DATTATRAY KRISHNAJI GHULE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Both these applications can be disposed of by a common order as the applicants in both these applications are seeking bail and both are arrested in connection with C. R. No. 131 of 2001 registered at Thane Nagar Police Station for the offence punishable under section s 192, 217, 218, 263 (a) of the Indian Penal Code read with section 3 (1) (ii) , 3 (2) , 3 (3) , 3 (4) and section 34 of MCOCA. BOTH the applicants were arrested on8-10-2004. BOTH the applicants were Police Officers who were investigating the said offence which was registered vide C. R. No. 131 of 2001 and pursuant to the investigation being entrusted to the CBI, their names were also added as accused and, thereafter, they were arrested and the charge-sheet has been filed against them by the CBI.

(2.) The prosecution case, in brief, is as under : -

(3.) The learned Counsel appearing on behalf of the applicant Hitendra Vichare adopted the arguments made by the learned Senior Counsel Shri. Manohar on the legal aspects. He further submitted that so far as factual aspects are concerned, there was no cogent evidence that Shabir Ahmed was arrested by Officers of Thane Crime Branch and, thereafter, was allowed to go or was allowed to escape. He submitted that the only witnesses who claimed to have seen Shabir Ahmed at Thane Crime Branch are Nilesh Agarwal and Manali Naik. He submitted that the Trial Court had held that it was highly impossible that witness Nilesh Agarwal could have seen Shabir Ahmed alongwith Sandeep Kandar at Thane Crime Branch. He submitted that so far as Manali Naik is concerned, her statement which was recorded under section 164 was totally contradictory to her three previous statements and, therefore, the said statement was not reliable. It was further submitted that there was no material to show that Shabir Ahmed had escaped from the police custody. He further submitted that so far as the allegation of pecuniary gain by PSI Vichare is concerned, that was based on the statement of co-accused Siraj Nasipudi which was recorded under section 164 in which he has stated that some amount was paid to PI Jangale for being forwarded to the present applicant. It was submitted that this did not prove that the amount had been paid to the applicant Vichare. It is submitted that the allegation of pecuniary gain was based on conjectures and surmises. It was further submitted that in the statement of Siraj Nasipudi which was recorded under section 18 of the MCOCA, there was no such allegation made against the applicant Vichare. Further, he submitted that so far as the allegations which were made by witness Rupali Dubey are concerned, she had stated that she had paid a sum of Rs. 46 lakhs to PI Ghule. THEre was, however, no material to show that the money was ever paid to the applicant Vichare. It was, therefore, submitted that even otherwise the payment was allegedly made by Rupali Dubey to PI Dattatray Ghule for the purpose of giving proper treatment to her husband or his release on bail. It was submitted that, therefore, the pecuniary advantage, if any, was not related to any offence of organized crime or aiding and abetting the activities of AKL Telgi since Hemant Dubey was his rival. It was further submitted that the trial court had erred in holding that the applicant had failed to discharge his duty as a public servant by (a) not arresting Madhav MD and Shabir Ahmed, (b) not sealing the Office of M/s. Sahara Enterprises and (c) not seizing the property from the said shop. THE learned Counsel appearing on behalf of the applicant Vichare submitted that these findings were not based on material which was there on record which indicated that the Trial Court should not have given the said findings in view of the clear evidence on record which indicated that the applicant Vichare had taken all steps in discharge of his duty as a public servant. It was lastly submitted that in the absence of any evidence to suggest mensrea, acts of omission, commission, negligence of dereliction of duty, there was no indication that the applicant Vichare was in any way concerned with the said case. It was therefore, submitted that the provisions of MCOCA were not attracted in the instant case. It was submitted that from the analysis of evidence on record, the applicant Vichare cannot be convicted for an offence under the MCOCA and, therefore, he was entitled to be released on bail. He relied upon the judgments of the Supreme Court in the cases of Ranjitsingh Sharma & Bharat Shah and in the cases of Jayendra Saraswati Vs. State of Tamil Nadu, 2005 AIR(SCW) 323; Chandran Vs. State of Tamil Nadu, 1978 SCC(Cri) 528 and Sharafat Hussain Vs. State of Gujarat, 1997 SCC(Cri) 48.