Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1493 OF 2021
The State of Maharashtra ..Appellant(S)
VERSUS
Pankaj Jagshi Gangar ..Respondent(S)
J U D G M E N T
M. R. Shah, J.
1. Feeling aggrieved and dissatisfied with the impugned order
dated 29.01.2019 passed by the Division Bench of the High
Court of Judicature at Bombay in Criminal Writ Petition No.
4639 of 2018 by which the Division Bench by way of an
interim relief directed the respondent herein – accused be
Signature Not Verified
released on bail in Special MCOC No.24 of 2017 arising out
Digitally signed by
DEEPAK SINGH
Date: 2021.12.03
15:43:56 IST
Reason:
of C.R. No.I190 of 2017, registered with Kasarvadavli Police
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Station, the State of Maharashtra has preferred the present
appeal.
2. At the outset, it is required to be noted that the present is a
glaring example of fourm shopping by the accused which
cannot be approved at all. The facts speak for itself, which
are as under:
2.1 That an FIR was registered as C.R. No.I190 of 2017 for the
offences under Sections 384, 386, 387 read with Section 34
of the IPC against three named accused persons namely Iqbal
Ibrahim Kaskar, Israr Jamil Sayyed and Mumtaz Ejaj Shaikh
@ Raju. The case on behalf of the prosecution has been
elaborately dealt with and considered by the learned Special
Judge (MCOC), Thane, in his order dated 26.03.2018, passed
below Exh. 15 in MCOC No.24 of 2017, by which the learned
Special Judge rejected the application submitted by the
respondent herein for bail and therefore the same is not
repeated. However, it is to be noted that during the course of
the investigation, it was found that there is organized crime
by international gangster Shakil Babu Mohiddin Shaikh @
Chhota Shakil @ C.S. and Iqbal Ibrahim Kaskar @ Iqbal
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Hasan Shaikh Ibrahim and it was also found that from time
to time, the respondent herein was paying the amount to
such organized crime syndicate and other gangs which they
used to use the said amount for taking help of other
members by paying amount to them and it was also found
that the respondent herein is running the Matka business in
Borivali, Mumbai, after prior sanction the provisions of
Maharashtra Control of Organised Crime Act (MCOCA) came
to be applied. After investigation a charge sheet was
submitted under the provisions of the IPC as well as under
the MCOCA. The respondent herein – accused filed the bail
application before the learned Special Judge. By a detailed
and reasoned judgment and order and after considering the
statements relied upon by the prosecution which are part of
the charge sheet, the learned Special Judge rejected the said
bail application vide order dated 26.03.2018.
3. Feeling aggrieved and dissatisfied with the rejection of the
bail application by the learned Special Judge, the respondent
herein – accused approached the High Court by way of bail
application No.855 of 2018. The same was heard by the
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learned Single Judge. From the order dated 13.07.2018
passed by the learned Single Judge, it appears and it cannot
be disputed that after hearing the learned counsel appearing
on behalf of the respondent herein accused at length and
when the High Court was not inclined to grant any relief, the
learned counsel on instructions withdrew the said bail
application. Therefore, the aforesaid bail application came to
be dismissed as withdrawn by the learned Single Judge vide
order dated 13.07.2018. Immediately on withdrawal of the
aforesaid bail application the respondent – accused filed the
writ petition before the Division Bench of the High Court and
prayed for the following reliefs:
“(a) Strike down Section 23(1)(a) of the MCOCA
being absolutely arbitrary, unguided,
uncanalized and thus, unconstitutional being
violative of the Articles 14, 19 and 21 of the
Constitution of India; or to save it from
unconstitutionality to read down, expound,
delineate the ambit & scope of the words 'prior
approval' occurring in Section 23(1)(a) of MCOCA
so as to ensure that the same is not rendered an
empty formality dependent upon whims, fancies,
prejudices and caprices of, the concerned officer;
(b) Strike down the provision of Section 21(4) of
MCOCA and declare the twin conditions imposed
for release on bail, as encapsulated therein, to be
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unconstitutional and violative of Article 14 and
21 of the Constitution of India;
(c) To quash and set aside the impugned prior
approval Order dated 10.10.2017 (ExhB supra)
issued under impugned Section 23(1)(a) qua the
petitioner, and consequently to quash the
proceedings qua the Petitioner in Special MCOCA
Case no.24 of 2017 under Section 384, 386, 387,
34 & 120 (b) of IPC and 3(1)(ii), 3(2), 3(4) and 3(5)
of MCOCA, 1999 arising out of C.R. No. I/190 of
2017 (ExhA supra) of Kasarvadavli Police
Station, at Thane and Charge Sheet dated
29.11.2017 (ExhF supra) insofar as the offences
under Sec 3(1)(ii), 3(2), 3(4) and 3(5) of MCOCA
have been invoked qua him;
(d) To set the petitioner at liberty on such terms
as deemed fit in the interest of justice;
(e) At the interim/adinterim stage, pending final
disposal, of the instant Application, the Petitioner
may please be released from custody in Special
MCOCA Case No.24 of 2017, arising out of C.R.
No.l190/2017 registered with Kasarvadavli
Police Station, Thane, on such interim bail, on
suitable terms and conditions, as this Hon'ble
Court deems fit and proper;”
3.1 By the impugned order the High Court has directed to issue
RULE in the writ petition challenging vires of Section 23(1)(a)
of the MCOCA and on the prayer to strike down the
provisions of Section 21(4) of the MCOCA and to declare the
twin conditions imposed for release on bail to be
unconstitutional and violative of Articles 14 and 21 of the
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Constitution of India. Therefore, as such the constitutionality
of aforesaid two provisions is yet to be considered by the High
Court in the pending writ petition. However, in writ petition
challenging the vires of aforesaid two provisions, the High
Court has also considered and dealt with on merits the
sanction/approval by the Additional Commissioner of Police
to invoke the provisions of MCOCA and though a detailed
appreciation of evidence is not required at this stage, and as
if the High Court was exercising the powers conferred under
Section 482 Cr.PC and/or considering the discharge
application, the High Court has observed that the order
passed by the Additional Commissioner of Police dated
10.10.2017 granting approval for invocation of the provisions
of the MCOCA suffers from non application of mind.
Thereafter after holding so and while admitting writ petition
challenging vires of aforesaid two provisions, the High Court
has granted the interim relief by directing that the
respondent herein – accused be released on bail in Special
MCOC No.24 of 2017 arising out of C.R. No.I190/2017.
Thus, the High Court has as such granted the relief of bail
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which the respondent – accused could not get before the
learned Single Judge in the bail application.
4. Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the Division Bench of the High
Court releasing the respondent herein – accused on bail that
too by way of interim relief, the State Government has
preferred the present appeal.
5. Learned counsel appearing on behalf of the appellant – State
has vehemently submitted that in the facts and
circumstances of the case, the High Court has committed a
grave error in releasing the respondent – accused on bail and
that too by way of interim relief.
5.1 It is submitted that while releasing the accused on bail, the
High Court has not at all considered the gravity of the
offences alleged. It is submitted that the High Court has also
not properly appreciated and considered the fact that earlier
by a detailed judgment and order the learned Special
Judge/MCOCA Judge rejected the bail application and even
thereafter the accused preferred the bail application before
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the High Court, which was heard by the learned Single Judge
and after hearing the learned counsel appearing on behalf of
the respective parties including the learned counsel
appearing on behalf of the accused, as the learned Single
Judge was not inclined to release the accused on bail, the
accused withdrew the said bail application and thereafter
filed a writ petition before the Division Bench of the High
Court under the guise of challenging the vires of the
provisions of MCOCA and prayed for interim relief which
unfortunately has been granted by the Division Bench of the
High Court.
5.2 It is submitted that the High Court has not at all considered
the fact that after the investigation a detailed charge sheet
has been filed by the investigating agency against the
accused.
5.3 It is submitted that as such releasing the accused on bail by
the Division Bench of the High Court by way of interim relief
is unsustainable in law in view of the decision of this court in
the case of
M/s Neeharika Infrastructure Pvt. Ltd. Vs.
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State of Maharashtra and Others (Criminal Appeal No.330
of 2021 decided on 13.04.2021)
5.4 It is submitted that as such by the impugned order the High
Court has virtually acquitted the accused for the offences
under the MCOCA and that too at the interim stage. It is
submitted that at the interim stage, the High Court has set
aside the approval/sanction given by the appropriate
authority invoking the MCOCA, which is inopportune and
untimely.
5.5 It is submitted that as such there was sufficient material on
record collected by the investigating agency, which was part
of the charge sheet that the respondent – accused arranges
funds for the expenses of purchasing weapons, information
and he is active member of the organized crime syndicate.
6. Making the above submissions, it is prayed to allow the
present appeal.
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7. The present appeal is opposed by Shri Siddhartha Dave,
learned Senior Advocate appearing on behalf of the
respondent – accused.
7.1 It is submitted that in the facts and circumstances of the
case and on considering the material available on record, the
High Court has rightly held that the sanction to prosecute
the accused under the MCOCA is bad in law. It is submitted
that the High Court has specifically observed that there is no
tangible material to invoke the provisions of the MCOCA. It is
submitted that therefore the High Court has rightly released
the accused on bail.
7.2 It is submitted that the respondent has been released on bail
by the High Court in the year 2019 and more than two years
have passed and there are no allegations that the accused
has misused the liberty while granting bail to him. Therefore,
it is requested not to cancel the bail granted by the High
Court, in exercise of powers under Article 136 of the
Constitution of India.
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8. We have heard the learned counsel appearing on behalf of
the respective parties at length.
9. At the outset, it is required to be noted that the allegations
against the respondent – accused are very serious in nature
i.e. offences under Sections 384, 386, 387 read with Section
34 of the IPC. On considering the material on record the
investigating agency has invoked the provisions of the
MCOCA. After investigation a charge sheet has been filed
against the accused for the offences under the IPC as well as
under the MCOCA. By the impugned order, the Division
Bench of the High Court has released the accused on bail
that too by way of interim relief. As per the law laid down by
this Court in the catena of decisions, the Division Bench
ought not to have released the accused on bail by way of
interim relief [see the decision of this Court in the case of
M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of
Maharashtra and Others (Criminal Appeal No.330 of 2021
decided on 13.04.2021)]
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9.1 It is required to be noted that while releasing the accused on
bail that too by way of interim relief the High Court has not
at all considered the seriousness of the offences alleged
against the accused. After the investigation it has been found
that the respondent – accused is running the Matka
business; is providing funds to the Chhota Shakil and his
gangs; that the accused is arranging funds for the expenses
of purchasing weapons, information and he is active member
of organized crime syndicate. By the impugned order, the
High Court has observed that the sanction to invoke the
provisions of the MCOCA is bad in law as there is no
evidence on record. Therefore, even the High Court has not at
all considered the allegations with respect to other offences
under the IPC. Even such an observation at the interim relief
stage on the sanction to prosecute/invoke the provisions of
MCOCA was not warranted. Virtually the High Court has
acquitted the accused for the offence under the MCOCA at
the interim relief stage and has granted the final relief at the
interim stage exonerating the respondent from MCOCA,
which is wholly impermissible.
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9.2 It is required to be noted that by the detailed judgment and
order, the learned Special Judge/MCOCA refused to release
the accused on bail. The accused challenged the same before
the High Court. The bail application preferred by the accused
was heard by the learned Single judge. Learned Single Judge
was not inclined to release the accused on bail and therefore
the accused withdrew the same and thereafter preferred the
writ petition before the Division Bench of the High Court
under the guise of challenging the vires of MCOCA and
without noticing the above, the Division Bench of the High
Court has released the accused on bail that too by way of
interim relief, which otherwise the accused could not get
before the learned Single Judge and he withdrew the bail
application. The aforesaid can be said to be forum shopping
by the accused which is highly deprecated and which cannot
be approved. On this ground also, the accused is not entitled
to be released on bail and the impugned order passed by the
High Court releasing the accused on bail deserves to be
quashed and set aside.
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10. Now so far as the submissions on behalf of the accused that
as the accused is released in the year 2019 pursuant to the
impugned order passed by the High Court and thereafter he
has not misused the liberty shown to him while releasing him
on bail therefore the impugned order may not be quashed
and the bail may not be cancelled is concerned, it is required
to be noted that as per the law laid down by this Court in the
catena of decisions quashing and setting aside the wrong
order releasing the accused on bail and to cancel the bail of
the accused on misuse of liberty etc., both stand on different
footing and the different criteria shall be applicable. It is not
a question of cancellation of bail but it is a question of
quashing and setting aside the wrong order passed by the
court releasing the accused on bail.
11. In view of the above and for the reasons stated above, the
present appeal succeeds. The impugned order dated
29.01.2019 passed by the Division Bench of the High Court
in Criminal Writ Petition No.4639 of 2018 releasing the
respondent – accused on bail in connection with Special
MCOC No.24 of 2017 arising out of C.R. No. I190 of 2017
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registered with Kasarvadavli Police, is hereby quashed and
set aside. Consequently the respondent – accused is directed
to surrender forthwith and to face the trial. If the respondent
does not surrender forthwith, his presence be secured by the
concerned Court by issuing nonbailable warrant. The
present appeal is accordingly allowed.
…………………………………J.
(M. R. SHAH)
…………………………………J.
(SANJIV KHANNA)
New Delhi,
December 03, 2021
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