ANIL UMRAO GOTE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS application is filed under "section 482" of the Code of Criminal Procedure by the applicant, who is accused No. 45 in CR. No. 135/2002 registered at Blind Garden Police station, Pune, pertaining to the commonly known "stamp Scam case". The relief claimed in this application is that the Applicant be released on temporary bail or interim bail for the purpose of submitting his nomination form in accordance with the Notification dated 15th September 2004 issued by the Election Commission of India in respect of assembly elections. When this application was taken up for hearing on 21st September 2004, counsel for the Applicant, on instructions, stated that the Applicant was not interested in pursuing the present application. However, as objection was taken by the learned P. P. regarding entertaining such applications either for "interim bail" or "temporary bail" and the said question being recurring one, it was thought appropriate that the issue is finally answered. Accordingly, Counsel were called upon to address the Court on the question as to whether it is open to the Special Court, or, for that matter, the High Court, to release any accused named in the offence under the special enactment of the maharashtra Control of Organised Crime Act, 1999 (hereinafter referred to as MCOCA, far the sake of brevity) on "interim bail" or "temporary bail", as the case may be.

(2.) ACCORDING to the Counsel for the applicant, the power to grant bail is derived by the Special Judge under section 437 of the Code of Criminal Procedure, whereas by the High Court under section 439 of the Code. It is argued by mr. Mundargi that since there is power to grant bail, it gives implicit power to the Court to release any person on interim bail, until the final decision of the main bail application, or, for that matter, to release the accusec on temporary bail in certain special circumstances. Mr. Mundargi contends that such power is not taken away by the special enactment nor it be limited, as it is inherent in the Court which is empowered to release the accused on bail during the pendency of the trial. He further submits that there is no necessity for the Court to record a finding as required by section 21 (4)of the Act while enlarging the concerned accused on interim or temporary bail. To buttress the above submissions, Mr. Mundargi has placed reliance on the decision of Division Bench of Allahabad High court reported in 1993 Cri. L. J. 3574 in the case of Haji Peer Bux and others v. State of U. P. and others. Reliance is also placed on the bombay High Court Appellate Side Rules, which deal with the Criminal Business to be conducted by the Single Judge and Division Bench, which refers to grant of temporary bail in the matter pending before the concerned Court. Reliance is also placed on the observations of the Apex Court in the case of Usmanbhai Dawoodbhai Memon and others v. State of Gujarat, reported in (1988) 2 b. C. C. 271, as well as in the case of Kartar singh v. State of Punjab, reported in (1994) 3 b. C. C. 569. He has also relied upon couple of impugned orders of this Court releasing the accused under the MCOCA on temporary bail to buttress his arguments. He, however, fairly accepts that in none of those matters the question posed in this case has been raised or answered. According to Mr. Mundargi, there is no inhibition for grant of interim bail or temporary bail either by the Special Judge or by the High Court even if the offence is one under the special enactment, such as the MCOCA.

(3.) ON the other hand, Mr. Tulpule, learned p. P. , submits that the power to grant bail has been limited by the special enactment, in particular section 21 of the MCOCA. According to mr. Tulpule, "complete fetter" has been imposed by the Legislature on granting bail to any accused involved in the commission of offence under the special Act; and so long as conditions specified in section 21 of the Act are not fulfilled, the Court cannot assume jurisdiction to release the accused on bail. Mr. Tulpule submits that there can be variety of situations, where the accused involved in the commission of the offence under the special Act will approach the Special Judge, or, for that matter, this court. Invariably, accused would approach the special Judge, or, the High Court? requesting to be released on interim bail or temporary bail on the assertion of serious illness and for undergoing medical treatment or to attend last rites of deceased close relative and so on. The learned Public Prosecutor contends that even in such cases, there is no question of grant of interim bail or temporary bail as the Court cannot assume such power, either in exercise of power under section 437 or 439, as the case may be, unless requirements of section 21 of the Act are fulfilled. He submits that there is total bar on the grant of bail on any ground, without fulfilling the specified conditions under section 21 of the Act. Reliance is placed by Mr. Tulpule also on the decisions of the Apex Court in JT 1993 (6) SC 589, State of Maharashtra v. Abul Hamid, particularly paras 8 and 13, as well as another decision reported in JT 1994 (2) SC 1, state of Maharashtra v. Abdul Hamid and unreported decision of our High Court in the case of Intelligence Officer, Narcotics Control bureau, Mumbai v. Ramnik J. Gajaria, Criminal writ Petition No. 3605 of 2001 dated November 29, 2001. In this case, the accused was released on bail by the lower Court and to justify that order, it was inter alia contended that the accused was suffering from serious illness for which he was required to undergo medical treatment. While dealing with the said argument, in para 22, relying upon the decision of the Apex court in the case of Lakshmi and ors. v. State of U. P. , this Court rejected that contention and observed that in such a case, necessary medical facility can be provided by the jail authorities.