Penal Code, 1860 – ss.384,386,387 r/w. s.34 – Maharashtra Control of Organised Crime Act, 1999 – s.23(1)(a) and s.21(4) – Prosecution case that there was a organized crime by one international gangster and it was also found that from time to time, the respondent 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 was running the Matka business – After investigation a charge sheet was submitted under the provisions of the IPC as well as under the Maharashtra Control of Organised Crime Act, 1999 (MCOCA) – The respondent-accused filed the bail application before the Special Judge, which was rejected – The Single Judge of the High Court was also not inclined to grant any relief to the respondent and the application was withdrawn – Thereafter, the accused filed writ petition before the Division Bench of the High Court and sought to strike down s. 23(1)(a) and s.21(4) of the MCOCA, as the said provisions were unconstitutional and violative of Arts.14 and 21 of the Constitution – The Division Bench of the High Court observed that the order passed by the Additional Commissioner of Police granting approval for invocation of the provisions of the MCOCA suffers from non application of mind and granted interim relief to the respondent by releasing the him on bail – On appeal, held: The High Court has not at all considered the seriousness of the offences alleged against the accused – After the investigation it was found that the respondentaccused is running the Matka business; is providing funds to a international gangster 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 – High Court has not considered the allegations with respect to other offences under the IPC – High Court acquitted the accused for the offence under the MCOCA at the interim relief stage and granted the final relief at the interim stage exonerating the respondent from MCOCA, which is wholly impermissible – This can be said to be forum shopping by the accused which is highly deprecated and which cannot be approved – Therefore, the impugned order passed by the Division Bench of the High Court is quashed and set aside – Respondentaccused directed to surrender and face trial. Allowing the appeal, the Court
HELD: 1. 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 Maharashtra Control of Organised Crime Act, 1999 (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)]. [Para 9][314-E-H]
2. 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 a international gangster 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. [Para 9.1][314-H; 315-A-C]
3. It is required to be noted that by the detailed judgment and order, the 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 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. [Para 9.2][315-D-F]
M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and Others (Criminal Appeal No.330 of 2021 decided on 13.04.2021)] – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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