Criminal Bail Application No.333 of 2011,Criminal Application No.464 of 2011,Criminal Application No.556 of 2011

9th November, 2011

Petitioner Counsel: Mr. Shrikant Shivade,Mr. M.S. Mohite,Mrs. Rohini Salian,Mr. Mandar Goswami,Mr. V.T. Tulpule,Mr. H.J. Kandalkar
Respondent Counsel: Mr. J.P. Kharge,Mrs. S.D. Shinde,Mrs. Rohini Salian

Cases Cited:
State of Maharashtra Vs. Pragyasinh Chandrapalsinh Thakur & ors, 2010 ALL MR (Cri) 2800 [Para 7]
Central Bureau of Investigation Vs. Pradeep Bhalchandra Sawant and another, 2007 ALL MR (Cri) 2934 (S.C.)=2007(2) Mh.L.J. (Cri) 885 [Para 12]
Fakhruddin Ahmad Vs. State of Uttarnchal & Anr., 2008 ALL SCR 2309 : (2008) 17 SCC 157 [Para 15]
State of W.B. Vs. Mohd. Khalid, (1995) 1 SCC 684 [Para 16,17,19]
Pakala Narayana Swami Vs. Emperor, AIR 1939 PRIVY COUNCIL 47 [Para 26]
Om Prakash Vs. State of U.P., AIR 1960 SC 409 [Para 26]
Kartar Singh Vs. State of Punjab, 1994 Cri.L.J. 3139 [Para 27]
Prabhu Dayal Deorah etc. Vs. District Magistrate, Kamrup and others, AIR 1974 SC 183 [Para 29]
Bharatbhai Alias Jimi Premchandbhai Vs. State of Gujarat, 2003 ALL MR (Cri) 164 (S.C.)=(2002) 8 SCC 447 [Para 30]
Lal Singh Vs. State of Gujarat and another, 2001 ALL MR (Cri) 1038 (S.C.)=2001 Cri.L.J. 978 [Para 31]
State(Nct of Delhi) Vs. Navjot Sandhu Alias Afsan Guru, 2005 ALL MR (Cri) 2805 (S.C.)=2005 SCC (Cri) 1715 [Para 32]
Kashmira Singh Vs. State of M.P., 1952 SCR 526 [Para 32]
State Through Superintendent of Police, CBI/SIT Vs. Nalini and Others, (1999) 5 SCC 253 [Para 33]
The State of Maharashtra Vs. Jagan Gagansingh Nepali alias Jagya and another, 2011 ALL MR (Cri) 2961 (F.B.)=Criminal Appeal No.20 of 2011 [Para 35,37]
Zameer Ahmed Latifur Rehman Sheikh Vs State Of Maharashtra, 2010 SCALE 4 276 : 2010 ALL SCR 1001 [Para 36,37]
Shaheen Welfare Association Vs. Union of India and Others, (1996) 2 SCC 616 [Para 40]
Ranjitsing Bragmajeetsing Sharma Vs. State of Maharashtra and Another, 2005 ALL MR (Cri) 1538 (S.C.)=(2005) 5 SCC 294 [Para 41,45]
Vasanthi Vs. State of A.P., 2005 ALL MR (Cri) 2560 (S.C.)=(2005) 5 SCC 132 [Para 41]
Aatif Nasir Mulla Vs. State of Maharashtra, 2006 ALL MR (Cri) 338 [Para 41]
Giani Pratap Singh Vs. State of Rajasthan and Another, 1995 SCC (Cri) 992 [Para 42]
Anil Kumar Tulsiyani Vs State Of U.P., 2006 ALL MR (Cri) 2653 (S.C.)=2006 SCC (Cri) 2 565 [Para 43]

JUDGMENT

JUDGMENT :- These two applications for bail have been filed by two persons arrested and chargesheeted in connection with bomb blasts 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 Crimes 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 Terrorism/Insurgency activities. He claims to have knowledge about various terror outfits. Applicant Ajay Rahirkar is a businessman/industrialist by profession. Coaccused (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.

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 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 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.

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 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 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)

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.

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 court 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 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 chargesheet 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 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 chargesheets 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 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 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 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 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.

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.

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 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 trial, (CENTRAL BUREAU OF INVESTIGATION vs. PRADEEP BHALCHANDRA SAWANT and another, 2007(2) Mh.L.J. (Cri.) 885 : [2007 ALL MR (Cri) 2934 (S.C.)]) 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.

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 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.

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 : [2008 ALL SCR 2309], (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)

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 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 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.

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 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. 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.

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.

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 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 chargesheets 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 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 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 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 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 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 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 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 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' 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 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 subsection (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 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 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 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 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 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 : [2003 ALL MR (Cri) 164 (S.C.)]. 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 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 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 : [2001 ALL MR (Cri) 1038 (S.C.)] 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 : [2005 ALL MR (Cri) 2805 (S.C.)], the Court noted the provisions relating to confessions and quoted with approval from earlier Judgments to the 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 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 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 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 NALINI AND OTHERS, reported at (1999) 5 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 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 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 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 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 coconspirator, 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 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 his 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 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, B enrolling C, and so on; and all will be members of a single conspiracy if they so intend and agree, even 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. 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 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 any 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 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 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.

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 to and growing out of the original purpose. A conspirator is not responsible, however, for acts done by a coconspirator 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.

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 : [2011 ALL MR (Cri) 2961 (F.B.)] has already clarified that the advantage 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 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 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 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 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 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 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 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. 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 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 chargesheets 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 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". 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 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 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."

(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 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 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 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 : [2011 ALL MR (Cri) 2961 (F.B.)] 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 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 [2011 ALL MR (Cri) 2961 (F.B.)] 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 learned Special Public Prosecutor since conspiracy is hatched in secrecy, such titbits 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 antiterror 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 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 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 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 Vs. STATE OF MAHARASHTRA AND ANOTHER, reported at (2005) 5 Supreme Court Cases 294 : [2005 ALL MR (Cri) 1538 (S.C.)] cited by the Counsels for one of the applicants on the question of grant of bail in an offence under 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 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 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 grant 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.

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 subsection (4) of Section 21 of the Act, the court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction. The findings recorded by the court while granting or refusing bail undoubtedly would be tentative in nature, 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 : [2005 ALL MR (Cri) 2560 (S.C.)] 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 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 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 [2005 ALL MR (Cri) 1538 (S.C.)] to 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 [2005 ALL MR (Cri) 1538 (S.C.)] 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 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.

Order accordingly.