Dismissed

Shri Anil Umrao Gote v. the State of Maharashtra

Bombay HC3 Nov 2004APPLN/3978/2004

Case brief

AI extract

What is this about?

This common order dismissed two criminal applications by an accused in the Stamp Scam case. The court rejected the prayer for discharge and bail, holding that sufficient prima facie material existed to frame charges under MCOCA and statutory bars to release applied.

What did the court decide?

Both Criminal Applications No. 3978 of 2004 and No. 3979 of 2004 were dismissed, rejecting the prayers for discharge and bail.

Shri Anil Umrao Gote Vs the State of Maharashtra — Corruption | Bombay HC (2004)

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 IN THE HIGH COURT OF JUDICATURE OF BOMBAY

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 CRIMINAL APPELLATE JURISDICTION
 CRIMINAL APPLICATION NO. 3978 OF 2004

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 Shri Anil Umrao Gote ... Applicant

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 versus

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 1) The State of Maharashtra;

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 2) The Central Bureau of

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 Investigation, Mumbai. ... Respondents
 ...
 Mr. P.M. Pradhan, for the Applicant.

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 Mr. A.S. Gadkari, A.P.P., for Respondent No.1.
 Mr. V.T. Tulpule, Senior Counsel, for Respondent
 No.2.

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 ...
 WITH

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 CRIMINAL APPLICATION NO. 3979 OF 2004

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 Shri Anil Umrao Gote ... Applicant

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 versus

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 1) The State of Maharashtra;

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 2) The Central Bureau of

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 Investigation, Mumbai. ... Respondents

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 Mr. A.P. Mundargi, with Ms. S.D. Khot and Mr.

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 Maheen Pradhan, for the Applicant.

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 Mr. D.R. More, A.P.P., for the Respondent No.1.
 Mr. V.T. Tulpule with Mr. Raja Thakare and Mr.
 A.M. Chimalkar, for Respondent No.2.

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 CORAM : A.M.KHANWILKAR,J.

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 3rd November 2004

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 ORAL JUDGMENT :

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 1. This Common Order will dispose of both
 the above-numbered Criminal Applications filed by
 the same Applicant, who has been named as Accused
 No. 45 in connection with offence registered
 with Bund Garden Police Station, Pune, known as
 Stamp Scam case. By Criminal Application No.
 3979 of 2004, the Applicant prays that he be
 released on bail in connection with the alleged
 offence, whereas Criminal Application No. 3978
 of 2004 is filed questioning the decision of the
 learned Special Judge, Pune, dated July 23, 2004,
 below Exhibit 396, rejecting the Applicant’s
 prayer for discharge from the alleged offence and

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 to set him at liberty. After the investigation,
 charge sheet has been filed against the concerned
 accused, including the Applicant, accused No.
 45. Insofar as the Applicant is concerned, the
 charge against him is as follows (pages 82 to 85
 - paras 111 to 123 - of Crl.Appln. No. 3979 of
 2004) :

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 "111. As stated herein before, one
 handwritten note book maintained by
 accused Khalid Abdul Sattar Badami (A-26)
 containing the details of financial
 transactions was seized. This note book
 revealed that the below mentioned amounts
 were given to Anil Umrao Gote (A-45) from
 time to time.

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`________` `Sr.No.`	`________________________________` `Date Amounts`
`________` `01`	`________________________________` `On 28.12.2001 Rs. 1 lac`
`02`	`On 25.01.2002 Rs. 1 lac`
`03`	`On 01.03.2002 Rs. 1 lac`
`04`	`On 19.02.2002 Rs. 1 lac`
`05`	`On 23.03.2002 Rs. 1 lac`
`06`	`On 23.03.2002 Rs.1,000/-`
`07` `________`	`On 10.04.2002 Rs. 5 lakhs` `_________________________________`

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 112. Abdul Karim Ladsab Telgi (A-23) was
 arrested by the Bangalore Police as early
 as in the month Nov. 2001 in a case of
 Counterfeit Govt. Stamps and Stamp
 Papers and though he was in custody Anil
 Umrao Gote (A-45) continued to receive
 undue pecuniary advantage from the ill
 gotten gains of the Organized Crime
 Syndicate frequently as mentioned in the
 note book and stated herein above. The
 above mentioned note book was therefore
 sent to the State Examiner of Questioned

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 Documents for Handwriting Expert’s
 opinion. The expert has opined
 positively on the handwriting of Khalid
 Abdul Sattar Badami (A-26). Thus it was
 clear that Anil Umrao Gote (A-45) who is
 a Public Servant by virtue of the fact
 that he is an MLA had received illegal
 gratification other than legal
 remuneration with a view to gain
 pecuniary advantage for himself from the
 activities of the Organized Crime
 Syndicate without any public interest.

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 113. Investigation revealed that the
 accused Anil Umrao Gote (A-45) a member
 of Legislative Assembly of Maharashtra
 elected in 1989 from Dhule Constituency
 was very closely associated with the
 prime accused Abdul Karim Ladsab Telgi
 (A-23) since 1993. Anil Umrao Gote
 (A-45) is also the President of Samajwadi
 Janata Party, Maharashtra.

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 114. The close association of Anil Umrao
 Gote (A-45) with Abdul Karim Ladsab Telgi
 (A-23) is revealed from the records of
 Kisan Trust, Dhule which trust was
 founded by Anil Umrao Gote (A-45). One
 of the main pre-condition in the bye-laws
 of the trust was that no person could
 become a trustee of the said trust unless
 he was an ordinary resident of Dhule
 District. In order to overcome this
 hurdle and induct Abdul Karim Ladsab
 Telgi (A-23) as a trustee of the Kisan
 Trust, the residential address of this
 accused was shown as 1321, Galli No. 4,
 Dhule which is in fact the residential
 address of Anil Umrao Gote (A-45). The
 statements of the office bearers of Kisan
 Trust namely Parasmal Hukumchand Tathed
 (Treasurer), Ramesh Jairam Parkhe
 (Assistant), Jitendra Sohanlal Sewak
 (Assistant), Dipak Purushottamdas Shah
 (Accounts Assistant), Anand Raghuvir
 Pednekar (employee) and Govind Vithal
 Varute (Assistant) have been recorded.
 The witnesses have deposed that
 deliberate manipulations have been

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 carried out and the records have been
 fabricated with a view to conceal the
 association of Anil Umrao Gote (A-45)
 with Abdul Karim Ladsab Telgi (A-23).

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 115. The accounts of Kisan Trust, Dhule
 when scrutinized revealed that these
 accounts had also been fabricated and
 funds which had flowed in and had been
 provided by Abdul Karim Ladsab Telgi
 (A-23) had deliberately been camouflaged
 by making false receipts in the names of
 prominent personalities like Ram
 Jethmalani, MP and Lalit Suri also a MP
 etc. both these personalities when
 examined have flatly denied having given
 any donations whatsoever to Kisan Trust,
 Dhule. Hence the only logical conclusion
 is that the amount namely, Rs.1,11,000/-
 reflected in the accounts as a donation
 by Abdul Karim Ladsab Telgi (A-23), Rs.5
 lakhs reflected in the accounts as a
 donation by Ram Jethmalani, MP, Rs. 5
 lakhs reflected in the accounts as a
 donation by Lalit Suri, MP and advances
 amounting to Rs.15,20,000/- purportedly
 having been given by Dilip Madhav
 Agraharkar and seven others were in fact
 all funds provided by Abdul Karim Ladsab
 Telgi (A-23) to Anil Umrao Gote (A-45)
 through the Kisan Trust, Dhule.

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 116. Statement of witness and
 confessions of the accused persons
 recorded in this case reveal that Anil
 Umrao Gote (A-45) was frequently visiting
 the office and printing press of Abdul
 Karim Ladsab Telgi (A-23) from where the
 illegal activities of the Organized Crime
 Syndicate were being conducted. On 16th
 Jan. 1996 Abdul Karim Ladsab Telgi
 (A-23) was declared as a proclaimed
 offender by Metropolitan Magistrate,
 Mumbai and whilst such a proclamation was
 in existence on 17th Nov. 1997 Abdul
 Karim Ladsab Telgi (A-23) was present at
 a public function of Kisan Trust, Dhule
 arranged by Anil Umrao Gote (A-45).

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 117. Investigation revealed that accused
 Anil Umrao Gote (A-45) had used his
 political clout to obtain a Govt. Stamp
 Vending License for accused Abdul Karim
 Ladsab Telgi (A-23) as far back as in the
 year 1994. In the year 1995 and later in
 the year 1999, Abdul Karim Ladsab Telgi
 (A-23) was arrested in Counterfeit Stamp
 cases in Mumbai and Hyderabad and this
 fact was widely published in all the
 major news papers. In the year 1995, the
 Govt. Stamp Vending License of Abdul
 Karim Ladsab Telgi (A-23) had been
 cancelled by the Supdt. Of Stamps as he
 had misused the said license.

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 118. During the scrutiny of documents
 seized during the search on 10.06.2002 at
 13, Botawala Chambers, Fort, Mumbai from
 where counterfeit Govt. Stamps and stamp
 papers worth Rs.140,13,75,720/- were
 seized, one photocopy of a letter on the
 letter head of Ram Jethmalani, Minister,
 Urban Affairs and Employment, Govt. of
 India, New Delhi dtd. 2.06.1998
 addressed to Shri Yashwant Sinha, Hon’ble
 Minister of Finance, North Block, New
 Delhi along with its two enclosures
 consisting of copies of letters addressed
 to the General Manager, India Security
 Press and the Jt. Secretary (Currency &
 Coinage) Govt. of India, Ministry of
 Finance by Ganga Prakash, the then DGM,
 ISP, Nasik and also a document purporting
 to be a production programme and targets
 for the year 1998-1999 (April 98 to March
 99) prepared by Kamta Prasad, Dy. Gen.
 Manager, ISP, Nasik have been seized. In
 order to confirm the veracity of this
 letter, further investigation in this
 regard was carried out. Shri Ram
 Jethmalani, MP was examined when he
 stated that Anil Umrao Gote (A-45) had
 brought Abdul Karim Telgi (A-23) to him
 for recommendation of Ganga Prakash for
 promotion and at his (Anil Gote’s)
 request, Shri Ram Jethmalani had
 forwarded the said letter to Shri
 Yeshwant Sinha, the then Minister for

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 consideration.

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 119. Shri Ganga Prakash, has stated that
 he had some grievances regarding his
 promotion as General Manager and since
 Abdul Karim Telgi (A-23) assured him of
 using his political connections to
 approach Finance Ministry, he had given a
 file containing the above letters to
 Abdul Karim Telgi (A-23). Investigations
 revealed that both Anil Umrao Gote (A-45)
 and Abdul Karim Telgi (A-23) had traveled
 to Delhi from Mumbai by Air on 26.11.1998
 and stayed at Hotel Ashoka, New Delhi and
 the payment of the bill for this stay at
 Delhi was made by Abdul Karim Telgi
 (A-23).

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 120. It has also come in the
 investigation that the accused Anil Umrao
 Gote (A-45), vide his letter on letter
 head dtd. 08.02.2001, written to the
 Chairman, BEST, Mumbai requested to allow
 Abdul Karim Telgi (A-23) to pay
 Rs.3,64,473/- towards Electricity charges
 of Yousuf Manzil (Alankar Guest House) in
 10 installments.

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 121. The above fact clearly establishes
 that Anil Umrao Gote (A-45) used his
 political connections in favour of
 accused Abdul Karim Telgi (A-23) against
 considerations of pecuniary benefits and
 undue economic advantages from the
 illegal activities of the Organized Crime
 Syndicate headed by the kingpin Abdul
 Karim Ladsab Telgi (A-23).

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 122. Anil Umrao Gote (A-45) and Abdul
 Karim Ladsab Telgi (A-23) had also stayed
 at Hotel Diplomat, New Delhi during the
 period from 28.10.1999 to 30.10.1999.

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 123. Investigation reveals that accused
 Anil Umrao Gote (A-45) whilst at Mumbai,
 used to stay at a luxurious Hotel Ritz,
 Churchgate, Mumbai during the period from
 1997 to June 2003 and the payment for the
 same amounting to Rs.30,91,440/- was made

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 in cash. On being given an opportunity
 to explain the source of these funds,
 Anil Umrao Gote (A-45) could not give any
 satisfactory explanation and the only
 conclusion drawn is that this payment is
 made from the illegal pecuniary gains
 obtained from the activities of the
 Organized Crime Syndicate. . . ."

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 The abovesaid prosecution case is founded on the
 materials collected during investigation
 including the statements of Altaf Nasipudi
 Rashana Ankalesariya, Nilesh Kelkar, Vijay
 Salunke, co-accused Tabrez Telgi, Ramesh Parakhe,
 Dilip Agraharkar, the then Union Minister Ram
 Jethamalani, and confessional statements of
 co-accused Uday Savant, Sirajuddin Nasipudi,
 Dashrath Sawant, Vijay Sawant, Laxman Tirveer.
 Besides, the prosecution is relying on the
 panchnamas as well as handwritten note book
 recovered which was maintained by Accused No. 26
 containing details of financial transactions
 mentioning substantial payment made to the
 Applicant from time to time, records of Kisan
 Trust, Dhule, which are stated to be fabricated
 to create camouflage by showing that the prime
 accused Telgi had ceased to be trustee and
 further that amounts were deposited as donation
 in the trust in the name of personalities like

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 Ram Jethamalani, M.P. and Lalit Suri, M.P., who,
 in turn, have denied having contributed such
 substantial amount. Prosecution is also relying
 on the material which would indicate that the
 Applicant had used his political clout for
 securing Government Stamp Vending Licence for the
 prime accused Abdul Karim Ladsab Telgi and in
 similar manner espoused the cause of the prime
 accused before the BEST, Mumbai. The prosecution
 is also relying on the record to indicate that
 the prime accused spent on the hotel bills for
 the Applicant during his stay in luxurious hotel
 in Mumbai as well as New Delhi. The materials on
 record not only point out towards the close
 association of the Applicant with the prime
 accused, but his involvement in facilitating the
 illegal and unlawful activities of the prime
 accused and in return receiving pecuniary
 benefits. In substance, the prosecution case is
 that the case on hand is one of well-planned
 conspiracy hatched by the prime accused Abdul
 Karim Ladsab Telgi through the members of the
 Organized Crime Syndicate with the active help of
 public servants, politicians and bureaucrats,
 which activities were incessantly carried on

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 since 1993 by manufacturing and selling the
 counterfeit Government stamps and stamp papers,
 acquiring and possessing equipments, machinery
 and materials for committing forgery, etc. It is
 the prosecution case that there is material on
 record to indicate that even after the arrest of
 prime accused Abdul Karim Ladsab Telgi, who was
 lodged in Karnataka Prison, the Applicant herein
 was in constant touch with the prime accused and
 thus was a co-conspirator, so as to further the
 unlawful and illegal activities of the Organized
 Crime Syndicate. On the above basis, the
 Applicant is facing trial for offences punishable
 under sections 120-B, 419, 420, 467, 468, 471,
 472, 473, 474, 475, 476, 34, 109 of the Indian
 Penal Code, read with section 3(1)(ii), 3(2),
 3(4), 3(5), 4 and 24 of the Maharashtra Control
 of Organised Crime Act, 1999 (hereinafter
 referred to as "the MCOCA").

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 2. Mr. Pradhan, learned Counsel for the
 Applicant, on the other hand, submits that the
 Applicant deserves to be discharged. He has
 essentially advanced three-pronged submissions to
 contend that the Applicant deserves to be

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 discharged in relation to the alleged offence.
 The first contention is that there is no valid
 approval for recording of the information about
 the commission of the offence of organized crime
 under the MCOCA as required by section 23(1)(a)
 of the Act. If it is so, no investigation could
 have proceeded with in connection with the said
 offence nor the Applicant can be forced to suffer
 the trial, for the same being without
 jurisdiction. To support this contention,
 reliance was placed on the dictum of the Apex
 Court reported in 1995(5) S.C.C. 302 in the case
 of Anirudhsinhji Karansinhji Jadeja and another

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 v. State of Gujarat. It is next contended that
 there is no evidence on record to attract the
 provisions of the special enactment, namely,
 MCOCA, and for which reason, the Applicant will
 have to be discharged in relation to offences
 under MCOCA. It is then contended that there is
 no evidence on record to establish the link of
 the Applicant in relation to the alleged offence.
 It is contended that even if the prosecution
 evidence is accepted as it is, the role of the
 Applicant is only limited to involving the prime
 accused in the affairs of the Kisan Trust of

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 which the Applicant was the Chairman. Besides,
 the evidence would indicate that the Applicant
 had introduced the prime accused to personalities
 like Ram Jethamalani, for getting recommendations
 in connection with the press licence. And
 similarly, the Applicant had made recommendation
 for relaxing the payment of electricity charges
 to BEST Committee. But there is nothing to show
 that the prime accused had any causal connection
 with the Alankar Guest House, for which such
 recommendation was made. It is further contended
 that merely because the Applicant had shown the
 address of prime accused, which was his personal
 address, so as to make the prime accused eligible
 for being elected as trustee of Kisan Trust, that
 will be of no avail and cannot be the basis to
 assume that the Applicant was himself member of
 the organized crime syndicate. On the same
 argument, it is contended that merely because
 amounts in the name of personalities like Ram
 Jethamalani and Lalit Suri were deposited, it
 cannot be assumed that the said amounts were
 contributed by the prime accused Telgi; and even
 such amounts were to be contributed by Telgi,
 that will make no difference, because the

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 contribution was made to Kisan Trust which was a
 public trust and not received by the Applicant as
 pecuniary benefit for himself. It is also
 contended that the prosecution case that the
 Applicant was in constant contact with the prime
 accused Telgi even after he was declared as
 proclaimed offender is of no relevance, for it is
 seen that the prime accused has been attending
 public functions even thereafter, and shared the
 dais along with the State dignitaries. It is
 contended that merely because the Applicant
 maintained contact with the prime accused, that
 by itself cannot be the basis to invoke stringent
 provisions of the MCOCA qua the Applicant.
 Reliance was placed on the unreported decision of
 this Court in Sameer Madan Patil v. The State of
 Maharashtra decided on 29th January 2003 in
 Criminal Application No. 1381 of 2002. Insofar
 as documents recovered by the prosecution during
 search are concerned, it is contended by Mr.
 Pradhan that the same are of no avail because the
 entries in the said diary mentioned name as
 "Anna", which is a common or generic name. It is
 also contended that most of the instances, which
 are pressed into service by the prosecution, are

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 for the period prior to coming into force the Act
 of 1999 and if it is so, the same cannot be
 reckoned and cannot be made basis for applying
 the offences punishable under the MCOCA. On the
 above arguments, Mr. Pradhan contends that the
 Applicant deserves to be discharged and the Court
 below has committed manifest error in rejecting
 the application for discharge preferred by the
 Applicant.

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 03. Mr. Mundargi, learned Counsel for the
 Applicant to support the prayer for bail, in
 addition to the arguments canvassed by Mr.
 Pradhan, submits that the charge against the
 Applicant is that he had received substantial
 amounts from the prime accused Telgi and had
 maintained close association with the prime
 accused since 1993, made Telgi trust of Kisan
 Trust and fabricated record to show that he has
 disassociated himself from the prime accused,

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 deposited huge donations in the name of
 personalities, which amount was obviously
 received from prime accused Telgi, used political
 clout to obtain Government Stamp Vending Licence

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 for the prime accused. He further submits that
 the supplementary charge sheet filed would
 further indicate that the Applicant maintained
 constant contact with the prime accused Telgi,
 who was lodged in Karnataka Jail. Relying on the
 observations of this Court in the case of Bharat
 Shantilal Shah & others v. State of Maharashtra,
 reported in 2003 Bom.C.R.(Cri) 947, Mr. Mundargi
 contends that expression "abetment" has been
 defined in the Act and unless there is material
 to show that the Applicant’s association was in
 aid or assistance to anything done by the
 organized crime syndicate, according to him, mere
 social association of the Applicant with member
 of the organized crime syndicate by itself will
 not make the Applicant liable for the alleged
 offence. He contends that even any assistance
 rendered by the Applicant, assuming that he had
 knowledge that the prime accused was a criminal,
 that is of no consequence. According to him, to
 attract the provisions of the special enactment,
 there should be material on record to show that
 the Applicant had intentionally or knowingly
 facilitated the commission of an organized crime
 or that he had knowledge that the property,

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 namely, the amount received from the prime
 accused Telgi was a tainted property. He further
 submits that the receiving of unaccounted wealth
 only after the Act has come into force at best
 will attract offence under section 4 of the Act.
 He submits that even assuming that the Applicant
 had tried to tamper with the record of the Kisan
 Trust, that would only indicate that the
 intention of the Applicant was to distance
 himself from the prime accused Telgi, but such an
 act cannot be said to be offence under the
 special enactment. The learned Counsel appearing
 for the Applicant have taken me through the
 relevant statements and the record to contend
 that the material which has come on record was
 not sufficient to hold that any offence, much
 less offence under the provisions of the MCOCA
 has been made out against the Applicant. Learned
 Counsel contends that on examining the materials
 already on record, this Court may proceed to hold
 that there are reasonable grounds to believe that
 the Applicant is not guilty of the alleged
 offence and enlarge the Applicant on bail.
 Learned Counsel contends that the material on
 record does not support the prosecution case that

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 the hotel bills or the travel bills of the
 Applicant were paid by prime accused Telgi.
 According to the learned Counsel for the
 Applicant, the relevant materials have been
 collected only after the Applicant came to be
 arrested, so as to falsely implicate the
 Applicant in the alleged offence. This has been
 done out of political rivalry.

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 04. On the other hand, Mr. Tulpule, learned
 Counsel for the prosecution submits that there is
 no substance in any of the arguments canvassed on
 behalf of the Applicant either in support of
 prayer for discharge, or, for that matter, grant
 of bail. He submits that there is sufficient
 material on record to connect the Applicant with
 the commission of the alleged crime. According

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 to him, it is not open for this Court to
 ascertain the truth in the prosecution evidence,
 but the Court will have to only prima facie sift
 and weigh the evidence to find out whether there
 is some material on record to connect the
 Applicant with the alleged offence; and if it is
 so, both the prayer for discharge as well as for
 bail will have to be rejected. Insofar as the

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 argument about the invalidity of registration of
 offence under the special enactment is concerned,
 learned Counsel contends that the same is
 ill-founded. He has relied on the record, which
 indicates that originally the offence was
 registered under the ordinary law, but during the
 investigation, it transpired that the nature of
 offence was such that it attracted the provisions
 of special enactment, namely, MCOCA. Thereafter,
 approval was obtained from the appropriate
 authority, who, in turn, has accorded the same;
 only whereafter the provisions of MCOCA have been
 applied to the pending case. He submits that
 such a course was legitimate and, therefore, the
 argument that the entire action is without
 jurisdiction for want of valid approval is
 without any basis. He further submits that on
 reading the materials on record and taking the
 totality of circumstances into account, it is not
 possible to take the view that there is no
 sufficient material on record to frame charge in
 connection with the alleged offence. Learned
 Counsel has placed reliance on the unreported
 decision of our High Court in the case of
 Babanrao Tukaram Ranjane v. The State of

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 Maharashtra, decided on 3rd September 2004 in
 Criminal Application No. 2252 of 2004, to
 contend that the argument regarding validity of
 approval accorded for recording of information
 under the MCOCA has already been considered and
 rejected. Accordingly, it is not open for this
 Court to take a different view in the matter.
 Learned Counsel for the prosecution contends that
 further investigation of the case is in progress
 and during the further investigation, additional
 material has become available to the
 investigating agency. Compilation of the
 additional material which included transcript of
 the intercepted telephonic conversation between
 the Applicant and prime accused Telgi have become
 available, copy whereof was made available to me
 for my perusal.

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 05. Having considered the rival submissions,
 I have no hesitation in observing that both the
 applications preferred by the Applicant herein,
 accused No. 45, can be disposed of together,
 inasmuch as on account of special provisions
 under section 21(4) of the Act, no Court can
 enlarge the accused named in the commission of

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 offence under the special enactment, unless the
 Court was to be satisfied that there are reasons
 to believe that the Applicant is not guilty of
 the alleged offence and also that if released on
 bail, he is not likely to jump the bail. Even
 while considering the prayer for discharge, the
 Court will have to apply the same principle,
 namely, to sift and weigh the evidence on record
 to find out whether there is some material to
 frame charge against the accused. Accordingly, I
 thought it appropriate to dispose of both these
 applications by this common Order.

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 06. Coming back to the main argument advanced
 on behalf of the Applicant, that no valid
 approval has been accorded in the present case,
 as was required under section 23(1)(a) of the
 Act, three-fold arguments have been raised. It
 is first contended that no approval is obtained
 for recording of information as against the
 Applicant in connection with the alleged offence
 at all. It is next contended that assuming that
 the approval has been granted, the same is not
 valid, because Mr. Jaiswal was not competent to
 grant approval under section 23(1)(a) of the Act,

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 as he himself was the investigating officer. It
 is next contended that the proposal for approval
 itself was defective and the authority instead of
 granting approval has proceeded to straightaway
 grant sanction as was required by section 23(2)
 of the Act. Before I proceed to examine these
 aspects, it is appropriate to advert to section
 23 of the Act. Section 23 of the Act reads thus:

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 "Cognizance of, and investigation into,
 an offence. ---

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 (1) Notwithstanding anything contained in
 the Code,---

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 (a) no information about the
 commission of an offence of
 organised crime under this Act,
 shall be recorded by a police
 officer without the prior
 approval of the police officer
 not below the rank of the Deputy
 Inspector General of Police;

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 (b) no investigation of an
 offence under the provisions of
 this Act shall be carried out by
 a police officer below the rank
 of the Deputy Superintendent of
 Police.

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 (2) No Special Court shall take
 cognizance of any offence under this Act
 without the previous sanction of the
 police officer not below the rank of
 Additional Director General of Police."

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 On plain reading of the above provision, it is

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 seen that it obligates obtaining of prior
 approval of the police officer not below the rank
 of the Deputy Inspector General of Police before
 recording of the information about the commission
 of an offence of an organized crime under the
 Act. To that extent, Mr. Pradhan has rightly
 relied on the observations in the decision in
 Anirudhsinhji Jadeja’s case (supra). However,
 what has been overlooked is that the offence
 under the MCOCA is not an independent offence,
 but going by the relevant provisions of the Act,
 it would necessarily follow that any activity,
 which is a continuing unlawful activity by an
 individual singly or jointly either as member of
 the organized crime syndicate or on behalf of
 such syndicate, which is a cognizable offence
 punishable with imprisonment of three years or
 more, in respect of which more than one charge
 sheet have been filed before the competent Court
 within the preceding 10 years and that Court has
 taken cognisance of such offence, such successive
 unlawful activity by itself becomes an organised
 crime. In other words, the singular unlawful

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 activity would attract the provisions of ordinary
 law, but if it is continuing one, and, to wit,
 third offence of specified type which fulfils the
 requirement of provisions of the Act, it becomes
 an organised crime to be registered as an offence
 under the MCOCA. In such a situation, there are
 two options available to the police, either they
 can separately record information about the
 commission of an offence of organised crime under
 the Act after successive unlawful activity of the
 specified type are reported to have been
 committed, by or for and on behalf of organised
 crime syndicate; or invoke the provisions of the
 said enactment to the unlawful activity already
 reported, which is the successive in point of
 time. In either case, however, the police are
 obliged to obtain prior approval from the officer
 not below the rank of the Deputy Inspector
 General of Police. In the present case, the
 police have followed the later option. It is
 seen that offence under the ordinary law (Indian
 Penal Code and Bombay Stamp Act) was registered
 as CR.No. 135/2002 at Bund Garden Police Station
 on 7th June 2002. As it was noticed that the
 offence would attract the provisions of the

¶95

 :24:

¶96

 MCOCA, a proposal was submitted by the
 investigating officer of the Bund Garden Police
 Station for giving prior approval for invocation
 of the provisions of the MCOCA on 9th July 2002
 in respect of the named accused at the relevant
 time. In response to the said proposal, Mr.
 Mahesh Gauri, Joint Commissioner of Police,
 granted approval under section 23(1)(a) on 3rd
 September 2002, albeit restricted his approval in
 respect of only two accused. It is only
 thereafter the provisions of MCOCA have been
 invoked in the present case. In that sense,
 prior approval has been granted before invocation
 of the provisions of MCOCA in the present case.
 However, it was argued on behalf of the Applicant
 that as the approval granted for recording of
 information in respect of commission of offences
 under the Act was only in respect of the two
 accused, therefore impliedly rejected in respect
 of others. This submission, however, overlooks
 that approval for recording of information of
 commission of offence under the Act is always in
 respect of the offence and not qua the offender.
 In other words, although the approval granted by
 the designated officer makes reference to only

¶97

 :25:

¶98

 two out of the several accused, that will make no
 difference. If any other argument was to be
 accepted, it would follow that before naming any
 other accused other than the two referred to in
 the order of approval, even if their involvement
 is noticed from the materials collected during
 the investigation, it would be necessary for the
 investigating officer to seek a fresh approval.
 That cannot be countenanced. For, the police is
 not required to record a separate information of
 the commission of offence against the accused
 found to be involved in the offence under the Act
 from the materials collected during the
 investigation but only name him in the offence
 already registered. The safeguard with regard to
 persons who have been named subsequently during
 the investigation or after the approval for
 recording of information is provided by the Act
 at the stage of taking cognizance of the offence;
 as section 23(2) provides that no Special Court
 shall take cognizance of any offence under the
 Act without the previous sanction of the Police
 Officer not below the rank of Additional Director
 General of Police. Be that as it may, it will be
 preposterous to accept the argument that section

¶99

 :26:

¶100

 23(1)(a) postulates that whenever any person is
 to be named or proceeded with as an accused
 involved in the offence under the Act, which is
 already registered after taking prior approval,
 once again approval for recording of information
 under that provision has to be obtained with
 reference to such person. Counsel for the
 Applicant, however submits that the material on
 record would indicate that even the understanding
 of the investigating agency was that prior
 approval to proceed against other accused was
 necessary and the proposal in that behalf was
 submitted. It was also argued that it was not
 open to submit new proposal for approval unless
 the earlier order of Mr. Mahesh Gauri, Joint
 Commissioner of Police, was challenged before the
 Court of Law and was set aside. To my mind,
 submission of fresh proposal for approval under
 section 23(1)(a) with regard to other accused
 will make no difference if that was not the
 requirement of law. Some subsequent proposal
 submitted under mistaken belief by the officers
 as referred to above cannot be the basis to hold
 that there was no prior approval for recording of
 information of offence under the Act at all as is

¶101

 :27:

¶102

 contended, or, that the approval as granted was
 invalid. Besides, there was no need to challenge
 the order of approval as granted by Shri Mahesh
 Gauri as, in law, the approval was for recording
 of information of the offence. In the present
 case, as mentioned earlier, provisions of MCOCA
 came to be applied only after obtaining prior
 approval of the competent authority. It cannot
 be disputed that Mr. Mahesh Gauri was the
 competent authority, as he was of the rank of
 Joint Commissioner of police, which is above the
 rank of Deputy Inspector General of Police. In
 my opinion, some clerical error occurring in the
 proposal for approval cannot be the basis to rule
 that the prior approval as granted was invalid.
 For, the mistake occurring in the proposal or the
 approval order can always be explained during the
 trial. If it is so, the argument canvassed
 before me that the authority instead of granting
 approval straightaway proceeded to grant sanction
 under section 23(2) of the Act is of no avail.
 Accordingly, there is no substance in the
 grievance made that there was no prior approval
 at all for recording of information of commission
 of offence of organized crime under the Act as

¶103

 :28:

¶104

 contended. Whereas, the approval granted by Mr.
 Mahesh Gauri, Joint Commissioner of Police, Pune,
 by itself, was sufficient compliance of the
 requirement of section 23(1)(a) of the Act.

¶105

 07. On the above reasoning, it will not be
 necessary to examine the next argument about the
 competence of Mr. Jaiswal, D.I.G. (S.I.T.) in
 granting approval under section 23(1)(a) of the
 Act on the proposal submitted by the
 investigating officer, C.H. Wakade, Additional
 Superintendent of Police, as he himself was the
 investigating officer. To my mind, however,
 there is no infirmity in the order as passed by
 Mr. S.K. Jaiswal, DIG, SIT. For, Mr.
 S.K.Jaiswal was appointed as Head of the Special
 Investigation Team (SIT) to make indepth
 investigation and follow up action in the bogus
 stamp case. The Resolution issued by the
 Government of Maharashtra dated 2nd November 2002
 clearly spells out this position. It further
 provides that Shri S.K. Jaiswal, DIG, was to be
 assisted by one Deputy Commissioner of Police,
 one Assistant Commissioner of Police, three
 Inspectors of Police, whose names were to be

¶106

 :29:

¶107

 decided by the Director General of Police. It is
 also seen that when the proposal was submitted,
 at the relevant time, the investigating officer
 was named as Mr. C.H. Wakade, Additional
 Superintendent of police to DIG, who was
 appointed by Shri Jaiswal to investigate into the
 matter and in turn after investigation has
 presented the charge sheet. In that sense, Shri
 Jaiswal was not the investigating officer in the
 case as such. If it is so, Shri S.K. Jaiswal
 was competent to exercise powers under section
 23(1)(a) of the Act, as he was above the rank of
 Deputy Inspector General of Police. To get over
 this position, it was argued that Shri S.K.
 Jaiswal had recorded statements of some witnesses
 in this case and was, therefore, incompetent to
 accord approval. This argument overlooks the
 fact that in the first place, there is nothing on
 record to show that Shri S.K. Jaiswal had
 examined any prosecution witness in connection
 with the alleged offence prior to 22-12-2002 when
 he had accorded approval under section 23(1)(a)
 of the Act. Besides, I have no hesitation in
 accepting the argument canvassed by Mr. Tulpule
 that Mr. Jaiswal has not recorded the statement

¶108

 :30:

¶109

 of prosecution witness in connection with the
 alleged offence, but in relation to an incidental
 inquiry which was required to be undertaken. In
 my opinion, therefore, there is no substance in
 the argument that Shri Jaiswal was incompetent to
 accord approval for recording of information of
 commission of offence of organized crime in the
 fact situation of the present case.

¶110

 08. Much stress was placed on the decision in
 the case of Anirudhsinhji Jadeja (supra). That
 decision, however, deals with a different
 situation. In that case, the authority who was
 otherwise competent to accord prior approval
 forwarded proposal to the Additional Chief
 Secretary of the Home Department for permitting
 him to invoke the provisions of sections 3 and 5
 of the T.A.D.A. In this backdrop, the Apex Court
 proceeded to hold that it amounted to abdication
 or non-exercise of power by the concerned
 authority, for which reason, in law, there was no
 approval accorded. Whereas, in the present case,
 I have already held that proper approval has been
 granted by the competent authority and that
 approval will enure in relation to the offence

¶111

 :31:

¶112

 and not the offender. Even the unreported
 decision pressed into service by Mr. Tulpule in
 the case of Babanrao Ranjane (supra) proceeds to
 hold that approval granted by Mr. Jaiswal was
 valid. Besides, the view expressed in the
 unreported decision is that no separate
 information about the commission of offence of
 organized crime under the Act needs to be
 recorded, but it is open to the police agency to
 apply the provisions of MCOCA at a later stage by
 following the necessary procedure provided by
 law. I am in agreement with the said conclusions
 for the reasons recorded hereinbefore. Viewed in
 this perspective, it is not necessary to
 elaborate on other aspects canvassed before me on
 the correctness of the opinion recorded in the
 said decision on other matters.

¶113

 09. I shall now straightaway consider the
 question as to whether the materials on record
 was sufficient to proceed against the Applicant,
 or, is it possible to take the view that there
 are reasons to believe that the Applicant is not
 guilty of the alleged offence. On perusal of the
 record and in particular the statements of the

¶114

 :32:

¶115

 witnesses and of co-accused as referred to in
 paragraph one above, prima facie, there is
 material to suggest that the Applicant had close
 association with prime accused Abdul Karim Ladsab
 Telgi. The association was not only limited to
 social contacts, but the Applicant has taken
 active part in facilitating the illegal activity
 undertaken by the prime accused Telgi. The
 Applicant used his political clout to secure
 necessary licence, which facilitated the prime
 accused to accomplish his design. There is
 material on record which would suggest that the
 Applicant, in turn, took pecuniary benefit, for
 himself as well as huge deposits and donations
 for the Kisan Trust of which he was the Chairman.
 The Applicant took the prime accused Telgi as
 trustee of the said Trust and to make him
 eligible to be trustee provided the address of
 his residence. There is material on record that
 the Applicant had knowledge about the antecedents
 and the activities of the prime accused.
 Nevertheless, the Applicant has maintained close
 association but also facilitated the continuing
 unlawful activities of the prime accused Telgi.
 The documents recovered during the search would

¶116

 :33:

¶117

 support the position that the Applicant has
 received substantial pecuniary benefits. The
 confessional statements of the co-accused would
 also indicate the involvement of the Applicant.
 The evidence on record clearly suggests that the
 Applicant not only facilitated commission of
 organized crime, by the organized crime
 syndicate, and was part of the conspiracy, but
 the involvement of the Applicant is established
 from the evidence of witnesses as well as the
 confessional statements of the co-accused. The
 Court below has rightly adverted to all the
 materials on record and reached at a conclusion
 that there was sufficient material to connect the
 Applicant with the alleged offence. The charge
 is one of conspiracy and there are incriminating
 circumstances, which, if considered collectively,
 will be sufficient to frame the charge. On
 perusal of the said materials on record, I am in
 agreement with the conclusion reached by the
 Court below that there is sufficient material to
 connect the Applicant with the commission of the
 alleged crime. The evidence which is already on
 record cannot be disbelieved at this stage, nor
 it is open for this Court to enter into the

¶118

 :34:

¶119

 argument of preponderance of probabilities. If
 the materials on record are taken as it is, as is
 required to be done at this stage, the only
 conclusion that would follow is that there is
 enough material on record to connect the
 Applicant with the commission of offence of
 organized crime, at any rate of facilitating the
 same. To my mind, the Court below has applied
 the correct legal position in sifting and
 weighing the materials on record. There is no
 error either in the approach or the conclusion as
 reached by the Court below while considering the
 application for discharge. Viewed in this
 perspective, the prayer for discharge as pressed
 into service on behalf of the Applicant will have
 to be rejected. Applying this reasoning, it
 necessarily follows that it is not possible to
 take the view that there are reasons to believe
 that the Applicant is not guilty of the alleged
 offence. In such a situation, the bar under
 section 21(4) of the Act would operate and the
 Court will have no discretion to enlarge the
 Applicant on bail. Besides, having regard to the
 complexity of the case and the seriousness of the
 charge, the apprehension of the prosecution is

¶120

 :35:

¶121

 that if the Applicant is released on bail, he
 would tamper with the prosecution evidence being
 an influential person and the possibility that he
 may jump the bail also cannot be lightly brushed
 aside. If it is so, even the second condition
 under section 21(4) of the Act remains
 unfulfilled, for which reason the Court will have
 no discretion to grant bail to the present
 Applicant in relation to the alleged offence.

¶122

 10. Although lengthy argument was canvassed
 before me inviting my attention to each document,
 I have chosen not to elaborate on the said
 argument in the present judgment, so as to
 obviate any prejudice being caused one way or the
 other, at the trial; because I am presently
 called upon to consider the limited question as
 to whether the materials on record would permit
 proceeding against the Applicant in relation to
 the alleged offence and is it possible to take
 the view that there are reasons to believe that
 the Applicant is not guilty of the alleged
 offence. In any case, it is made clear that the
 trial Court shall proceed to deal with all the
 questions on its own merits at the trial

¶123

 :36:

¶124

 uninfluenced by any observations made in this
 judgment. I have also avoided in adverting to
 the further material collected by the
 investigating agency in the course of further
 investigation after the filing of the charge
 sheet against the Applicant inasmuch as in my
 view, the present material on record was
 sufficient to answer the point in issue.
 Similarly, so far as the question as to whether
 it is open to file discharge application when
 investigation is already in progress, it is not
 necessary for me to answer the same for the

¶125

 reasons already recorded above.

¶126

 11. Accordingly both the applications fail
 and the same are dismissed.

¶127

 (A.M.KHANWILKAR,J.)

Shri Anil Umrao Gote v. the State of Maharashtra

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Shri Anil Umrao Gote v. the State of Maharashtra

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