The State Of Maharashtra vs Pankaj Jagshi Gangar

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)

JUDGMENT

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 Digitally signed by DEEPAK SINGH released on bail in Special MCOC No.24 of 2017 arising out Date: 2021.12.03 15:43:56 IST Reason:

of C.R. No.I­190 of 2017, registered with Kasarvadavli Police

1 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

2 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

3 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

4 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

5 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

6 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

7 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.

8 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.

9

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.

10

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)]

11 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.

12 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.

13

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

14 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

15