MUKESHBHAI VALLABHBHAI ABHANGI versus STATE OF GUJARAT on 4 May 2023

[2023] 4 S.C.R. 1137

MUKESHBHAI VALLABHBHAI ABHANGI

v.

STATE OF GUJARAT

(Criminal Appeal No. 1391 of 2023)

MAY 04, 2023

[AJAY RASTOGI AND AHSANUDDIN AMANULLAH, JJ.]

Bail : Grant of – Appellant, along with accused no.1 whowas operating an organised crime syndicate involving, inter alia,extortion, land grabbing, contract killing, money-laundering,pressurized Secret Witness 11 to enter into a deal – SW11 wasthreatened to execute around 18 separate sale deeds with eithercreditors of the leader of the organized crime syndicate-accusedno. 1 or creditors of the appellant – Allegedly the appellant hadextorted 50,000 square feet of land from the said persons – FIRagainst the appellant for offences punishable under the 2015 Actand Penal Code, 1860 – Bail application by the appellant –Dismissed by the High Court – On appeal, held : There was onlyone case prior to the instant case, that too of the year 2014 and theFIR thereof having been quashed by the High Court, even prior tothe filing of the charge-sheet, if accepted, helps the appellant andtilt the balance in his favour – Appellant has succeeded in makingout a prima facie case for the grant of bail – Furthermore, theappellant is in jail for past 2½ years and it is the first time, he isaccused of such nature of crimes – Thus, the appellant be releasedon bail on such terms and conditions as found appropriate by thetrial court – Gujarat Control of Terrorism and Organised CrimeAct, 2015 – ss. 3(1), 3(2), 3(3), 3(4) and 3(5) and 4 – Penal Code,1860 – ss. 386, 387, 506(1), 506(2), 507, 201, 120B.

State of Gujarat v Sandip Omprakash Gupta 2022 SCCOnLine SC 1727; State of Maharashtra v Shiva aliasShivaji Ramaji Sonawane (2015) 14 SCC 272 : [2015]9 SCR 211; Mohammed Iliyas Mohammed BilalKapadiya v State of Gujarat 2022 SCC OnLine SC713; Gudikanti Narasimhulu v Public Prosecutor, (1978)1 SCC 240 : [1978] 2 SCR 371; Niranjan Singh vPrabhakar Rajaram Kharote (1980) 2 SCC 559 : [1980]

1137

A

B

CDE

F

G

H

1138SUPREME COURT REPORTS

A3 SCR 15; Vilas Pandurang Pawar v State ofMaharashtra (2012) 8 SCC 795 : [2012] 8 SCR 270 –referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.C1391 of 2023.From the Judgment and Order dated 28.11.2022 of the High Courtof Gujarat at Ahmedabad in CRMA No. 13783 of 2021.

Maninder Singh, Ms. Nitya Ramakrishnan, Sr. Advs., E. C.DAgrawala, Sunil Murarka, Ankur Saigal, Gunnam Venkantewara Rao,Ms. S. Lakshmi Iyer, Ms. Anwesha Padhi, Pradhuman Gohil, Mrs. TarunaSingh Gohil, Ms. Ranu Purohit, Alapati Sahithya Krishna, Ms. Nidhi Mittal,Advs. for the Appellant.

S. V. Raju, ASG, Ms. Swati Ghildiyal, Ms. Devyani Bhatt, PraveenEKumar Singh, Advs. for the Respondent.

The Judgment of the Court was delivered by AHSANUDDIN AMANULLAH, J.

Leave granted.

F2. The present Appeal is directed against the Final Judgment andOrder dated 28.11.2022 (hereinafter referred to as the “ImpugnedJudgment”) passed by the High Court of Gujarat at Ahmedabad(hereinafter referred to as the “High Court”) in Criminal MiscellaneousApplication No.13783 of 2021, whereby the Appellant’s prayer for releaseon bail has been dismissed.G

THE FACTUAL PRISM:

3. The Appellant is accused along with others in FIR Cr No.I-11202008202186 of 2020 registered with the “A” Division Police Station,Jamnagar, Gujarat for offences punishable under Sections 3(1), 3(2),H3(3), 3(4) and 3(5) and 4 of the Gujarat Control of Terrorism and Organised Crime Act, 2015 (hereinafter referred to as the “GCTOC Act”) readwith Sections 386, 387, 506(1) and 506(2) of the Indian Penal Code,1860 (hereinafter referred to as the “IPC”). The present Appellant isarrayed as accused no.8 in the said FIR.

4. The case was registered on the basis of secret informationreceived that accused no.1 Jaysukh Muljibhai Ranpariay @ Jayesh Patelwas operating an organised crime syndicate in the city of Jamnagar inthe State of Gujarat, involving, inter alia, extortion, land grabbing,contract killing, money-laundering etc.

5. It was revealed that for such purpose, to derive monetarybenefits, he threatened land-owners and realtors/developers byintimidating and threatening them with physical injury and threats to theirlives. It was also unearthed that various WhatsApp calls were intercepted,revealing the names of other persons, who stand arrayed as co-accused.The Appellant is associated with Shivdhara Buildcon, a constructioncompany involved in several land development projects in Jamnagar. Itwas alleged by Secret Witness 11 (hereinafter referred to as “SW11”)that in order to pay Rs.16,00,00,000/- (Rupees Sixteen Crores) debt withregard to J.J. Jasodanath Scheme, the Appellant had offered a propertynear his office. When SW 11 refused the offer, the very next day, theAppellant involved accused no.1 in order to pressurize SW11. Thereafter,SW11 was threatened and pressurised by the organised crime syndicateto explore the proposal, under which approximately 50,000 square feet,comprising of 26,000 square feet from the appellant’s J.J. JasodanathScheme and 24,000 square feet from one Ashvin Virani (PW85) whowas running the scheme Jay Hari-3 (Khodal Villa) were to be shown tobe returned to SW11. But it is alleged that SW 11 was later on threatenedto execute around 18 seperate sale deeds with either creditors of theleader of the organised crime syndicate (accused no.1), or creditors ofthe Appellant-accused no.8, or persons known to the present Appellant.In effect, it was alleged that the Appellant had extorted 50,000 squarefeet of land from the afore-described persons.

SUBMISSION BY THE APPELLANT:

6. It was submitted that the High Court erroneously relied on theFirst Information Report filed against the Appellant in the year 2014,despite the factum that it stood quashed by the High Court vide orderdated 24.12.2014. Moreover, it was contended thattheincident, for whichthe 2014 FIR was lodged, was of a personal nature and there was no A

B

C

D

E

F

G

H

Aallegation of the Appellant whatsoever being, in any way, concernedwith any organised crime syndicate. It was pointed out that no charge-sheet had been filed against him.

7. Learned counsel drew the Court’s attention to State of Gujaratv Sandip Omprakash Gupta, 2022 SCC OnLine SC 1727, datedB15.12.2022, the relevant being at Paragraphs No. 49, 56 and 57, whichaffirms State of Maharashtra v Shiva alias Shivaji Ramaji Sonawane,(2015) 14 SCC 272, which stipulates that the defence of “organisedcrime” could be said to have been constituted by at least one incident ofcontinuation apart from continuing unlawful activity evidenced by morethan one chargesheets in the preceding ten years.C

8. Learned counsel also referred to the decision dated 30.05.2022passed by this Court in SLP (Crl.) No. 1815 of 2022 titled ‘MohammedIliyas Mohammed Bilal KapadiyavState of Gujarat’, since reportedas 2022 SCC OnLine SC 713, wherein also Section 2(c) of the GCTOCAct was involved and bail was granted on the ground that “only oneDcharge sheet was filed in respect of an activity which can be said tohave been undertaken by the appellant/applicant as a member ofan organised crime syndicate on behalf of such syndicate” as opposedto the requirement of “more than one chargesheet” under Section 2(c)of the GCTOC Act.ESUBMISSIONS OF THE RESPONDENT STATE:

9. Mr S V Raju, learned Additional Solicitor General of Indiaappearing for the State submits that the appellant was in close contactwith accused no.1 Jaysukh @ Jayesh Muljibhai Ranpara (Patel) andduring interrogation, the co-accused have stated that the Appellant usedFto supply information to Jaysukh @ Jayesh Muljibhai Ranpara (Patel)relating to projects of the developers and thus, facilitated the wholeexercise of extortion. It was further submitted that the mobile phone(s)seized from the Appellant during the investigation revealed that he wasin touch with the organised crime syndicate. It was submitted that theGImpugned Judgment did not warrant any interference by this Court.

ANALYSIS, REASONING AND CONCLUSION:

10. Our discretion must be exercised judiciously. Guidance isforthcoming from Gudikanti Narasimhulu v Public Prosecutor, (1978)1 SCC 240:H

“3. What, then, is “judicial discretion” in this bail context?Inthe elegant words of Benjamin Cardozo [ The Nature of theJudicial Process — Yale University Press (1921)]:

“The Judge, even when he is free, is still not wholly free. Heis not to innovate at pleasure. He is not a knight-errantroaming at will in pursuit of his own ideal of beauty or ofgoodness. He is to draw his inspiration from consecratedprinciples. He is not to yield to spasmodic sentiment, to vagueand unregulated benevolence. He is to exercise a discretioninformed by tradition, methodized by analogy, disciplined bysystem, and subordinated to “the primordial necessity of orderin the social life”. Wide enough in all conscience is the fieldof discretion that remains.”

Even so it is useful to notice the tart terms of Lord Camdenthat [ 1 Bovu, Law Dict., Rawles’ III Revision p. 885 — quotedin Judicial Discretion — National College of the StateJudiciary, Rano, Nevada p. 14] “the discretion of a Judge isthe law of tyrants: it is always unknown, it is different indifferent men; it is casual, and depends upon constitution,temper and passion. In the best, it is oftentimes caprice; inthe worst, it is every vice, folly and passion to which humannature is liable....”

4. Some jurists have regarded the term “judicial discretion”as a misnomer. Nevertheless, the vesting of discretion is theunspoken but inescapable, silent command of our judicialsystem, and those who exercise it will remember that discretion,when applied to a Court of Justice, means sound discretionguided by law. It must be governed by rule, not by humour; itmust not be arbitrary, vague and fanciful, but legal andregular.

An appeal to a Judge’s discretion is an appeal to his judicialconscience. The discretion must be exercised, not in oppositionto, but in accordance with, established principles of law.[Judicial discretion, (ibid) p. 33]”

(emphasis supplied)

11. In order not to prejudice either side, we are eschewing copiousreference to the evidentiary material available on the record. In Niranjan AB

C

D

E

F

G

H

ASingh v Prabhakar Rajaram Kharote, (1980) 2 SCC 559, this Courtobserved:

“3… Detailed examination of the evidence and elaboratedocumentation of the merits should be avoided while passingorders on bail applications. No party should have theBimpression that his case has been prejudiced. To be satisfiedabout a prima facie case is needed but it is not the same as an”exhaustive exploration of the merits in the order itself.

(emphasis supplied)

12. In Vilas Pandurang Pawar v State of Maharashtra, (2012)C8 SCC 795, this Court opined “…Moreover, while considering theapplication for bail, scope for appreciation of evidence and othermaterial on record is limited. The court is not expected to indulge incritical analysis of the evidence on record…”.

D13. Being in respectful agreement with the law exposited in thesecases, we refrain from detailing our views on the merits.

14. Having considered the matter, the Court finds that for thepurposes of considering grant of bail to the Appellant, at this stage, thefact that there was only one case prior to the present case, that too ofEthe year 2014 and the FIR thereof having been quashed by the HighCourt, even prior to the filing of the charge-sheet, even for the sake ofargument, if accepted, helps the Appellant and tilt the balance in hisfavour. The Appellant has succeeded in making out a prima facie casefor the grant of bail.

F15. The Appellant is in jail since 16.10.2020 viz. for over 2½ years.Admittedly, it is the first time, he is accused of such nature of crimes.

16. Accordingly, let the Appellant be released on bail on suchterms and conditions as found appropriate by the learned Trial Court.

17. With a view to protect the State’s interests, we impose theGfollowing conditions in addition:

I. The Appellant shall report to the Investigating Officer on everyMonday between 10AM to 1PM.

II. The Appellant would give an undertaking to the Trial CourtHwith regard to his good behaviour.

MUKESHBHAI VALLABHBHAI ABHANGI v. STATE OFGUJARAT [AHSANUDDIN AMANULLAH, J.]

III. The Appellant shall in no way attempt to influence the witnessesor tamper with the record.

IV. The Appellant’s passport, if not already surrendered, shall besurrendered to the Trial Court.

18. Any violation of the terms and conditions of the bonds or theundertaking would entitle the respondent to move swiftly for cancellationof the bail to the Appellant.

19. The Appeal is allowed accordingly. Any pending application(s)is/are closed in this light.

Nidhi Jain(Assisted by : Rakhi, LCRA)

Appeal allowed.

A

B

C

D

E

F

G

H