Full Judgment Text
Judgment
apl7.16 2
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL) NO.7 OF 2016
Vijendra Molchand Kuril,
Aged about 35 years, Occupation Labour,
R/o Mochipura, Akola. ….. Applicant.
:: VERSUS ::
1. The State of Maharashtra,
Police Station, Akot Fail, Akola.
2. Special Inspector General of Police,
Amravati Range, Amravati. ….. Nonapplicants.
================================================================
Shri S.V. Sirpurkar, Counsel with Ms Ankita Sarkar, Adv. for
the applicant.
Shri T.A. Mirza with Shri I.J. Damle, Additional Public
Prosecutors for the State.
================================================================
CORAM : V.M. DESHPANDE, J.
DATE : SEPTEMBER 12, 2017.
ORAL JUDGMENT
1. Rule. Rule is made returnable forthwith. Heard
finally by consent of learned counsel Shri S.V. Sirpurkar with
Ms Ankita Sarkar for the applicant and learned Additional
.....2/
::: Uploaded on - 13/03/2018 ::: Downloaded on - 02/06/2024 02:58:21 :::
Judgment
apl7.16 2
2
Public Prosecutors Shri T.A. Mirza with Shri I.J. Damle for
the State.
2. The inherent jurisdiction of this Court under
Section 482 of the Code of Criminal Procedure, 1973 is
invoked by the applicant to set up a challenge to order passed
by learned Special Judge (MCOCA), Amravati dated 30.11.2015
in Crime No.83 of 2015 by which learned Special Judge
allowed application of the prosecution dated 26.11.2015 and
thereby cancelled the bail granted in favour of the present
applicant in Crime No.83 of 2015 registered with Akot File
Police Station, Akola for the offences punishable under
Sections 302, 384, 387, and 120B of the Indian Penal Code. At
the same time, application dated 18.11.2015 was rejected by
learned Special Judge which was filed on behalf of the
prosecution seeking permission to arrest the applicant.
However, the prosecution was given liberty to arrest the
.....3/
::: Uploaded on - 13/03/2018 ::: Downloaded on - 02/06/2024 02:58:21 :::
Judgment
apl7.16 2
3
applicant for the offences punishable under Sections 3 and 4
of the Maharashtra Control of Organized Crime Act, 1999 (for
short, “ the MCOC Act ”).
3. According to learned counsel Shri S.V. Sirpurkar
for the applicant, the order passed by learned Special Judge
(MCOCA), Amravati is unjust inasmuch as, according to him,
though ample opportunity was available to the prosecuting
agency, the provisions of the MCOC Act were not applied and
thereby allowed crucial time to pass away. In that view of the
matter, according to him, the law laid down by this Court in
the case of Sarang Arvind Goswamy ..vs.. State of
Maharashtra, reported at 2005(3) Mh.L.J. 774 cannot be made
applicable. He, therefore, submits that the order impugned is
required to be set aside.
4. Per contra, it is the submission on behalf of the
prosecution that the law laid down by this Court in the case
.....4/
::: Uploaded on - 13/03/2018 ::: Downloaded on - 02/06/2024 02:58:21 :::
Judgment
apl7.16 2
4
cited supra applies to the present case with its full force.
According to learned Additional Public Prosecutor, as soon as
sanction to prosecute the applicant, under the stringent
provisions of the MCOC Act was received, the same were
applied. He submits that the order passed by learned Special
Judge is passed after considering the provisions of the MCOC
Act in its correct perspective and, therefore, he prays for
dismissal of the application.
5. To appreciate the rival contentions, it would be
useful to advert to basic facts giving rise to Crime No.83 of
2015.
6. One Rameshwar Pawar set the criminal law into
motion by lodging his report with Akot File Police Station,
Akola on 5.7.2015.
7. As per the first information report, the first
informant works as an agricultural labour in agricultural
.....5/
::: Uploaded on - 13/03/2018 ::: Downloaded on - 02/06/2024 02:58:21 :::
Judgment
apl7.16 2
5
fields of Dilip Bisen, Prakash Bisen, and Ramsingh Bisen
since last 10 years. Therefore, he is fully acquainted with his
3 employers. As per the first information report, Prakash
Bisen is having an agricultural field situated on AkotAkola
Road. Elias Khan and Salam Khan Karim Khan were making
attempt to grab the said agricultural land of Prakash Bisen by
adopting armtwisting tactics and by using force. Even, Elias
Khan raised an unauthorized construction in the nature of
'hut' also and in the said unauthorized construction, Elias
Khan and Salam Khan Karim Khan used to sit their along
with others having criminal records. In view of these
activities, field owner Prakash Bisen was frightened.
8. According to the first information report, prior to
two days only, Salam Khan Karim Khan, Elias Khan, Rizwan,
and Viju (present applicant) extended threat to landowner
Prakash Bisen that if Rs.10.00 lacs are not given to them, they
.....6/
::: Uploaded on - 13/03/2018 ::: Downloaded on - 02/06/2024 02:58:21 :::
Judgment
apl7.16 2
6
will occupy and take possession of 28 Acres of land of Prakash
Bisen. As per the first information report, Prakash Bisen
refused to oblige such threat.
The first information report further recites that on
the day of the occurrence, i.e. on 5.7.2015 at about 5:00 p.m.,
when first informant Rameshwar Pawar and Prakash Bisen
were sitting under a 'NeemTree' adjacent to road in the
agricultural field of Dilip Bisen, a white colour four wheeler
came and driver of the said, all of a sudden, turned the said
vehicle left side and gave a forceful dash to Prakash Bisen,
resulting into falling of Prakash Bisen from chair on which he
was sitting and he came under the said vehicle. Thereafter,
Salam Khan Karim Khan, Elias Khan, and Viju (present
applicant), who were sitting on rear seat of the motorvehicle,
alighted from the vehicle, dragged Prakash Bisen from
beneath of the motorvehicle, and put away . Due to this, first
.....7/
::: Uploaded on - 13/03/2018 ::: Downloaded on - 02/06/2024 02:58:21 :::
Judgment
apl7.16 2
7
informant Rameshwar Pawar ran away towards the
agricultural field. Thereafter Salam Khan Karim Khan, Elias
Khan, and Viju (present applicant) left the place in the
vehicle.
9. Since the report lodged by Rameshwar Pawar was
disclosing cognizable offence, a crime was registered with
Akot File Police Station, Akola for the offences punishable
under Sections 302, 384, 387, and 120B of the Indian Penal
Code. The name of the present applicant was specifically
appearing in the first information report in connection with
demand for extortion and also at the time when Prakash
Bisen was run over by the vehicle, that time he was one of
occupants in the said vehicle. The applicant was arrested on
6.7.2015. After some days, he was taken in the police custody
remand and, thereafter, he was taken in the magisterial
custody remand.
.....8/
::: Uploaded on - 13/03/2018 ::: Downloaded on - 02/06/2024 02:58:21 :::
Judgment
apl7.16 2
8
10. The applicant was arrested for the offences
punishable under the Indian Penal Code. Looking to the
nature of accusations made against the present applicant and
the offences which were registered against the applicant, the
prosecution was under the duty to file final report within a
period of 90 days from the date of arrest of the applicant.
However, till lapse of 103 days from the date of arrest, no final
report was filed before the Court of law. The applicant moved
an application under Sections 167(2) and 439 of the Code of
Criminal Procedure, 1973 for grant of bail before learned
Special Judge under the MCOC Act, Amravati.
11. It was pointed out before learned Special Judge by
moving the application, which was filed on 17.10.2015, that
against the applicant the stringent provisions of the MCOC
Act are not applied and the applicant is accused of
committing offences punishable under the Indian Penal Code
.....9/
::: Uploaded on - 13/03/2018 ::: Downloaded on - 02/06/2024 02:58:21 :::
Judgment
apl7.16 2
9
and in spite of lapse of 103 days, the chargesheet against him
is not filed.
12. The said application was contested by the
prosecution on the ground that the prosecution has already
applied the provisions of the MCOC Act against the co
accused. Therefore, outer limit to file the chargesheet in the
crime is 180 days and, therefore, the said application was
opposed.
13. On 17.10.2015, learned Special Judge allowed the
application filed on behalf of the present applicant by holding
that merely because the provisions of the MCOC Act are
applied against the coaccused, that is not sufficient to deny
default bail in favour of the applicant since the applicant was
charged only for the offences committed under the Indian
Penal Code.
.....10/
::: Uploaded on - 13/03/2018 ::: Downloaded on - 02/06/2024 02:58:21 :::
Judgment
apl7.16 2
10
14. The applicant, thereafter, availed of the bail and
was released from jail.
15. On 18.11.2015 an application was moved by the
prosecution to cause arrest of the present applicant.
According to the said application, after releasing the
applicant on default bail, the Inspector General of Police,
Amravati Range, Amravati granted sanction on 9.11.2015 for
applying Sections 3 and 4 of the MCOC Act.
16. Pending the said application, on 26.11.2015
another application was filed by the prosecution for
cancellation of the bail granted in favour of the present
applicant on 17.10.2015. As per the said application, co
accused Shaikh Kayyum Shaikh Karim gave his confessional
statement which was recorded by the authority mentioned in
Section 18 of the MCOC Act. In the said confessional
statement, he has attributed specific role against the present
.....11/
::: Uploaded on - 13/03/2018 ::: Downloaded on - 02/06/2024 02:58:21 :::
Judgment
apl7.16 2
11
applicant for taking forceful possession of the agricultural
field of deceased Prakash Bisen. His confessional statement
also states that on 5.7.2015 a meeting was held in the house of
a gang leader Abdul Salam Khan Abdul Karim Khan in respect
of the agricultural field and in that meeting also the applicant
was present.
17. The applicant was also present in the car which
gave a murderous dash to deceased Prakash Bisen. It is also
stated in the said application that Call Data Records (CDRs)
of the mobile cellphone of the applicant are now obtained
which show that the applicant was in touch with the gang
leader from 15.6.2015 till the date of the occurrence. It is also
stated in the application that witness one Dhnyaneshwar
Omkar Pahurkar has stated in his statement that prior to 15
days of the occurrence, there was a meeting in one Jayaswal
Wine Bar with deceased Prakash Bisen by the gang leader and
.....12/
::: Uploaded on - 13/03/2018 ::: Downloaded on - 02/06/2024 02:58:21 :::
Judgment
apl7.16 2
12
other members of the syndicate in which the applicant was
also present. Further, from the CDRs it is clear that the
present applicant was in touch even with deceased on his
cellphone.
18. According to the application, during the course of
the investigation, thus it is clear that the applicant is an
active member of this syndicate of which Abdul Salam Khan
Abdul Karim Khan is its leader. A proposal was submitted to
the competent authority for applying the provisions of the
MCOC Act and the competent authority granted sanction on
9.11.2015 and accordingly the provisions of Sections 3 and 4 of
the MCOC Act were added as against the present applicant in
Crime No.83 of 2015 and, therefore, a prayer was made for
cancellation of the bail granted in favour of the applicant.
19. After hearing learned counsel for the applicant
and learned Additional Public Prosecutor for the State, the
.....13/
::: Uploaded on - 13/03/2018 ::: Downloaded on - 02/06/2024 02:58:21 :::
Judgment
apl7.16 2
13
issue that once the bail is granted for the offences punishable
under the “ordinary law” i.e. under the Indian Penal Code and
subsequently, the provisions of Sections 3 and 4 of the MCOC
Act are added and applied, whether the bail earlier granted
can be cancelled or not, is not in res integra in view of the
law laid down by this Court in the case of Sarang Arvind
Goswamy cited supra .
20. In Sarang Arvind Goswamy's case, accused
Sarang was arrested in connection with Crime No.212 of 2004
for the offences punishable under the Indian Penal Code.
Subsequently, he was released on bail. Subsequent to his
release on bail, the provisions of special enactment, namely
MCOC Act, were invoked against said Sarang. After such
invocation, an application was moved by the prosecution for
cancellation of bail on the assertion that as the provisions of
special enactment have been applied, earlier bail cannot be
.....14/
::: Uploaded on - 13/03/2018 ::: Downloaded on - 02/06/2024 02:58:21 :::
Judgment
apl7.16 2
14
continued and the same is required to be cancelled in view of
the stringent provisions of Section 21 of the MCOC Act.
21. The Sessions Court at Pune cancelled the bail
granted earlier in favour of accused Sarang that gave rise
filing of Criminal Application No.2129 of 2005 by Sarang
before this Court and this Court, after considering the entire
law on the said issue, found that the bail, which was granted
earlier in favour of applicant Sarang, was only in respect of
the offences punishable under the relevant Sections of the
Indian Penal Code. However, subsequently, the stringent
provisions of the MCOC Act were applied. Therefore, the
order was upheld cancelling the bail of Sarang.
22. In the present case also, at the time when the
applicant was released on bail under Section 167(2) of the
Code of Criminal Procedure, 1973, the stringent provisions of
special enactment i.e. MCOC Act were not applied against the
.....15/
::: Uploaded on - 13/03/2018 ::: Downloaded on - 02/06/2024 02:58:21 :::
Judgment
apl7.16 2
15
present applicant only. Therefore, learned Judge of the Court
below has rightly granted default bail since the final report
was not filed within 90 days.
23. However, the investigation was continued in view
of invocation of the provisions of the MCOC Act against the
coaccused persons and during the investigation, the role of
the applicant was also revealed by which the provisions of the
MCOC Act could be invoked and accordingly the sanction was
sought and the same was granted by the competent authority.
24. In my view, the prosecution has rightly applied for
cancellation of bail by approaching to the Court by moving an
application dated 26.11.2015 on assertion that the provisions
of the MCOC Act have been applied against the present
applicant. As a consequence of which, the bail granted in
favour of the applicant, relating to the offences under the
Indian Penal Code, will be of no avail. In view of invocation of
.....16/
::: Uploaded on - 13/03/2018 ::: Downloaded on - 02/06/2024 02:58:21 :::
Judgment
apl7.16 2
16
the provisions of the special enactment, the prosecution was
having a right to take the applicant into custody in relation to
the newly registered offences under the MCOC Act and as
observed by this Court in Sarang Arvind Goswamy's case cited
supra, the applicant can be released on bail only if the
applicant was to satisfy rigours of the provisions of the special
enactment.
25. In view of the provisions of the MCOC Act, being
made against the present applicant, in my view learned Judge
of the Court below has not committed any wrong in cancelling
the bail. Consequently, the present application is required to
be dismissed and accordingly it is dismissed and the interim
orders granted by this Court on 8.1.2016 shall cease to operate
immediately. The applicant is directed to surrender before
the law immediately. Else, the investigating officer is free to
cause arrest of the applicant in the said crime.
.....17/
::: Uploaded on - 13/03/2018 ::: Downloaded on - 02/06/2024 02:58:21 :::
Judgment
apl7.16 2
17
26. The criminal application is dismissed and the Rule
is discharged.
JUDGE
!! BRW !!
...../
::: Uploaded on - 13/03/2018 ::: Downloaded on - 02/06/2024 02:58:21 :::
apl7.16 2
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL) NO.7 OF 2016
Vijendra Molchand Kuril,
Aged about 35 years, Occupation Labour,
R/o Mochipura, Akola. ….. Applicant.
:: VERSUS ::
1. The State of Maharashtra,
Police Station, Akot Fail, Akola.
2. Special Inspector General of Police,
Amravati Range, Amravati. ….. Nonapplicants.
================================================================
Shri S.V. Sirpurkar, Counsel with Ms Ankita Sarkar, Adv. for
the applicant.
Shri T.A. Mirza with Shri I.J. Damle, Additional Public
Prosecutors for the State.
================================================================
CORAM : V.M. DESHPANDE, J.
DATE : SEPTEMBER 12, 2017.
ORAL JUDGMENT
1. Rule. Rule is made returnable forthwith. Heard
finally by consent of learned counsel Shri S.V. Sirpurkar with
Ms Ankita Sarkar for the applicant and learned Additional
.....2/
::: Uploaded on - 13/03/2018 ::: Downloaded on - 02/06/2024 02:58:21 :::
Judgment
apl7.16 2
2
Public Prosecutors Shri T.A. Mirza with Shri I.J. Damle for
the State.
2. The inherent jurisdiction of this Court under
Section 482 of the Code of Criminal Procedure, 1973 is
invoked by the applicant to set up a challenge to order passed
by learned Special Judge (MCOCA), Amravati dated 30.11.2015
in Crime No.83 of 2015 by which learned Special Judge
allowed application of the prosecution dated 26.11.2015 and
thereby cancelled the bail granted in favour of the present
applicant in Crime No.83 of 2015 registered with Akot File
Police Station, Akola for the offences punishable under
Sections 302, 384, 387, and 120B of the Indian Penal Code. At
the same time, application dated 18.11.2015 was rejected by
learned Special Judge which was filed on behalf of the
prosecution seeking permission to arrest the applicant.
However, the prosecution was given liberty to arrest the
.....3/
::: Uploaded on - 13/03/2018 ::: Downloaded on - 02/06/2024 02:58:21 :::
Judgment
apl7.16 2
3
applicant for the offences punishable under Sections 3 and 4
of the Maharashtra Control of Organized Crime Act, 1999 (for
short, “ the MCOC Act ”).
3. According to learned counsel Shri S.V. Sirpurkar
for the applicant, the order passed by learned Special Judge
(MCOCA), Amravati is unjust inasmuch as, according to him,
though ample opportunity was available to the prosecuting
agency, the provisions of the MCOC Act were not applied and
thereby allowed crucial time to pass away. In that view of the
matter, according to him, the law laid down by this Court in
the case of Sarang Arvind Goswamy ..vs.. State of
Maharashtra, reported at 2005(3) Mh.L.J. 774 cannot be made
applicable. He, therefore, submits that the order impugned is
required to be set aside.
4. Per contra, it is the submission on behalf of the
prosecution that the law laid down by this Court in the case
.....4/
::: Uploaded on - 13/03/2018 ::: Downloaded on - 02/06/2024 02:58:21 :::
Judgment
apl7.16 2
4
cited supra applies to the present case with its full force.
According to learned Additional Public Prosecutor, as soon as
sanction to prosecute the applicant, under the stringent
provisions of the MCOC Act was received, the same were
applied. He submits that the order passed by learned Special
Judge is passed after considering the provisions of the MCOC
Act in its correct perspective and, therefore, he prays for
dismissal of the application.
5. To appreciate the rival contentions, it would be
useful to advert to basic facts giving rise to Crime No.83 of
2015.
6. One Rameshwar Pawar set the criminal law into
motion by lodging his report with Akot File Police Station,
Akola on 5.7.2015.
7. As per the first information report, the first
informant works as an agricultural labour in agricultural
.....5/
::: Uploaded on - 13/03/2018 ::: Downloaded on - 02/06/2024 02:58:21 :::
Judgment
apl7.16 2
5
fields of Dilip Bisen, Prakash Bisen, and Ramsingh Bisen
since last 10 years. Therefore, he is fully acquainted with his
3 employers. As per the first information report, Prakash
Bisen is having an agricultural field situated on AkotAkola
Road. Elias Khan and Salam Khan Karim Khan were making
attempt to grab the said agricultural land of Prakash Bisen by
adopting armtwisting tactics and by using force. Even, Elias
Khan raised an unauthorized construction in the nature of
'hut' also and in the said unauthorized construction, Elias
Khan and Salam Khan Karim Khan used to sit their along
with others having criminal records. In view of these
activities, field owner Prakash Bisen was frightened.
8. According to the first information report, prior to
two days only, Salam Khan Karim Khan, Elias Khan, Rizwan,
and Viju (present applicant) extended threat to landowner
Prakash Bisen that if Rs.10.00 lacs are not given to them, they
.....6/
::: Uploaded on - 13/03/2018 ::: Downloaded on - 02/06/2024 02:58:21 :::
Judgment
apl7.16 2
6
will occupy and take possession of 28 Acres of land of Prakash
Bisen. As per the first information report, Prakash Bisen
refused to oblige such threat.
The first information report further recites that on
the day of the occurrence, i.e. on 5.7.2015 at about 5:00 p.m.,
when first informant Rameshwar Pawar and Prakash Bisen
were sitting under a 'NeemTree' adjacent to road in the
agricultural field of Dilip Bisen, a white colour four wheeler
came and driver of the said, all of a sudden, turned the said
vehicle left side and gave a forceful dash to Prakash Bisen,
resulting into falling of Prakash Bisen from chair on which he
was sitting and he came under the said vehicle. Thereafter,
Salam Khan Karim Khan, Elias Khan, and Viju (present
applicant), who were sitting on rear seat of the motorvehicle,
alighted from the vehicle, dragged Prakash Bisen from
beneath of the motorvehicle, and put away . Due to this, first
.....7/
::: Uploaded on - 13/03/2018 ::: Downloaded on - 02/06/2024 02:58:21 :::
Judgment
apl7.16 2
7
informant Rameshwar Pawar ran away towards the
agricultural field. Thereafter Salam Khan Karim Khan, Elias
Khan, and Viju (present applicant) left the place in the
vehicle.
9. Since the report lodged by Rameshwar Pawar was
disclosing cognizable offence, a crime was registered with
Akot File Police Station, Akola for the offences punishable
under Sections 302, 384, 387, and 120B of the Indian Penal
Code. The name of the present applicant was specifically
appearing in the first information report in connection with
demand for extortion and also at the time when Prakash
Bisen was run over by the vehicle, that time he was one of
occupants in the said vehicle. The applicant was arrested on
6.7.2015. After some days, he was taken in the police custody
remand and, thereafter, he was taken in the magisterial
custody remand.
.....8/
::: Uploaded on - 13/03/2018 ::: Downloaded on - 02/06/2024 02:58:21 :::
Judgment
apl7.16 2
8
10. The applicant was arrested for the offences
punishable under the Indian Penal Code. Looking to the
nature of accusations made against the present applicant and
the offences which were registered against the applicant, the
prosecution was under the duty to file final report within a
period of 90 days from the date of arrest of the applicant.
However, till lapse of 103 days from the date of arrest, no final
report was filed before the Court of law. The applicant moved
an application under Sections 167(2) and 439 of the Code of
Criminal Procedure, 1973 for grant of bail before learned
Special Judge under the MCOC Act, Amravati.
11. It was pointed out before learned Special Judge by
moving the application, which was filed on 17.10.2015, that
against the applicant the stringent provisions of the MCOC
Act are not applied and the applicant is accused of
committing offences punishable under the Indian Penal Code
.....9/
::: Uploaded on - 13/03/2018 ::: Downloaded on - 02/06/2024 02:58:21 :::
Judgment
apl7.16 2
9
and in spite of lapse of 103 days, the chargesheet against him
is not filed.
12. The said application was contested by the
prosecution on the ground that the prosecution has already
applied the provisions of the MCOC Act against the co
accused. Therefore, outer limit to file the chargesheet in the
crime is 180 days and, therefore, the said application was
opposed.
13. On 17.10.2015, learned Special Judge allowed the
application filed on behalf of the present applicant by holding
that merely because the provisions of the MCOC Act are
applied against the coaccused, that is not sufficient to deny
default bail in favour of the applicant since the applicant was
charged only for the offences committed under the Indian
Penal Code.
.....10/
::: Uploaded on - 13/03/2018 ::: Downloaded on - 02/06/2024 02:58:21 :::
Judgment
apl7.16 2
10
14. The applicant, thereafter, availed of the bail and
was released from jail.
15. On 18.11.2015 an application was moved by the
prosecution to cause arrest of the present applicant.
According to the said application, after releasing the
applicant on default bail, the Inspector General of Police,
Amravati Range, Amravati granted sanction on 9.11.2015 for
applying Sections 3 and 4 of the MCOC Act.
16. Pending the said application, on 26.11.2015
another application was filed by the prosecution for
cancellation of the bail granted in favour of the present
applicant on 17.10.2015. As per the said application, co
accused Shaikh Kayyum Shaikh Karim gave his confessional
statement which was recorded by the authority mentioned in
Section 18 of the MCOC Act. In the said confessional
statement, he has attributed specific role against the present
.....11/
::: Uploaded on - 13/03/2018 ::: Downloaded on - 02/06/2024 02:58:21 :::
Judgment
apl7.16 2
11
applicant for taking forceful possession of the agricultural
field of deceased Prakash Bisen. His confessional statement
also states that on 5.7.2015 a meeting was held in the house of
a gang leader Abdul Salam Khan Abdul Karim Khan in respect
of the agricultural field and in that meeting also the applicant
was present.
17. The applicant was also present in the car which
gave a murderous dash to deceased Prakash Bisen. It is also
stated in the said application that Call Data Records (CDRs)
of the mobile cellphone of the applicant are now obtained
which show that the applicant was in touch with the gang
leader from 15.6.2015 till the date of the occurrence. It is also
stated in the application that witness one Dhnyaneshwar
Omkar Pahurkar has stated in his statement that prior to 15
days of the occurrence, there was a meeting in one Jayaswal
Wine Bar with deceased Prakash Bisen by the gang leader and
.....12/
::: Uploaded on - 13/03/2018 ::: Downloaded on - 02/06/2024 02:58:21 :::
Judgment
apl7.16 2
12
other members of the syndicate in which the applicant was
also present. Further, from the CDRs it is clear that the
present applicant was in touch even with deceased on his
cellphone.
18. According to the application, during the course of
the investigation, thus it is clear that the applicant is an
active member of this syndicate of which Abdul Salam Khan
Abdul Karim Khan is its leader. A proposal was submitted to
the competent authority for applying the provisions of the
MCOC Act and the competent authority granted sanction on
9.11.2015 and accordingly the provisions of Sections 3 and 4 of
the MCOC Act were added as against the present applicant in
Crime No.83 of 2015 and, therefore, a prayer was made for
cancellation of the bail granted in favour of the applicant.
19. After hearing learned counsel for the applicant
and learned Additional Public Prosecutor for the State, the
.....13/
::: Uploaded on - 13/03/2018 ::: Downloaded on - 02/06/2024 02:58:21 :::
Judgment
apl7.16 2
13
issue that once the bail is granted for the offences punishable
under the “ordinary law” i.e. under the Indian Penal Code and
subsequently, the provisions of Sections 3 and 4 of the MCOC
Act are added and applied, whether the bail earlier granted
can be cancelled or not, is not in res integra in view of the
law laid down by this Court in the case of Sarang Arvind
Goswamy cited supra .
20. In Sarang Arvind Goswamy's case, accused
Sarang was arrested in connection with Crime No.212 of 2004
for the offences punishable under the Indian Penal Code.
Subsequently, he was released on bail. Subsequent to his
release on bail, the provisions of special enactment, namely
MCOC Act, were invoked against said Sarang. After such
invocation, an application was moved by the prosecution for
cancellation of bail on the assertion that as the provisions of
special enactment have been applied, earlier bail cannot be
.....14/
::: Uploaded on - 13/03/2018 ::: Downloaded on - 02/06/2024 02:58:21 :::
Judgment
apl7.16 2
14
continued and the same is required to be cancelled in view of
the stringent provisions of Section 21 of the MCOC Act.
21. The Sessions Court at Pune cancelled the bail
granted earlier in favour of accused Sarang that gave rise
filing of Criminal Application No.2129 of 2005 by Sarang
before this Court and this Court, after considering the entire
law on the said issue, found that the bail, which was granted
earlier in favour of applicant Sarang, was only in respect of
the offences punishable under the relevant Sections of the
Indian Penal Code. However, subsequently, the stringent
provisions of the MCOC Act were applied. Therefore, the
order was upheld cancelling the bail of Sarang.
22. In the present case also, at the time when the
applicant was released on bail under Section 167(2) of the
Code of Criminal Procedure, 1973, the stringent provisions of
special enactment i.e. MCOC Act were not applied against the
.....15/
::: Uploaded on - 13/03/2018 ::: Downloaded on - 02/06/2024 02:58:21 :::
Judgment
apl7.16 2
15
present applicant only. Therefore, learned Judge of the Court
below has rightly granted default bail since the final report
was not filed within 90 days.
23. However, the investigation was continued in view
of invocation of the provisions of the MCOC Act against the
coaccused persons and during the investigation, the role of
the applicant was also revealed by which the provisions of the
MCOC Act could be invoked and accordingly the sanction was
sought and the same was granted by the competent authority.
24. In my view, the prosecution has rightly applied for
cancellation of bail by approaching to the Court by moving an
application dated 26.11.2015 on assertion that the provisions
of the MCOC Act have been applied against the present
applicant. As a consequence of which, the bail granted in
favour of the applicant, relating to the offences under the
Indian Penal Code, will be of no avail. In view of invocation of
.....16/
::: Uploaded on - 13/03/2018 ::: Downloaded on - 02/06/2024 02:58:21 :::
Judgment
apl7.16 2
16
the provisions of the special enactment, the prosecution was
having a right to take the applicant into custody in relation to
the newly registered offences under the MCOC Act and as
observed by this Court in Sarang Arvind Goswamy's case cited
supra, the applicant can be released on bail only if the
applicant was to satisfy rigours of the provisions of the special
enactment.
25. In view of the provisions of the MCOC Act, being
made against the present applicant, in my view learned Judge
of the Court below has not committed any wrong in cancelling
the bail. Consequently, the present application is required to
be dismissed and accordingly it is dismissed and the interim
orders granted by this Court on 8.1.2016 shall cease to operate
immediately. The applicant is directed to surrender before
the law immediately. Else, the investigating officer is free to
cause arrest of the applicant in the said crime.
.....17/
::: Uploaded on - 13/03/2018 ::: Downloaded on - 02/06/2024 02:58:21 :::
Judgment
apl7.16 2
17
26. The criminal application is dismissed and the Rule
is discharged.
JUDGE
!! BRW !!
...../
::: Uploaded on - 13/03/2018 ::: Downloaded on - 02/06/2024 02:58:21 :::