THE STATE OF MAHARASHTRA versus PANKAJ JAGSHI GANGAR on 3 December 2021

[2021] 9 S.C.R. 307

THE STATE OF MAHARASHTRA

v.

PANKAJ JAGSHI GANGAR

(Criminal Appeal No. 1493 Of 2021)

DECEMBER 03, 2021

[M. R. SHAH AND SANJIV KHANNA, JJ.]

Penal Code, 1860 – ss.384,386,387 r/w. s.34 – MaharashtraControl of Organised Crime Act, 1999 – s.23(1)(a) and s.21(4) –Prosecution case that there was a organized crime by oneinternational gangster and it was also found that from time to time,the respondent was paying the amount to such organized crimesyndicate and other gangs which they used to use the said amountfor taking help of other members by paying amount to them and itwas also found that the respondent was running the Matka business– After investigation a charge sheet was submitted under theprovisions of the IPC as well as under the Maharashtra Control ofOrganised Crime Act, 1999 (MCOCA) – The respondent-accusedfiled the bail application before the Special Judge, which wasrejected – The Single Judge of the High Court was also not inclinedto grant any relief to the respondent and the application waswithdrawn – Thereafter, the accused filed writ petition before theDivision Bench of the High Court and sought to strike downs. 23(1)(a) and s.21(4) of the MCOCA, as the said provisions wereunconstitutional and violative of Arts.14 and 21 of the Constitution– The Division Bench of the High Court observed that the orderpassed by the Additional Commissioner of Police granting approvalfor invocation of the provisions of the MCOCA suffers from nonapplication of mind and granted interim relief to the respondent byreleasing the him on bail – On appeal, held: The High Court hasnot at all considered the seriousness of the offences alleged againstthe accused – After the investigation it was found that the respondent-accused is running the Matka business; is providing funds to ainternational gangster and his gangs; that the accused is arrangingfunds for the expenses of purchasing weapons, information and heis active member of organized crime syndicate – High Court hasnot considered the allegations with respect to other offences under

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Athe IPC – High Court acquitted the accused for the offence underthe MCOCA at the interim relief stage and granted the final relief atthe interim stage exonerating the respondent from MCOCA, whichis wholly impermissible – This can be said to be forum shopping bythe accused which is highly deprecated and which cannot beapproved – Therefore, the impugned order passed by the DivisionBBench of the High Court is quashed and set aside – Respondent-accused directed to surrender and face trial.

Allowing the appeal, the Court

HELD: 1. At the outset, it is required to be noted that theCallegations against the respondent – accused are very serious innature i.e. offences under Sections 384, 386, 387 read with Section34 of the IPC. On considering the material on record theinvestigating agency has invoked the provisions of theMaharashtra Control of Organised Crime Act, 1999 (MCOCA).After investigation a charge sheet has been filed against theDaccused for the offences under the IPC as well as under theMCOCA. By the impugned order, the Division Bench of the HighCourt has released the accused on bail that too by way of interimrelief. As per the law laid down by this Court in the catena ofdecisions, the Division Bench ought not to have released theEaccused on bail by way of interim relief [see the decision of thisCourt in the case of M/s Neeharika Infrastructure Pvt. Ltd. vs.State of Maharashtra and Others (Criminal Appeal No.330 of 2021decided on 13.04.2021)]. [Para 9][314-E-H]

2. It is required to be noted that while releasing the accusedFon bail that too by way of interim relief the High Court has not atall considered the seriousness of the offences alleged againstthe accused. After the investigation it has been found that therespondent – accused is running the Matka business; is providingfunds to a international gangster and his gangs; that the accusedis arranging funds for the expenses of purchasing weapons,Ginformation and he is active member of organized crime syndicate.By the impugned order, the High Court has observed that thesanction to invoke the provisions of the MCOCA is bad in law asthere is no evidence on record. Therefore, even the High Court H

has not at all considered the allegations with respect to otheroffences under the IPC. Even such an observation at the interimrelief stage on the sanction to prosecute/invoke the provisionsof MCOCA was not warranted. Virtually the High Court hasacquitted the accused for the offence under the MCOCA at theinterim relief stage and has granted the final relief at the interimstage exonerating the respondent from MCOCA, which is whollyimpermissible. [Para 9.1][314-H; 315-A-C]

3. It is required to be noted that by the detailed judgmentand order, the Special Judge/MCOCA refused to release theaccused on bail. The accused challenged the same before theHigh Court. The bail application preferred by the accused washeard by the Single judge. Learned Single Judge was not inclinedto release the accused on bail and therefore the accused withdrewthe same and thereafter preferred the writ petition before theDivision Bench of the High Court under the guise of challengingthe vires of MCOCA and without noticing the above, the DivisionBench of the High Court has released the accused on bail thattoo by way of interim relief, which otherwise the accused couldnot get before the learned Single Judge and he withdrew the bailapplication. The aforesaid can be said to be forum shopping bythe accused which is highly deprecated and which cannot beapproved. On this ground also, the accused is not entitled to bereleased on bail and the impugned order passed by the High Courtreleasing the accused on bail deserves to be quashed and setaside. [Para 9.2][315-D-F]

M/s Neeharika Infrastructure Pvt. Ltd. Vs. State ofMaharashtra and Others (Criminal Appeal No.330 of2021 decided on 13.04.2021)] – referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo.1493 of 2021.

From the Judgment and Order dated 29.01.2019 of the High Courtof Judicature at Bombay in Criminal Writ Petition No.4639 of 2018.

Sachin Patil, Rahul Chitnis, Aaditya A. Pande, Geo Joseph, Advs.for the Appellant.

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ASiddhartha Dave, Sr. Adv., Aditya Verma, Ms. Priyamvada Mishra,Aditya Singh, Advs. for the Respondent.

The Judgment of the Court was delivered by

M. R. SHAH, J.B

B1. Feeling aggrieved and dissatisfied with the impugned order dated29.01.2019 passed by the Division Bench of the High Court of Judicatureat Bombay in Criminal Writ Petition No. 4639 of 2018 by which theDivision Bench by way of an interim relief directed the respondent herein– accused be released on bail in Special MCOC No.24 of 2017 arisingout of C.R. No.I-190 of 2017, registered with Kasarvadavli Police Station,Cthe State of Maharashtra has preferred the present appeal.

2. At the outset, it is required to be noted that the present is aglaring example of fourm shopping by the accused which cannot beapproved at all. The facts speak for itself, which are as under:-

D2.1 That an FIR was registered as C.R. No.I-190 of 2017 for theoffences under Sections 384, 386, 387 read with Section 34 of the IPCagainst three named accused persons namely Iqbal Ibrahim Kaskar, IsrarJamil Sayyed and Mumtaz Ejaj Shaikh @ Raju. The case on behalf ofthe prosecution has been elaborately dealt with and considered by thelearned Special Judge (MCOC), Thane, in his order dated 26.03.2018,Epassed below Exh. 15 in MCOC No.24 of 2017, by which the learnedSpecial Judge rejected the application submitted by the respondent hereinfor bail and therefore the same is not repeated. However, it is to benoted that during the course of the investigation, it was found that thereis organized crime by international gangster Shakil Babu Mohiddin ShaikhF@ Chhota Shakil @ C.S. and Iqbal Ibrahim Kaskar @ Iqbal HasanShaikh Ibrahim and it was also found that from time to time, the respondentherein was paying the amount to such organized crime syndicate andother gangs which they used to use the said amount for taking help ofother members by paying amount to them and it was also found that therespondent herein is running the Matka business in Borivali, Mumbai,Gafter prior sanction the provisions of Maharashtra Control of OrganisedCrime Act (MCOCA) came to be applied. After investigation a chargesheet was submitted under the provisions of the IPC as well as underthe MCOCA. The respondent herein – accused filed the bail applicationbefore the learned Special Judge. By a detailed and reasoned judgmentand order and after considering the statements relied upon by theH

prosecution which are part of the charge sheet, the learned Special Judgerejected the said bail application vide order dated 26.03.2018.

3. Feeling aggrieved and dissatisfied with the rejection of the bailapplication by the learned Special Judge, the respondent herein – accusedapproached the High Court by way of bail application No.855 of 2018.The same was heard by the learned Single Judge. From the order dated13.07.2018 passed by the learned Single Judge, it appears and it cannotbe disputed that after hearing the learned counsel appearing on behalf ofthe respondent herein - accused at length and when the High Court wasnot inclined to grant any relief, the learned counsel on instructionswithdrew the said bail application. Therefore, the aforesaid bail applicationcame to be dismissed as withdrawn by the learned Single Judge videorder dated 13.07.2018. Immediately on withdrawal of the aforesaidbail application the respondent – accused filed the writ petition beforethe Division Bench of the High Court and prayed for the following reliefs:- “(a) Strike down Section 23(1)(a) of the MCOCA being absolutelyarbitrary, unguided, uncanalized and thus, unconstitutional beingviolative 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’ occurringin Section 23(1)(a) of MCOCA so as to ensure that the same isnot 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 anddeclare the twin conditions imposed for release on bail, asencapsulated therein, to be unconstitutional and violative of Article14 and 21 of the Constitution of India;

(c) To quash and set aside the impugned prior approval Orderdated 10.10.2017 (Exh-B supra) issued under impugned Section23(1)(a) qua the petitioner, and consequently to quash theproceedings qua the Petitioner in Special MCOCA Case no.24 of2017 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 (Exh-A supra) of Kasarvadavli Police Station, at Thaneand Charge Sheet dated 29.11.2017 (Exh-F supra) insofar as theoffences under Sec 3(1)(ii), 3(2), 3(4) and 3(5) of MCOCA havebeen invoked qua him; AB

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[2021] 9 S.C.R.

A(d) To set the petitioner at liberty on such terms as deemed fit inthe interest of justice; (e) At the interim/ad-interim stage, pending final disposal, of theinstant Application, the Petitioner may please be released fromcustody in Special MCOCA Case No.24 of 2017, arising out ofBC.R. No.l-190/2017 registered with Kasarvadavli Police Station,Thane, on such interim bail, on suitable terms and conditions, asthis Hon’ble Court deems fit and proper;”

3.1 By the impugned order the High Court has directed to issueRULE in the writ petition challenging vires of Section 23(1)(a) of theCMCOCA and on the prayer to strike down the provisions of Section21(4) of the MCOCA and to declare the twin conditions imposed forrelease on bail to be unconstitutional and violative of Articles 14 and 21of the Constitution of India. Therefore, as such the constitutionality ofaforesaid two provisions is yet to be considered by the High Court in thepending writ petition. However, in writ petition challenging the vires ofDaforesaid two provisions, the High Court has also considered and dealtwith on merits the sanction/approval by the Additional Commissioner ofPolice to invoke the provisions of MCOCA and though a detailedappreciation of evidence is not required at this stage, and as if the HighCourt was exercising the powers conferred under Section 482 Cr.PCEand/or considering the discharge application, the High Court has observedthat the order passed by the Additional Commissioner of Police dated10.10.2017 granting approval for invocation of the provisions of theMCOCA suffers from non application of mind.

Thereafter after holding so and while admitting writ petitionFchallenging vires of aforesaid two provisions, the High Court has grantedthe interim relief by directing that the respondent herein – accused bereleased on bail in Special MCOC No.24 of 2017 arising out of C.R.No.I-190/2017. Thus, the High Court has as such granted the relief ofbail which the respondent – accused could not get before the learnedSingle Judge in the bail application.G

4. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the Division Bench of the High Court releasing therespondent herein – accused on bail that too by way of interim relief, theState Government has preferred the present appeal.

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5. Learned counsel appearing on behalf of the appellant – Statehas vehemently submitted that in the facts and circumstances of thecase, the High Court has committed a grave error in releasing therespondent – accused on bail and that too by way of interim relief.

5.1 It is submitted that while releasing the accused on bail, theHigh Court has not at all considered the gravity of the offences alleged.It is submitted that the High Court has also not properly appreciated andconsidered the fact that earlier by a detailed judgment and order thelearned Special Judge/MCOCA Judge rejected the bail application andeven thereafter the accused preferred the bail application before theHigh Court, which was heard by the learned Single Judge and afterhearing the learned counsel appearing on behalf of the respective partiesincluding the learned counsel appearing on behalf of the accused, as thelearned Single Judge was not inclined to release the accused on bail, theaccused withdrew the said bail application and thereafter filed a writpetition before the Division Bench of the High Court under the guise ofchallenging the vires of the provisions of MCOCA and prayed for interimrelief which unfortunately has been granted by the Division Bench ofthe High Court.

5.2 It is submitted that the High Court has not at all consideredthe fact that after the investigation a detailed charge sheet has beenfiled by the investigating agency against the accused.

5.3 It is submitted that as such releasing the accused on bail bythe Division Bench of the High Court by way of interim relief isunsustainable in law in view of the decision of this court in the case ofM/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtraand 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 HighCourt has virtually acquitted the accused for the offences under theMCOCA and that too at the interim stage. It is submitted that at theinterim stage, the High Court has set aside the approval/sanction givenby the appropriate authority invoking the MCOCA, which is inopportuneand untimely.

5.5 It is submitted that as such there was sufficient material onrecord collected by the investigating agency, which was part of the chargesheet that the respondent – accused arranges funds for the expenses of A

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Apurchasing weapons, information and he is active member of the organizedcrime syndicate.

6. Making the above submissions, it is prayed to allow the presentappeal.

7. The present appeal is opposed by Shri Siddhartha Dave, learnedBSenior Advocate appearing on behalf of the respondent – accused.

7.1 It is submitted that in the facts and circumstances of the caseand on considering the material available on record, the High Court hasrightly held that the sanction to prosecute the accused under the MCOCAis bad in law. It is submitted that the High Court has specifically observedCthat there is no tangible material to invoke the provisions of the MCOCA.It is submitted that therefore the High Court has rightly released theaccused on bail.

7.2 It is submitted that the respondent has been released on bailby the High Court in the year 2019 and more than two years have passedDand there are no allegations that the accused has misused the libertywhile granting bail to him. Therefore, it is requested not to cancel thebail granted by the High Court, in exercise of powers under Article 136of the Constitution of India.

8. We have heard the learned counsel appearing on behalf of theErespective parties at length.

9. At the outset, it is required to be noted that the allegationsagainst the respondent – accused are very serious in nature i.e. offencesunder Sections 384, 386, 387 read with Section 34 of the IPC. Onconsidering the material on record the investigating agency has invokedFthe provisions of the MCOCA. After investigation a charge sheet hasbeen filed against the accused for the offences under the IPC as well asunder the MCOCA. By the impugned order, the Division Bench of theHigh Court has released the accused on bail that too by way of interimrelief. 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 byGway of interim relief [see the decision of this Court in the case of M/sNeeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra andOthers (Criminal Appeal No.330 of 2021 decided on 13.04.2021)]

9.1 It is required to be noted that while releasing the accused onbail that too by way of interim relief the High Court has not at allH

considered the seriousness of the offences alleged against the accused.After the investigation it has been found that the respondent – accusedis running the Matka business; is providing funds to the Chhota Shakiland his gangs; that the accused is arranging funds for the expenses ofpurchasing weapons, information and he is active member of organizedcrime syndicate. By the impugned order, the High Court has observedthat the sanction to invoke the provisions of the MCOCA is bad in lawas there is no evidence on record. Therefore, even the High Court hasnot at all considered the allegations with respect to other offences underthe IPC. Even such an observation at the interim relief stage on thesanction to prosecute/invoke the provisions of MCOCA was notwarranted. Virtually the High Court has acquitted the accused for theoffence under the MCOCA at the interim relief stage and has grantedthe final relief at the interim stage exonerating the respondent fromMCOCA, which is wholly impermissible.

9.2 It is required to be noted that by the detailed judgment andorder, the learned Special Judge/MCOCA refused to release the accusedon bail. The accused challenged the same before the High Court. Thebail application preferred by the accused was heard by the learned Singlejudge. Learned Single Judge was not inclined to release the accused onbail and therefore the accused withdrew the same and thereafter preferredthe writ petition before the Division Bench of the High Court under theguise of challenging the vires of MCOCA and without noticing the above,the Division Bench of the High Court has released the accused on bailthat too by way of interim relief, which otherwise the accused could notget before the learned Single Judge and he withdrew the bail application.The aforesaid can be said to be forum shopping by the accused which ishighly deprecated and which cannot be approved. On this ground also,the accused is not entitled to be released on bail and the impugned orderpassed by the High Court releasing the accused on bail deserves to bequashed and set aside.

10. Now so far as the submissions on behalf of the accused thatas the accused is released in the year 2019 pursuant to the impugnedorder passed by the High Court and thereafter he has not misused theliberty shown to him while releasing him on bail therefore the impugnedorder 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 thecatena of decisions quashing and setting aside the wrong order releasing A

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Athe accused on bail and to cancel the bail of the accused on misuse ofliberty etc., both stand on different footing and the different criteria shallbe applicable. It is not a question of cancellation of bail but it is a questionof quashing and setting aside the wrong order passed by the courtreleasing the accused on bail.

B11. In view of the above and for the reasons stated above, thepresent appeal succeeds. The impugned order dated 29.01.2019 passedby the Division Bench of the High Court in Criminal Writ Petition No.4639of 2018 releasing the respondent – accused on bail in connection withSpecial MCOC No.24 of 2017 arising out of C.R. No. I-190 of 2017registered with Kasarvadavli Police, is hereby quashed and set aside.

CConsequently the respondent – accused is directed to surrender forthwithand to face the trial. If the respondent does not surrender forthwith, hispresence be secured by the concerned Court by issuing non-bailablewarrant. The present appeal is accordingly allowed.

DAnkit Gyan

Appeal allowed.

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