Full Judgment Text
$~45 & 46
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Order pronounced on 05.08.2022
+ CRL.A. 358/2021
STATE ..... Appellant
Through: Mr.Amit Chadha, APP for State.
versus
IBRAHIM TYAGI ..... Respondent
Through: Mr. Omkar Sharma and Mr.
Ghanshyam Sharma, Advocates.
+ CRL.A. 359/2021
STATE ..... Appellant
Through: Mr.Amit Chadha, APP for State.
versus
HAZI MANSOOR ..... Respondent
Through: Mr. Omkar Sharma and Mr.
Ghanshyam Sharma, Advocates.
CORAM:
HON'BLE MR. JUSTICE TALWANT SINGH
Talwant Singh, J.:
1. The State has filed these appeals under Section 12 of The Maharashtra
Control of Organised Crime Act, 1999 (hereinafter referred to ‘MCOCA’)
read with Section 482 Cr.P.C. against the impugned order dated 25.11.2020
passed by learned Special Judge (MCOCA)-cum-ASJ. Since broad facts in
both the cases are same and the appeals are also on the same lines, so both
the matters have been taken up together for disposal.
1.1 The case of the petitioners is that regular bail was granted to both the
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respondents/accused persons without they being in judicial custody and they
were directed to join investigation as and when required by the Investigating
Officer. The application filed before the learned Special Judge was neither
an application under Section 439 Cr.P.C. nor an application under Section
438 Cr.P.C. and the heading of the application stated that this was an
application for joining the investigation and grant of bail. There is no
provision under MCOCA for grant of anticipatory bail but the applications
were considered by learned ASJ treating them as anticipatory bail
applications. These applications were moved on 23.11.2020, the response
was filed on 25.11.2020 and on the same date, these applications were
disposed of by two separate detailed orders on identical grounds.
1.2 In brief the facts of the case are that an FIR No. 397/2019 was
registered under Section 3/4 of MCOCA at PS: Hari Nagar against Salman
Tyagi and his crime syndicate members. He had formed an interstate gang
for running an organised crime syndicate with an objective of gaining
pecuniary benefits for himself, his family members and his associates.
Accused Salman Tyagi was arrested on 03.10.2020 and subsequently other
members of the crime syndicate were also arrested. Confessional statements
of all the arrested accused persons were recorded under Section 18 of
MCOCA, where they admitted their different roles in running/participating
in the crimes syndicate of extortion of money by creating fear among public
persons with the use of illegal fire arms and they are also dealing in drugs/
contrabands.
1.3 Charge-sheet was filed against the arrested accused persons on
26.03.2020. Proceedings under Section 82 Cr.P.C. against accused Manish
Malhotra @ Sunny and Mohd. Faizal @ Bablu are stated to be under
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process. Accused persons/respondents are stated to be involved in case FIR
No. 342/2012 dated 25.09.2012 under Sections 307/429/147/148/149/34 IPC
and Sections 25/27/54/59 of the Arms Act, in which accused Salman Tyagi
along with gang members and the present two respondents/accused were
arrested in the case for assaulting the complainant with an iron rod, sword
and for firing gun shots upon the complainant.
1.4 Accused respondent/Hazi Mansoor is also stated to be involved in
case FIR No. 338/2012 under Sections 308/323/34 IPC at PS Hari Nagar in
which accused Salman Tyagi, the present accused/respondent and other
accused persons had beaten the complainant so severely that he would have
died of the consequences of beating.
1.5 It is the further case of the petitioner that during investigation, some
of the immovable properties belonging to the accused persons were
identified. The said properties were identified by main accused Salman
Tyagi during his PC remand as belonging to him or his family members,
including the present accused/respondents. As per law, there is an FIR
against the accused persons apart from confessional statements from the co-
accused and statements of independent witnesses, who had testified that they
were threatened by the present accused/respondents, so these are enough
grounds to invoke the stringent provisions of MCOCA against the
respondents.
1.6 These two accused/respondents were not arrested by the investigating
agency but they were granted bail without considering the fact that they
were required by the investigating agency for their custodial interrogation
for proper investigation of the case. Provisions under Section 438 Cr.P.C.
do not apply to the cases under MCOCA.
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1.7 The grounds on which the present petition is filed are that the bail
orders passed by the learned ASJ are without application of judicial mind,
based on conjectures and surmises; the application before learned Special
Judge was not filed under any provision of Cr.P.C.; the learned Special
Judge has conducted a mini trial at the stage of considering the bail
applications; there were no formal applications of surrender but the learned
ASJ in the impugned order has taken the respondents under court
custody/jurisdiction and thereafter granted regular bail and the procedure
prescribed under Section 439 Cr.P.C. was not followed; the confessional
statement under Section 18 MCOCA of other co-accused persons and the
involvement of the present respondents was not taken into consideration.
On these grounds, it has been prayed that the orders dated 25.11.2020 be set
aside and the bails granted to the respondents/accused be revoked.
2. Notice was issued. Response has been filed on behalf of the
respondents. On behalf of the respondents, it has been submitted that the
order dated 20.07.2020, wherein anticipatory bail was granted to Mustafa
Tyagi was not being challenged by the investigating agency. The present
respondents applied for anticipatory bails which were granted by the
impugned orders on the ground that the roles assigned to the present
petitioners are identical to Mustafa Tyagi. The investigating agency never
applied for issuance of NBWs against the present respondents and they were
never called upon to join investigation and that was the reason why
respondents approached the Court with a prayer to join investigation as they
were always willing, ready and available for joining the investigation.
2.1 The order has been challenged by prosecution after lapse of one year.
The bails were granted to the respondents on the ground that no case under
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MCOCA was made out against them and State was given liberty to approach
the concerned court in the event of any credible evidence against the
respondents is found for being involved in activity of organized crime
syndicate or holding assets on its behalf.
2.2 The petitioner never approached the learned Trial Court for
cancellation of the bail order dated 25.11.2020 because no new facts came
on record to implicate the present respondents as members of organized
crime syndicate or holding assets from proceeds of organised crime
syndicate. They have vehemently denied that they are members of any
organized crime syndicate. The details of the properties and the way they
have acquired the properties, have also been detailed. It has been stated that
the learned Trial Court has passed a reasoned order, so, there is no occasion
to recall or cancel the said order.
3. Written synopsis have been filed on behalf of the State as well as on
behalf of respondents.
3.1 I have heard the counsel for both the parties.
3.2 It is pointed out in the written synopsis on behalf of the State that both
the accused/respondents were arrested in case FIR No. 424/2021 dated
30.07.2021 under Sections 387/336/506/212/120B IPC and 25/27 Arms Act,
PS Hari Nagar and in the said case, Salman Tyagi (Kingpin) and Muntzeer
@ Munti (real brother of Salman Tyagi) were arrested on 27.08.2022 and
01.10.2021 respectively as they were found to be involved in demand of
extortion of money. Accused Salman Tyagi called complainant Bhoomi and
had demanded protection money of Rs. 15 lakhs from her and had asked her
to hand over the money to his family members, including the present
respondents/accused and when protection money was not given, accused
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Salman Tyagi with the help of organized crime syndicate members, fired
upon house of Bhoomi, so that in state of fear, she should deliver the
protection money demanded by accused Salman Tyagi. It categorically
reflects that both the accused persons are continuing unlawful activities
unabated on behalf of alleged organized crime syndicate.
3.3 It is to be further noted that Para no.16 of the impugned order in case
of Ibrahim Tyagi and para no.17 of the impugned order in case of accused
respondent Hazi Mansoor, clearly state that ‘ in the event of discovery of
credible evidence against accused/respondents regarding involvement in the
activity of organized crime syndicate or holding assets on its behalf, the bail
granted through this order shall be reconsidered’ .
3.4 The impugned order is dated 25.11.2020 and FIR bearing No.
424/2021, PS Hari Nagar, was registered only on 30.07.2021. This gives
cause of action to the State to approach the Court of learned Special Judge,
MCOCA for re-considering the orders dated 25.11.2020 for cancellation of
bail.
4. In view of the above, an opportunity is granted to the State to
approach the court of learned Special Judge, MCOCA in terms of the liberty
granted in the last paragraphs of orders dated 25.11.2020 and move
applications for cancellation of bails in both the cases. In case, any such
applications are moved by State, the present respondents shall have a right to
file their response and the learned Special Judge shall dispose of the said
application on merits after hearing both the parties.
4.1 At this juncture, attention of the learned Special Judge is drawn to
Section 21 of MCOCA, which is reproduced hereunder:-
“ 21. Modified application of certain provisions of the Code-
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(1) Notwithstanding anything contained in the Code or in any
other law, every offence punishable under this Act, shall be
deemed to be a cognizable offence within the meaning of clause
(c) of section 2 of the Code and “congnizable case” as defined in
that clause shall be construed accordingly.
(2) Section 167 of the Code shall apply in relation to a case
involving an offence punishable under this Act subject to the
modifications that, in sub-section (2),—
(a) the references to “ fifteen days”, and “sixty days”,
wherever they occur, shall be construed as references to
“thirty days ” and “ ninety days”, respectively ;
(b) after the proviso, the following proviso shall be inserted,
namely :—
Provided further that if it is not possible to complete the
investigation within the said period of ninety days, the Special
Court shall extend the said period upto one hundred and eighty
days, on the report of the Public Prosecutor indicating the
progress of the investigation and the specific reasons for the
detention of the accused beyond the said period of ninety days.”.
(3) Nothing in section 438 of the Code shall apply in relation to
any case involving the arrest of any person on an accusation of
having committed an offence punishable under this Act.
(4) Notwithstanding anything contained in the Code, no person
accused of an offence punishable under this Act shall, if in
custody, be released on bail or on his own bond, unless—
(a) the Public Prosecutor has been given an opportunity to
oppose the application of such release ; and
(b) where the Public Prosecutor opposes the application,
the Court is satisfied that there are reasonable grounds for
believing that he is not guilty of such offence and that he is
not likely to commit any offence while on bail.
(5) Notwithstanding anything contained in the Code, the accused
shall not be granted bail if it is noticed by the Court that he was
on bail in an offence under this Act, or under any other Act, on
the date of the offence in question.
(6) The limitations on granting of bail specified in sub-section (4)
are in addition to the limitations under the Code or any other law
for the time being in force on the granting of bail.
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(7) The police officer seeking the custody of any person for
preindictment or pre-trial interrogation from the judicial custody
shall file a written statement explaining the reason for seeking
such custody and also for the delay, if any, in seeking the police
custody”.
5. The applications to be filed by the State may be disposed of by the
Ld. Special Judge, keeping in view the above-noted provisions.
6. With these directions, the present appeals are disposed of. State shall
approach the learned Trial Judge within four weeks from the date of this
order.
7. It is needless to state that nothing stated hereinabove will come in the
way of the Ld. Special Judge while deciding the applications of the State on
merit.
TALWANT SINGH, J
AUGUST 05, 2022
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