a law in operation in India. According to Mr. Naphade, clause 38 of the Letters Patent lays down that while exercising criminal jurisdiction whether original or appellate, the High Court shall follow the provisions of Criminal Procedure Code, 1861. Mr. Naphade submitted that what is involved in the present case is not a matter of procedure but the jurisdiction and power of the third judge and, therefore, clause 38 of the Letters Patent has no application at all.

9. Mr. Naphade then took me to the relevant provisions of the Criminal Procedure Codes, 1861, 1872, 1875, 1882 and 1898 and 1973 and contended that they do not repeal the provisions of the special law contained in clause 36 of the Letters Patent. He pointed out that all these enactments contain repeal clause and the repeal clause does not contain any reference to clause 36 of the Letters Patent. On the contrary, the said enactments clearly save the operation of the special law contained in clause 36 of the Letters Patent. Since we are concerned with the Code, he drew my attention to section 5 thereof which contains a saving clause. It reads thus :

"5 : Saving - Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force."

10. Mr. Naphade submitted that section 5 of the Code raises a presumption that the provisions of the special law are saved unless the provisions of the Code contain a clear indication to the contrary. According to Mr. Naphade, neither section 392 nor any other provision of the Code contain any provision showing contrary intention of the legislature and, therefore, it must be held that in view of the provisions of section 5 of the Code, the provisions of clause 36 of the Letters Patent will govern the present matter and not section 392 of the Code. In support of his submissions, Mr. Naphade has relied on judgments of the Supreme Court in National Sewing Thread Co. Ltd., Chidambaram Vs. James Chadwick & Bros. Ltd., AIR 1953 SC 357 and Prabhu Narayan Vs. A. K. Srivastava, AIR 1975 SC 968 and judgment of the Calcutta High Court in Chairman, Budge Budge Municipality Vs. Mongru Mia & Ors., AIR 1953 Cal. 433.

11. The submission of Mr. Naphade that the Letters Patent is still a law in operation in India and clause 36 is not repealed is not disputed by Mr. Kadam, learned Advocate General. Learned Advocate General, however, laid stress on the words "in the absence of a special provision to the contrary" found in section 5 and contended that section 392 contains a specific provision to the contrary and, therefore, it overrides clause 36. Mr. Kadam submitted that on a conjoint reading of section 392 of the Code and clause 36 of the Letters Patent, it is apparent that section 392 of the Code is a precise, explicit and definite provision, which would oust the applicability of clause 36 of the Letters Patent to a given case. In other words, section 392 of the Code by specifically conferring jurisdiction on the third judge to hear the appeal in its entirety and decide the matter as he thinks fit, would ipso jure oust the applicability of the jurisdiction conferred on the third judge by the Letters Patent to decide only the point upon which the Division Bench is divided in its opinion. He further submitted that the issue that arises for consideration in the present case is not res integra. In Queen Empress Vs. Dada Ana, XV Bom 452, a Full Bench of this Court decided the very point in controversy and held that section 429 of the Code of Criminal Procedure 1882, the precursor of section 392 of the Code, would overrule clause 36 of the Letters Patent. He has also placed reliance on judgment of the Supreme Court in Maru Ram Vs. Union of India, AIR 1980 SC 2147. Counsel for CBI adopted the arguments of learned Advocate General and contended that the present case will be governed by clause 38.

12. If Mr. Naphade's argument is accepted, then as per clause 36 of the Letters Patent since learned Judges who constituted the Division Bench are equally divided, they will have to state the points upon which they differ and the case will have to be heard on those points by me since Hon'ble Chief Justice has appointed me for that purpose, and those points shall be decided according to the opinion of the majority of the Judges i.e. the point will be decided by the majority of the three of us (learned Judges who constituted the Division Bench and myself). In this case, since learned Judges of the Division Bench have not stated the points upon which they differ, I may have to place the matter before the Hon'ble Chief Justice for appropriate orders and after the points are framed, I will have to deal with the case. If section 392 of the Code is held applicable as stated by learned Advocate General, then in the light of the judgments of the Supreme Court in Tanviben Devitia's case (supra) and Sajjan Singh's case (supra), I can hear the entire matter afresh. I shall not be bound by the views expressed by learned Judges who constituted the Division Bench and my decision would be final.

13. Perusal of the differing judgments makes it evident that learned judges of the Division Bench have differed on practically every aspect. Difference of opinion covers the entire factual and legal matrix. It is, therefore, not possible to formulate the points upon which learned judges have differed. Learned counsel are agreed on this. This is, therefore, a case where even if I uphold the contention of Mr. Naphade, I will have to deal with the entire case afresh. In view of this practical difficulty, I am of the opinion that it would not be appropriate to decide the vexed question of law raised by Mr. Naphade in this case. I shall, therefore, proceed to deal with the case in the light of submissions advanced by learned counsel leaving the question of law open, to be decided in some other appropriate case.

14. The second preliminary objection raised by Mr. Naphade needs to be now dealt with. He submitted that appeal is a statutory remedy and must flow from the four corners of a statute. He submitted that the MCOCA is a self-contained Code. Remedy of appeal is provided under Section 12 of the MCOCA. One cannot look outside the MCOCA when it comes to appeal. Section 12 starts with a non-obstante clause. It overrides the Code. It makes a radical departure from the Code. Under Section 378(1)(b) of the Code, the State Government has to direct the Public Prosecutor to file an appeal under the sub-section. If investigation is by CBI, the Central Government may direct the Public Prosecutor to present an appeal. The right of CBI to file appeal with the permission of the Central Government is stated in Section 378. It is not so stated in Section 12 of the MCOCA under which the appeal is filed. Therefore, CBI or Central Government cannot file appeal under Section 12. Absence of mention of Central Government and CBI in Section 12 is a pointer that they have no power to file appeal. Mr. Naphade submitted that CBI is constituted under the Delhi Special Police Establishment Act, 1946 for the limited purpose of investigation of certain offences notified by the Central Government. Mr. Naphade submitted that therefore the present appeal is not maintainable. The appeal could have been filed only by the State Government. In this connection, Mr. Naphade relied on Khemraj Vs. State of Madhya Pradesh, AIR 1976 SC 173.

15. I find it difficult to accept Mr. Naphade's submission. There is no dispute about the fact that the MCOCA is a self-contained Code. Section 12 thereof which provides for an appeal begins with a non-obstante clause. It gives overriding effect to the MCOCA. So far as appeals are concerned, Section 12 clearly states that the MCOCA overrides the Code. Therefore, it is not necessary to turn to Section 378 of the Code. Khemraj will have no application to this case because in that case, the Supreme Court was not dealing with any statute like the MCOCA having a provision like Section 12 thereof. I appreciate Mr. Thakare's submission that looking to the object of the MCOCA, a restrictive meaning cannot be given to Section 12. In my opinion, therefore, the present appeal is perfectly maintainable. I reject this objection of Mr. Naphade.

16. It is necessary to begin with the facts of the case. It appears to be the prosecution case that on 7/6/2002, a Tata Indica car occupied by three persons was intercepted by Bund Garden Police, Pune, near S.T. Stand near Pune Railway Station. The search of the vehicle and the occupants revealed that the three occupants i.e. original accused 1 to 3 were possessing counterfeit Government Stamps and Stamp Papers. On these facts, FIR was registered at Bund Garden Police Station vide C.R. No.135 of 2002 under sections 120(b), 255, 259, 260, 263(a)(b), 478, 472 and 474 of the Indian Penal Code (for short, "the IPC") read with section 34 of the IPC. Further investigation of this case resulted in massive recovery of Counterfeit Stamps and Stamp Papers as well as printing machinery and stationery worth crores of rupees. It appears that looking to the enormity of the offence and the type of investigation required, the State of Maharashtra constituted a Special Investigation Team (for short, "the SIT") to be headed by DIG, Shri. S. K. Jaiswal vide Government Resolution dated 2/11/2002. The provisions of the MCOCA were applied to this case. The SIT continued the investigation and from time to time filed charge-sheets and supplementary charge-sheets till the investigation was transferred to the CBI vide order dated 15/3/2004 in Civil Writ Petition No.522 of 2003 by the Supreme Court. The CBI scrutinized the role of all the accused persons and filed a composite charge-sheet on 26/7/2005 which included R-1 herein i.e. A-55. The case is numbered as Special Case No.2 of 2003. Role and involvement of A-55 is described in the charge-sheet as under :

a) A-55 was posted at DCB, CID Unit VIII Dharavi, Mumbai as Police Inspector in 1998. He led the raiding party consisting of various police officers including API Dilip Kamath (A-44) in the Fort area on 16/12/1998. Zameer Ahmed, Gulab Sanadi (A-34) and Tarbez Ahmed Abdul Rahim Telgi (A-64) were arrested and counterfeit Government Stamps and Stamp Papers were seized from them. On the basis of complaint lodged by PSI Shinde, C.R. No.78 of 1998 was registered on 17/12/1998 against A-34, A-64 and one Murgoad. Investigation was entrusted to A-44 Dilip Kamath. Immediately after interception, A.K.L. Telgi (A-23) was called to the office. These facts establish that A-55 gained knowledge about the involvement of Zameer Sanadi (A-34) and A.K.L. Telgi (A-23) relating to carrying out the circulation and sale of counterfeit Government Stamps and Stamp Papers by A.K.L. Telgi (A-23) through an organized crime syndicate on 17/12/1998 itself. Evidence collected during investigation discloses that the information regarding this raid had been collected by A-55 and A-23 A.K.L. Telgi was brought to Unit VIII at the instance of A-55 after Tarbez Ahmed Abdul Rahim Telgi (A-64) disclosed this fact relating to the unlawful activities committed by his uncle A.K.L. Telgi (A-23).

b) Investigation has further disclosed that on 20/5/2002, A-55 was Police Inspector cum in-charge at Sahara Airport Crime Branch Unit, Mumbai. On his information, simultaneously a raid was conducted at the office of Mark Enterprises, Jaitun Building, Andheri and at the office of S.S. Services at Fort Mumbai. Raid at Jaitun Building was led by A-55 and raid at Fort was led by PI Darekar. These two offices were headed by Zameer Abdul Gulab Sanadi (A-34) and Firoz Abdul Rehman Shaikh (A-6) and they were carrying on circulation and sale of counterfeit Government Stamps and Stamp Papers. A large quantity of counterfeit Government Stamps and Stamp Papers was found at both the premises. A-55 brought Zameer Ahmed Gulab Sanadi (A-34) along with other staff and the recovered Stamps and Stamp Papers to Sahar Airport Unit. Similarly, PI Darekar also brought Firoz Abdul Rahman Shaikh (A-6) along with the staff and recovered Government Stamps and Stamp Papers to the said office and presented them to A-55.

c) Investigation further disclosed that as a part of a criminal conspiracy hatched by A-55 with the members of the organized crime syndicate led by A.K.L. Telgi (A-23) who was already known to A-55 in C.R. No.78 of 1998 of Unit VIII, A-55 accepted a sum of Rs.15 lakhs on 20/5/2002 from Kadarshah Mohd. Yusuf Singoti @ Sajju (A-8) and willfully and intentionally abstained from taking lawful measures against Zameer Ahmed Gulal Sanadi (A-34) and Firoz Abdul Rehman Shaikh (A-6) and allowed them to go scot free. A-55 neither registered a criminal case nor did he take charge of the said counterfeit Stamps and Stamp Papers. Zaheer Ahmed Gulab Sanadi (A-34) and Firoz Abdul Rehman Shaikh (A-6) were allowed to take back the entire stock. These facts are corroborated by the statement of Sajju (A-8) recorded under S.18 of the MCOCA by Mr. Vineet Vinayak S.P. CBI, New Delhi. The diary of Khalid Abdul Sattar Badami (A-26) shows disbursement of Rs.10 lakhs to Sajju (A-8) on 20/5/2002 and a further sum of Rs.5 lakhs to him on 21/5/2002.

d) Staff members of the aforesaid two offices have admitted the aforesaid facts in their statements recorded under Section 161 as well as under Section 164 of the Code of Criminal Procedure. Constable Anil Ghogare, who used to maintain 'Adwa Register' has confirmed the above facts. 'Adwa Register' has been destroyed but its xerox copy which is in the handwriting of Anil Ghogare mentions the names of said staff members. Investigation has revealed that account of M/s. Mark Enterprises, Jaitun Building is maintained at H.D.F.C. Bank, Andheri by Shabbir Shaikh (A-25) and account of S.S. Services, Fort, is maintained at ABN Amro by Shaikh Mohd. Ashraf K. Musabha Shaikh (A-28). Both these account show deposit of large number of cheques issued by buyers of counterfeit Government Stamps and Stamp Papers.

e) Telephone number of A-55 figures in the diary maintained by Rashna Anklesariya who was working as an assistant of A.K.L. Telgi (A-23). Laxman Maruti Tarvir (A-47), Zameer Ahmed Gulab Sanadi (A-34) and Tarbez Ahmed Abdul Rahim Telgi (A-64) have also deposed against A-55 in their confessional statements.

17. The proposed charge to which my attention is drawn by Mr. Thakare, inter alia, states that during the period from December, 1993 to January, 2003 at various places in Maharashtra, A-55 along with others entered into a criminal conspiracy and/or was a member of a criminal conspiracy and was party to the continuing unlawful activities, carrying on various illegal acts in an organized manner as member of an Organized Crime Syndicate, which continued even after 21/2/1999 when the MCOCA came into force thus, bringing all unlawful activities of the Organized Crime Syndicate under its purview and these activities continued till January, 2003 by which time, it extended to other States. The proposed charge further states that A-55 and others, who were working as public servants rendered help and support to the Organized Crime Syndicate and they have dishonestly and intentionally prepared records in the manner, which they knew to be false with a view to diluting the enormity of the crime or to suppress the offence and they have also failed to ensure making of proper records with intention to save the members of the Organized Crime Syndicate from legal punishment. The proposed charge states that the said public servants which include A-55 intentionally omitted to apprehend such persons and rendered help and support in commission of Organized Crime or abstained from taking lawful measures under the MCOCA with the knowledge that they will thereby cause loss to the national exchequer. The proposed charge thus states that A-55 along with others committed an offence under section 120-B of the IPC. The proposed charge further states that A-55 being a public servant in his capacity as Senior Inspector of Police, Crime Branch, Sahar Airport Unit Mumbai, during May, 2002 by abusing his official position rendered help or support to the continuing unlawful activities of the Organized Crime Syndicate abetted and knowingly facilitated the commission of an Organized Crime. The instances of such activities of A-55 are set out in the proposed charge. They are -

(a) A-55 failed to take lawful measures against A-34 Zameer Ahmed Gulab Sanadi apprehended by him from Jaitun Building, Andheri, Mumbai along with Counterfeit Government Stamps and Stamp Papers and with an intention to save him from legal punishment permitted him to go away along with the Counterfeit Government Stamps and Stamp Papers without registration of any case on 20/5/2002 knowing or having reason to believe that the said Counterfeit Government Stamps and Stamp Papers would be circulated by the members of the Organized Crime Syndicate as genuine, thereby facilitating the continuing unlawful activities of the Organized Crime Syndicate.

(b) A-55 failed to take lawful measures against A-6 Firoz Abdl Rehman Shaikh apprehended by his team from BNG House, Fort, Mumbai, along with Counterfeit Government Stamps and Stamp Papers and with an intention to save him from legal punishment permitted him to go away along with the Counterfeit Government Stamps and Stamp Papers without registration of any case on 20/5/2002 knowing or having reason to believe that the said Counterfeit Government Stamps and Stamp Papers would be circulated by the members of the Organized Crime Syndicate as genuine, thereby facilitating the continuing unlawful activities of the Organized Crime Syndicate.

(c) A-55 accepted an illegal gratification without any public interest of Rs.15 lakhs from A-8 on 20/5/2002 as a motive or reward for abstaining from taking lawful measures against the members of the Organized Crime Syndicate headed by kingpin AKL Telgi A-23, who was known to him from 17/12/1998 with the intention of deliberately shielding them from rightful legal punishment.

18. There are in all 68 accused involved in this case. Two of them expired during the pendency of the trial. One accused is absconding. Forty three accused pleaded guilty to the charge framed against them. They have been convicted. The main accused AKL Telgi is one of those who pleaded guilty. He has been convicted. Eighteen accused are now facing charges. Out of the 18 accused, who are to be tried, A-55 made an application for discharge under section 227 of the Code. Learned Special Judge by the impugned order discharged A-55. Being aggrieved by the said order, the CBI has filed the present appeal.

19. Arguments were advanced on the scope of Section 227 of the Code. Mr. Thakare, learned counsel appearing for the CBI submitted that at the time of framing of the charge, the court has to see whether, there exists material to proceed further and not whether the material so available will definitely result in conviction of the accused. Counsel submitted that the defence of the accused is not to be considered at this prima facie stage and meticulous examination of the material is not expected to be undertaken. Counsel submitted that there is enough evidence collected by the prosecution against A-55 giving rise to grave suspicion against him and, hence, trial court erred in discharging him. He submitted that evidentiary value of the material collected during investigation can be determined only on examining the witnesses and not at this stage. Mr. Mundargi, learned counsel for A-55 on the other hand submitted that when the allegations made in the statements of witnesses taken at their face value make out absolutely no case against the accused or do not disclose essential ingredients of the offence alleged, the accused is entitled to be discharged. The court, even at the initial stage is required to evaluate the material and documents on record to find out if the facts disclose the existence of the offence. The court may for this limited purpose sift the evidence. Patently absurd and inherently improbable allegations are to be discarded. Counsel submitted that if two views are equally possible and the judge is satisfied that the material produced before him gives rise to some suspicion and not grave suspicion against the accused, he will be fully justified in discharging the accused. Counsel submitted that when the judge is certain that there is no prospect of the case ending in conviction, the accused need not be made to undergo the agony of a criminal trial. Counsel submitted that the material collected by the prosecution does not disclose any offence against A-55. There is absolutely no prospect of a conviction and hence the trial court rightly discharged A-55.

20. In support of their submissions, learned counsel relied on the judgments of the Supreme Court in State of Bihar Vs. Ramesh Singh, (1977)4 SCC 39; Union of India Vs. Prafulla Kumar Samal, AIR 1979 SC 366; Superintendent & Remembrancer of Legal Affairs, West Bengal Vs. Anil Bhunja & Ors., AIR 1980 SC 52; Niranjan Singh Karam Singh Punjabi Vs. Jitendra Bijja & Ors., AIR 1990 SC 1962; State of Maharashtra & Ors. Vs. Som Nath Thapa & Ors., (1996)4 SCC 659; State of Maharashtra Vs. Priya Sharan Maharaj & Ors., AIR 1997 SC 2041; State of Karnataka Vs. L. Muniswamy & Ors., (1977)2 SCC 699 and R. P. Kapur Vs. The State of Punjab, AIR 1960 SC 866.

21. In Govind Sakharam Ubhe Vs. State of Maharashtra, 2009(3) BCR (Cri.) 144 this court has summarized the law after considering the above judgments as under :

"The principles laid down by the Supreme Court in the above cases need to be summarized. It is settled law that at the stage of Section 227 of the Code, the court has power to sift the materials collected by the prosecution to find out whether there is prima facie case against the accused or not. The court has to be satisfied that there is ground for presuming that the accused has committed the offence or that there is no sufficient ground for proceeding against him. The Court's enquiry must not be directed to find out whether the case will end in conviction. However, though roving enquiry is not permissible, the court can consider whether the material collected by the prosecution if accepted as it is without being subjected to cross-examination gives rise to strong and grave suspicion for presuming that the accused has committed the offence and that unrebutted material will lead to a conviction. If at the stage of Section 227 or Section 228, the scales as to the guilt or innocence of the accused are even then the court must proceed to frame a charge. There is no question of giving benefit of doubt to the accused and discharge the accused at that stage because the scales are even. That can be done only at the conclusion of trial. If there is a strong suspicion which leads the court to think that there is a ground for presuming that the accused has committed an offence, then the court will proceed to frame the charge. But if two views are possible and the court is satisfied that the evidence gives rise to some suspicion but not grave suspicion against the accused, the court will be within its right to discharge the accused. Suspicion has to be strong and grave suspicion leading the court to presume that the accused has committed an offence. While basic infirmities and broad probabilities can be considered, the court cannot make a roving enquiry into the pros and cons of the matter and weigh the evidence as if it is conducting a trial. Probative value of the material cannot be gone into at that stage."

22. My attention is drawn to a recent judgment of the Supreme Court in P. Vijayan Vs. State of Kerala & Anr., 2010 Cri.L.J. 1427. In that judgment, the Supreme Court has reiterated the same principles and stated that whether materials in the hands of the prosecution are sufficient or not are matters for trial. At the stage of dealing with discharge application whether the trial will end in conviction or acquittal is also immaterial. The Supreme Court confirmed the High Court's judgment where the High Court had after evaluating the material produced before it held that there were sufficient grounds against the appellant for framing charge.

Keeping the above principles in mind, I shall approach this case.

23. On merits of the case, Mr. Thakare, learned counsel for the CBI has submitted written submissions. He has reiterated them during the course of arguments. Mr. Mundargi, learned counsel for A-55 has also submitted written submissions on the merits of the case. He has also reiterated them during the course of arguments. I shall give a gist of those submissions.

Submissions on behalf of CBI on the merits of the case.

(a) Material collected by the prosecution during investigation clearly indicates the existence of a conspiracy. The material on record sufficiently demonstrates the role played by A-55 towards achieving the goal of conspiracy. The trial court has failed to appreciate that C.R. No.78 of 1998 is referred to in the charge-sheet only for the limited purpose of showing that A-55 knew the main accused Telgi. At no point of time, it was the case of the prosecution that with regard to C.R. No.78 of 1998, there are any accusations against A-55. The trial court has therefore fallen into a great error in observing that after the CBI did not show A-55 as an accused in the said case, it was wrong for the prosecution to insist on framing charge against A-55 in this regard. The prosecution has used C.R. No.98 of 1998 only for the purpose of establishing that A-55 had knowledge about AKL Telgi's activities, so that episode of 20/5/2002 can be viewed against that background and the gravity of A-55's acts of commission and omission in that episode can be brought to the notice of the court. When this case was registered A-55 was attached to DCB CID Unit VIII, Dharavi as Inspector of Police. A-55, therefore, cannot be heard to say that he did not know the facts of C.R. No.78 of 1998. In the statement of one Subhash Hazare who was working in the office of Superintendent of Stamps from 1997 to 1999, he has stated in his statement that when this case was registered, A-55 was present at the Crime Branch Dharavi Unit. In the statement of Nandkishore Kondhalkar who was working as Sub-Inspector of Police at the same unit, he has stated that he had come to know that on 18/12/1998, A.K.L. Telgi, A-23 had met A-55 and Dilip Kamat (A-44). Statements of PSI Dilip Shinde, PHC Kumar Sawant, PHC Prakash Jagtap, PHC Prasad Sanas, PC Atmaram and SI Mule are to the same effect. The said case is referred to indicate that A-55 knew A.K.L. Telgi (A-23) since 1998 and for no other purpose. Tabrej Telgi (A-64) and Zameer Sanadi (A-34) have pleaded guilty in both the cases and have been convicted. So far as raids at Andheri and Fort are concerned, there are several statements to substantiate the prosecution case that members of the staff were brought to the office of Crime Branch but their statements were not recorded and they were allowed to go. The confessional statements of Zameer Sanadi (A-34) and Sajju (A-8) are also on record. The transcript of conversation between main accused A.K.L. Telgi (A-23) and accused Kulkarni which was intercepted by Additional D.G., Karnataka while A.K.L. Telgi (A-23) was in custody in Bangalore jail is important. In this conversation, there is a reference to A-55. Under Section 10 of the Indian Evidence Act, this is a relevant fact.

(b) The order passed by the Supreme Court in the special leave petition filed by the prosecution challenging this court's order granting bail to A-55 is important. The criticism levelled by the accused that the CBI had collected evidence against A-55 belatedly was rejected by the Supreme Court by observing that because of the unsatisfactory performance of State police and the number of police personnel involved in the alleged crime, CBI was directed to take up the investigation in March, 2004. The Supreme Court also observed that the same will be the case with regard to confessional statement of A-8 and it cannot be discarded on the basis that it was belated. These observations of the Supreme Court though made at an interim stage are vital and would be very relevant even at the stage of discharge application. In the circumstances, this court should set aside the impugned order and direct the trial court to try A-55 in accordance with law.

Submissions on behalf of A-55 on the merits of the case.

(a) The Trial Court has rightly discharged A-55 because the prosecution has failed to collect any credible evidence against him. The prosecution has made a sinister effort to manufacture evidence against A-55.

(b) The entire case record in C.R. No.78 of 1998 was available with SIT prior to A-55's arrest on 18/10/2003. The FIR was lodged by PSI Dilip Shinde on 17/12/1998 in which he has said that information was received from a reliable informant. He has not referred to A-55. Even the seizure panchanamas dated 16/12/1998 and 17/12/1998 which incorporate the names of police officers, do not mention the name of A-55. Despite this, SIT arrested A-55 on 18/10/2003. In the remand application dated 19/10/2003, SIT alleged that when A-23 AKL Telgi appeared before A-55 and A-44 Dilip Kamat, they did not initiate any action against them. In the supplementary charge-sheet, the prosecution has alleged that A-55 was instrumental in the seizure of fake stamps and stamp papers on 17/12/1998 in C.R. No.78 of 1998, however, A-55 did not arrest A-23 AKL Telgi though his involvement was revealed. There was no material to substantiate these allegations. On 16/1/2004, A-55 filed a bail application in the Trial Court at Pune. The bail application was adjourned from time to time. It was pointed out to the Trial Court that there was no material against A-55. Having realized that there was indeed no material against A-55, on 27/2/2004, the prosecution got false statements of 10 police witnesses recorded to the effect that it is A-55 and A-44 who had given information about the persons who were carrying fake stamps and stamp papers. These witnesses are also said to have stated that A-23 AKL Telgi had visited Dharavi Crime Branch Unit and met A-55 and A-44. These statements were recorded by SIT to justify A-55's arrest on 18/10/2003 and to oppose his bail application. False evidence was created to substantiate false charges levelled against A-55. Merely because A-55 was attached to DCB CID Unit VIII, Dharavi, it does not mean that he had knowledge about C.R. No.78 of 1998 and A-23 AKL Telgi's involvement in the racket.

(c) So far as the raids conducted at Fort and Andheri offices on 20/5/2002 are concerned, the prosecution has relied upon statements of police officers who were attached to Sahar Crime Branch. Counsel submitted that all these police officials were in active service of the police force. They were easily available for recording of their statements, but their statements were recorded only on 12/11/2003, after about 21 days of the arrest of A-55 and 18 months after the alleged incident. These statements contain improvements. They are in total contrast to the previous statements of these witnesses recorded on 24/4/2003 before DCP (Detection). All these statements are stereotype and even if they are accepted at their face value, they do not disclose any material that would form the basis for conviction. A plain reading of all these statements particularly statements of PI Darekar and API Ghosalkar reveal that neither they nor A-55 had any knowledge that the two offices were of A-23 AKL Telgi. These very police officers whilst making statements before A-65 DCP (Detection) on 23/4/2003 had not stated anything about taking the office staff and stamps / stamp papers to Sahar Crime Branch. They had stated that they had visited those offices for enquiry about wanted passport agent Dr. Sayyed. After A-55's arrest on 18/10/2003, their statements with improvements were recorded on 12/11/2003.

(d) The prosecution case that police constable Anil Ghogare maintained 'Adwa Register' is equally concocted. No such Register is traced. The prosecution story that xerox copies of the alleged entires in the Adwa Register were received from a mysterious person by name D'Souza who had not even signed on the communication is also a figment of imagination. The further story that the Adwa Register contained the names of persons apprehended in raid by the officers of Sahar Crime Branch and the names of members of the staff of AKL Telgi (A-23) which visited the Sahar Crime Branch are mentioned in the xerox copy of Adwa Register received by the investigating officer is a got up story. It is also the case of the prosecution that one Zariwala had made an application in which he had mentioned the names of the same persons. Zariwala is also not traceable. This story is again shrouded in suspicion.

(e) While opposing the bail application of A-55 in the Trial Court, it was submitted that A-8 Sajju had implicated A-55 in his confessional statement. Relying on this statement, the Trial Court rejected the bail application of A-55. He carried an appeal to this court. In the reply affidavit, it was conceded that there was no confessional statement of A-8 Sajju but there was confessional statement of accused Zameer. It was stated that the statement made in the Trial Court that there was a confessional statement of A-8 Sajju was merely an unintentional slip. On 20/4/2004, during the summer vacation, the investigating agency obtained custody of A-8 Sajju, took him to Delhi and his confessional statement was shown to have been recorded there on 26/5/2004 by CBI, Economic Offences Wing.

(f) According to the prosecution A-8 Sajju in his statement has stated that on 20/5/2002 A-55 arrested Zameer with large quantity of bogus stamps and stamp papers from Andheri office. His other team had nabbed one Phiroz and other office staff with large quantity of bogus stamps and stamp papers at the Fort office. The said persons were brought to Sahar Crime Branch. On that day, A-8 Sajju received a call from A-23 AKL Telgi from Bangalore jail. He ordered A-8 Sajju to take Rs.15 lakhs from Khalid Badami, go opposite Sahar Airport and hand over the said amount to A-55. Accordingly, A-8 Sajju took the money and went to the bus stop at Sahar Airport and kept the amount in a taxi as directed by A-55. This statement is fabricated. A-55 was in charge of the Sahar Crime Branch at the relevant time. Office of the Sahar Crime Branch is situated inside Sahar International Airport, entry into which is restricted to bona fide passengers and employees. No other person can enter the Airport unless he has valid travel document or pass. A-8 Sajju, therefore, could not have entered the Sahar Crime Branch. Moreover, none of the concerned witnesses from the staff or police department have said that on 20/5/2002 after bringing the staff members from the two offices to Sahar Crime Branch, A-55 had left the premises of Sahar Crime Branch. There is also inconsistency in the two remand reports about the amount allegedly paid to A-55 on 21/5/2002. Falsity of A-8 Sajju's confessional statement is also evident from the statements of Nasir Qureshi and Naeem Shaikh. Nasir Qureshi has stated that A-8 Sajju came to the Sahar Crime Branch. It is suggested that money was paid to A-55 in the office of Sahar Crime Branch. There is, however, no direct reference to money. Naeem Shaikh has stated that A-8 Sajju met him while he was leaving Sahar Crime Branch. He has said that police were given Rs.10 lakhs but he has not said a word about A-55. Therefore A-8 Sajju's story is not substantiated by the material collected by the prosecution. Reliance placed by the prosecution on the entry made in the diary of accused Khalid about money being allegedly paid to A-8 Sajju is absurd. Such entry can never be treated as authentic.

(g) Section 24 of the MCOCA is not attracted to this case. Section 24 will be attracted only if the offender being a public servant renders help or support in the commission of an organized crime whether before or after the commission of any offence by a member of an organized crime syndicate or abstains from taking lawful measures under the MCOCA or intentionally avoids to carry out the directions of any court or of the superior police officer. Charge under Section 24 can be levelled only against the investigating officer because it is only he who can abstain from taking lawful measures under the MCOCA. The person must be associated with the crime and its investigation and the prosecuting agency must demonstrate specifically the measures which the person abstained from taking. These requisites are not present in this case and therefore Section 24 cannot be applied to A-55. This is a case where the statements of the witnesses even if they are taken at their face value, do not make out any case against A-55. Material collected by the prosecution cannot be legally translated into admissible evidence. Offence of criminal conspiracy can never be said to have been established on the basis of mere suspicion and surmises. The prosecution cannot rely on few bits here and few bits there to connect A-55 with the crime. Charge of conspiracy can be proved only if the prosecution is able to produce evidence to show not only knowledge, but also agreement. There is total absence of such evidence. A number of witnesses are accomplices and there is no independent corroboration to their evidence. A-55 cannot be charged with abetment because abetment must be by way of accessories before the commission of an offence. It must be shown that the acts attributed to the abettor were intended and designed to aid or render assistance in the commission of the activity, which amounts to an offence of organized crime. Such evidence is absent in this case. Under Section 18(1) of the MCOCA, confession of a co-accused shall be admissible provided the co-accused are charged and tried in the same case with the accused. Therefore the evidence of witnesses who are accomplices needs to be discarded. In the circumstances, this is a fit case where the order of discharge needs to be confirmed.

24. Before dealing with the rival submissions, what needs to be kept in mind is the enormity of the scam of bogus stamps and stamp papers. Forty three accused have pleaded guilty to the charge framed against them and they are convicted. These 43 include main accused A-23 AKL Telgi. He has been convicted. A very important feature of this case is the alleged involvement of high ranking officers of the police department. This case was transferred by the Supreme Court to CBI. In this connection, reference must be made to the observations made by the Supreme Court in the order passed by it on the special leave petition filed by CBI challenging this court's order granting bail to A-55. It was urged by counsel for A-55 that the Supreme Court's order is merely an interim order and, hence, it's observations should not weigh with this court. But, even if I keep the Supreme Court's observations that this court was not right in trying to discard the evidence gathered by the CBI as evidence gathered belatedly, out of consideration the Supreme Court's observation that CBI was directed to take up the investigation in March, 2004 and what the Supreme Court intended by that order was to get a thorough investigation done by the CBI, especially in the nature of unsatisfactory performance of the State Police and the large number of police officers and higher ups allegedly involved in the organized crime is very relevant. This is the reason given by the Supreme Court why the investigation was transferred and that will always have to be kept in mind. The performance of the State police was described as unsatisfactory. Its unsatisfactory performance could be due to the involvement of its high ranking police officers in the scam. This possibility cannot be ruled out. Therefore, if there are any inadequacies or shortcomings in the investigation prior to the CBI taking over the investigation, they will have to be viewed against the above peculiar background of this case. For the purpose of ascertaining A-55's involvement, this background becomes important.

25. I must begin with C.R. No.78 of 1998. Admittedly, when C.R. No.78 of 1998 was registered at DCB, CID Unit VIII, Dharavi, A-55 was attached to the said office. On 16/12/1998, two members of the organized crime syndicate i.e. Tabrej Telgi and Zameer Sanadi were arrested by the Dharavi Crime Branch. Counterfeit Government stamps and stamp papers were seized on the basis of the complaint lodged by PSI Shinde. Investigation was entrusted to A-44 Dilip Kamath. In this connection there is a statement of Subhash Hajare dated 26/11/2003. Subhash Hajare was working as the Superintendent of Stamps at the relevant time. He has stated that A-55 was known to him since 1995. According to him, in December, 1998, at 11.00 p.m., he received a call from Dharavi Crime Branch. He was told that bogus stamps have been recovered from the accused. He was called to the office. According to him, when he went to the office, A-55 and three to four other officers were present and they showed him non-judicial stamps which appeared to be bogus. There is on record statement dated 27/2/2004 of Nandkishore Kondalkar who was working as Sub-Inspector of Police at the same Unit. He has stated that on 16/12/1998 at the instance of A-55 and A-44 a trap was laid and accused Tabrej Telgi and Zameer Sanadi were arrested with fake stamps. He has further stated that he learnt that on 18/12/1998 accused AKL Telgi had met A-55 and A-44 in the office. PSI Dilip Pandurang Shinde who was attached to the same Unit has in his statement dated 27/2/2004 stated that on 16/12/1998 at the instance of A-55 and A-44 a trap was laid and Tabrej Telgi and Zameer Sanadi were arrested with bogus stamps. He has further stated that he had lodged FIR on 17/12/1998 in respect of the said incident and C.R. No.78 of 1998 came to be registered. He has also said that on 18/12/1998 he learnt from the staff that boss of Tabrej Telgi and Zameer Sanadi one AKL Telgi had come to the office and met A-55 and A-44. These statements have to be read against the background of the statement of Rasna Ankalesaria recorded under Section 164 of the Code on 22/5/2003. Rasna Ankalesaria was working as Receptionist in A-23 AKL Telgi's office at Fort . In her statement, she has stated that A-55 was a close friend of A-23 AKL Telgi.

26. It is urged that A-55 was arrested on 18/10/2003. Prior to that, SIT had with it FIR, seizure panchanamas and confessional statements of Zameer Sanadi recorded on 13/4/2003 yet A-55 was not arrested. It is pointed out that PSI Shinde has in his FIR dated 17/12/1998 merely stated that he had received reliable information. He has not named A-55. In seizure panchanama dated 16/12/1998 and 17/12/1998, A-55's name is not there. Similarly, in the confessional statement of Zameer Sanadi recorded on 13/4/2003 the name of A-55 is not there. It is urged that, therefore, it is wrong to say that A-55 was concerned with this case or he met A-23 AKL Telgi. It is submitted that on a single day on 27/2/2004, hurriedly, statements of 10 police witnesses came to be recorded to substantiate the false case that A-23 AKL Telgi met A-55 in the office on 18/12/1998. This was done because A-55 had filed bail application on 16/1/2004. Realizing that there was no material against A-55, these statements were recorded to justify A-55's arrest and to oppose the bail application.

27. It is the case of the prosecution that so far as C.R. No.78 of 1998 is concerned, it is cited by the prosecution to support its case that A-55 had knowledge about A-23 AKL Telgi's activities. That, such incident occurred and they were arrested by Dharavi Crime Branch and later on, released on bail has been stated by Zameer Sanadi and Tabrej Ahmed in their confessional statements. In the circumstances of the case, I am of the opinion that if A-55 was attached to DCB, CID Unit VIII, it is inconceivable that he would not have knowledge about C.R. No.78 of 1998 registered at the said Unit because C.R. No.78 of 1998 is an unusual case of great significance. Not every day, such cases involving huge quantity of fake stamps and stamp papers are registered at the police stations. Therefore, even if for a moment the alleged role of A-55 in this case is kept out of consideration, prima facie knowledge of C.R. No.78 of 1998 and involvement of A-23 AKL Telgi therein can be imputed to A-55. The main contention of A-55 is that these statements are recorded after considerable delay and are of doubtful veracity. In my opinion, these statements cannot be ignored because of delay in their recording. The connivance, aiding and abetting by the police force is stated to be a glaring feature of this case. It merits emphasis that C.R. No.78 of 1998 was being investigated by A-44 PI Kamat who has played major role in this case and he and A-55 were working in close association as officers of the Crime Branch. I have already reproduced the Supreme Court's observation while dealing with the special leave petition filed against the order of this court granting bail to A-55 that investigation was transferred to the CBI due to unsatisfactory performance of the police force and because number of police personnel and higher ups were involved in the organized crime. It is possible that in the earlier statements A-55's role is not highlighted because of the shoddy investigation which had to be transferred by the Supreme Court to the CBI. It is also possible that though A-55's role had come to the forefront, it was taken serious note of when investigation changed hands. In my opinion, in a case of this magnitude, in the peculiar circumstances of the case A-55 cannot be discharged on the ground of delay in recording statements. In fact, in my opinion, prima facie there is enough material indicating involvement of A-55 and it is necessary to test the veracity of all the witnesses in the trial to find out whether there was any attempt by the police to protect its own officers. At this stage, I am not inclined to accept the argument that these statements are concocted and recorded to oppose A-55's bail application because there was no evidence.

28. That takes me to the two raids conducted by the police on 20/5/2002 one at Jaitun Building at Andheri and another at BNG House, Fort, Mumbai at the instance of A-55, who was Police Inspector cum in-charge of the Sahara Airport Crime Branch Unit, Mumbai. Raid at Jaitun Building was led by A-55 and raid at BNG House was led by PI Darekar. It was submitted that about these raids, the prosecution is relying on the statements of PI Sunil Darekar, API Ravindra Patil, API Sunil Ghosalkar, PSI Rajesh Padvi, PC Rajendra Bhatt and PC Ravindra Parab, which are all recorded on 12/11/2003 after 21 days of arrest of A-55.

29. I have perused the statements. It is not necessary to reproduce all the statements, but the gist of some statements needs to be stated. PI Darekar has in his statement dated 12/11/2003 stated that on 20/5/2002, A-55 phoned him on his mobile and told him that an important information was received and he should reach near Capital Cinema at V.T. Station. Accordingly, PI Darekar went to that place. API Padvi and PC Parab were there. He then phoned A-55. A-55 told him that he was going to some other place with API Ghosalkar. He further stated that one informant will come there and raid should be effected as directed by him. In a short while, A-55's informant met PI Darekar. PI Darekar and others accompanied the informant and raided the flat at D.N. Road, Fort, Mumbai. They recovered several stamps and other documents from the said flat. A bag full of the stamps and two persons, who were present there, were taken to their office. The girls, who were present there, were asked to come to the office. At the office, PI Darekar found that A-55 had also brought two persons. By that time, the girls from Fort office had also come there. A-55 was conducting an inquiry. According to PI Darekar, as directed by A-55 he asked PC Ghogare to note down the names and addresses of those persons who had come to their office, in the register. A-55 continued with the enquiry till evening and informed him that those persons who were brought to the police station were carrying on legal business and, therefore, they should be let off. A-55 did not register any offence against those persons.

30. API Sunil Ghosalkar appears to be the person who had accompanied A-55 to the flat at Andheri on 10/5/2002 for conducting the raid. In his statement, he has deposed how he went with A-55 to the said flat and collected stamps and other documents in a bag and brought them along with two persons to their office. According to him, the girls who were present there were asked to come to their office. According to API Gosalkar, PI Darekar also came there along with his staff, two persons and a bag. According to him, the girls from Andheri office had also come there and they were asked to wait. API Ghosalkar has further stated that thereafter he came to know that A-55 had allowed all those who had come there to go. Statements of PSI Rajesh Padvi, HC Rajendra Bhatt, API Ravindra Patil recorded under Section 164 of the Code dated 12/11/2003 are to the similar effect.

31. In his statement recorded on the same day i.e. on 12/11/2003, PC Anil Gogare has stated that on 20/5/2002 at the instance of PI Darekar he brought two persons with a rexin bag to the Crime Branch Office. He came to know that A-55 and his staff had also brought some people to their office from whom stamps were recovered. A-55 was making inquiry with them. PI Darekar asked him to note down the names and addresses of 10 to 12 persons who had come there, in the register. Accordingly, he had noted their particulars in the register. He has stated that A-55 allowed all the persons to go. A further statement of PC Gogare is recorded on 17/11/2003. It appears from that statement that on 17/11/2003 PC Ghogare was shown 6 xerox copies of pages received by post. After seeing those pages, he stated that the names and addresses of 10 persons written on those pages are in his handwriting and they are persons who were brought from Jaitun Building, Andheri, and BNG Building, Fort, with stamps on 20/5/2002 to the Sahar Airport Office. He has added that A-55 had allowed them to go after inquiry.

32. These statements are attacked on the same ground of delay. It is stated that on the same day they were recorded and that indicates that they are concocted. I have already indicated why in the peculiar facts of this case, it is not possible to discard these statements on the ground of delay in their recording. It is not necessary to restate those reasons. Having perused these statements, I am of the opinion that they cannot be overlooked merely because they were recorded on the same day because they contain certain facts which prima facie do not appear to be fanciful and concocted to implicate A-55.

33. The six xerox pages of the Register, which the prosecution has described as Adwa Register received through post have come under heavy criticism. It is alleged that there is no system of maintaining any Adwa Register at the police station. It is submitted that the story that a person by name D'Souza had sent these pages through post can never be digested. It is contended that Anil Ghogare was disgruntled because A-55 had transferred him out of Sahar Airport on 12/2/2003 and, therefore, he was deposing against A-55.

34. In my opinion, whether these pages of Adwa Register are fabricated or not cannot be decided at this stage. I am unable to come to the conclusion that this story is the flight of imagination of the investigating agency. The sequence of events narrated by the witnesses and the admitted position that number of accused have pleaded guilty and have been convicted, persuade me to hold that this part of the prosecution story cannot be rejected outright but needs to be tested by adducing evidence. Similarly whether application received from one Zariwala is fictitious or not can also be decided at the trial.

35. A scathing attack has been made by counsel on the confessional statement of A-8 Sajju. I have already given the gist of A-8 Sajju's statement. According to him, he had received a call from A-23 AKL Telgi from Bangalore. According to him, A-23 AKL Telgi had told him to collect Rs.15 lakhs from Badami, go opposite Sahar Airport and handover that money to A-55. According to A-8 Sajju, he followed those instructions and, in return, A-55 released all the persons who were brought to the Sahar Crime Branch from the offices of A-23 AKL Telgi situate at Andheri and Fort.

36. It is true that in the trial court, while opposing the bail application of A-55, a statement was made that A-34 Zameer and A-8 Sajju had made confessional statements against A-55 and the trial court inter alia on the basis of these statements rejected prayer for bail of A-55. When A-55 came in appeal to this court, the prosecution in its affidavit conceded that though there is a confessional statement of A-34 Zameer, there is no confessional statement of A-8 Sajju and that statement made in the trial court was an unintentional slip. On 20/4/2004, the investigating agency obtained custody of A-8 Sajju, took him to Delhi and his confession came to be recorded on 26/5/2004 by Economic Offences Wing of CBI.

37. Undoubtedly, the prosecution must receive flak for making such statement before the court and to this extent Mr. Mundargi's criticism is justified. The investigating agency should have been more diligent and alive to its responsibility particularly in a case like this involving activities of organized crime syndicate which can have a deleterious effect on the national economy. But it is difficult for me, at this stage, to discard the entire prosecution story because of this lapse. The trial court will examine whether there is any unintentional slip as contended by the prosecution or not. It is pertinent to note that the confessional statement of A-8 Sajju was recorded at New Delhi by the CBI after it took over his custody from SIT. After his confessional statement was recorded, A-8 Sajju was brought before the Metropolitan Magistrate, New Delhi. However, he did not retract his confessional statement nor did he make any complaint.

38. It is pointed out that A-8 Sajju could not have gone to A-55's office because of the heavy security arrangement. It is pointed out that none of the staff members have said that on 20/5/2002 after the staff members were brought to the Sahar Crime Branch, A-55 went out. It is pointed out that witness Qureshi has stated in his statement that A-8 came with the money to Sahar Crime Branch and gave it to A-55 whereas A-8 Sajju has stated that he went near a bus stop in front of Sahar Airport and as directed by A-55, dropped the bag containing Rs.15 lakhs in the taxi standing there. It is contended that there is no consistency about the amount. All these alleged inconsistencies cannot be examined at this stage. Their import can be appreciated at the trial. They are certainly not of such nature as would lead to A-55's discharge.

39. Apart from A-8 Sajju's statement, there is confessional statement of Laxman Tirvir dated 24/7/2003. He has, inter alia, stated that A-8 Sajju paid Rs.15 lakhs to the police and got him and others released. A-34 Zameer Sanadi has in his confessional statement dated 13/4/2003 stated that Sahar Airport police had caught him at Jaitun Building and he was taken to Sahar Crime Branch, A-8 Sajju had come there with money and he was released by the police. Nasir Kureshi in his statement dated 23/8/2003 has also referred to the raid at Jaitun Building and the fact that he along with others were taken to Sahar Crime Branch. He has stated that A-8 Sajju came, paid Rs.15 lakhs to A-55 and, thereafter, they were released. Shaikh Naeem who was working in Jaitun building has referred to the raid. He has referred to A-8 Sajju as his boss and stated that he along with others was brought to Sahar Crime Branch. They were released after some time. A-8 Sajju told him that he had paid money to the police and the matter was settled.

40. My attention is also drawn to the transcript of the conversation received from Bangalore. This conversation is between the co-accused Rashid Kulkarni and A-23 AKL Telgi, who was lodged in Bangalore jail. In that transcript, there is a repeated reference to A-55. This reference prima facie indicates A-55's proximity to AKL Telgi and his gang. If all the material collected by the prosecution is considered in its proper perspective, it is difficult to come to the conclusion that A-55 is not concerned with the offence in question.

41. In my opinion, the evidence collected by the prosecution gives rise to strong and grave suspicion which must lead the court to prima facie conclude that there is a ground for the court to presume that A-55 has committed the offence. This court is not expected to make a roving enquiry into the pros and cons of the matter and weigh the evidence as if it is conducting a trial. Probative value of the material cannot be gone into at this stage. Undoubtedly, the basic infirmities and broad probabilities can be considered. It is possible that there are prima facie some infirmities and shortcomings in the prosecution evidence, which we find in several cases. But, I am of the opinion that they are not of such nature as to persuade me to throw the entire case of the prosecution against A-55 overboard at this stage and discharge A-55. It is urged that charge of conspiracy cannot be sustained because evidence of agreement is absent here. The prosecution cannot rely on a few bits here and a few bits there to make out a case of conspiracy. I am unable to appreciate this argument. The prosecution must be given an opportunity to lead evidence to substantiate its case of conspiracy. Whether the bits of evidence put together make out conspiracy can be decided when evidence is adduced. At this stage, it cannot be said that conspiracy theory is baseless. The argument that prosecution case rests on the evidence of accomplices and their evidence cannot be relied upon unless corroborated will also have to be rejected. Prima facie, it appears that there are several independent pieces of evidence which together go to make the prosecution case. Whether there is corroboration or not, is again a matter of evidence which can be appreciated at the trial.

42. So far as application of Section 24 of the MCOCA is concerned, it is difficult for me to accept the submission that Section 24 is attracted only if the person concerned is the investigating officer. Section 24 does not say so. An officer may not be the investigating officer, but may be closely associated with investigation, or with the investigating officer. He may in connivance with the investigating officer render support to the commission of organized crime or may actively prevail upon the investigating officer to abstain from taking measures under the MCOCA. His position may be such that he may influence the investigating officer not to take the required steps. Such a person would be covered by Section 24. I am unable to give a restricted meaning to Section 24 because it will frustrate the purpose of the MCOCA. At this stage, I am of the opinion that there is sufficient evidence collected by the prosecution to frame charge under Section 24 of the MCOCA.

43. This case has national ramifications. Several accused including the main accused have pleaded guilty and they have been convicted. There is a possibility that this scam had the blessings and assistance of some high ranking police officers. Their involvement needs to be gone into and probed. Prima facie, I feel that there is sufficient material indicating that A-55 has facilitated the continuing unlawful activities of the organized crime syndicate; that he has shielded the members of the organized crime syndicate from rightful legal punishment and he has abetted and knowingly facilitated the commission of an organized crime. The material collected by the prosecution gives rise to a strong and grave suspicion leading the court to presume that A-55 has committed the offence. The Special Judge has mis-directed herself in discharging him. She has failed to take into account several vital pieces of evidence collected by the prosecution which prima facie indicate A-55's involvement. The order passed by the Special Judge discharging A-55 is, therefore, liable to be set aside.

44. I have already referred to the judgments of the Supreme Court in Tanviben Devitia and Sajjan Singh, where the Supreme Court has held that the third judge is free to decide the appeal by resolving the difference in the manner he thinks proper and that the third judge is required to examine the whole of the case independently and he is not bound by any such opinion of the Division Bench. In this case, since both the learned Judges have differed on practically every aspect - factual as well as legal, and points of difference have not been framed, learned counsel have, in the light of the Supreme Court's judgments in Tanviben Devitia and Sajjan Singh, requested me to decide the matter afresh. I have, therefore, not referred to the reasoning appearing in the differing judgments.

45. In the view that I have taken, I pass the following order :

46. The impugned judgment and order dated 26/6/2007 passed in MCOCA Special Case No.2 of 2003 is set aside. The Special Judge is directed to frame the charge and proceed against A-55 Vashitha Rambhau Andhale. It is clarified that all observations made by me touching the merits of the case are prima facie observations. The Special Judge shall decide the case independently and uninfluenced by the said observations.

47. The appeal is disposed of in the aforesaid terms.

Ordered accordingly.