TMI Blog2012 (10) TMI 1157X X X X Extracts X X X X X X X X Extracts X X X X ..... e punishable u/s 4 of MCOCA attracts against the Respondent - accused. Considering the facts, particularly, in the light of the bar u/s 21(4) of MCOCA, the Special Court rightly rejected the application for bail filed by the Respondent herein. Accordingly, the impugned order of the High Court in Criminal Bail Application granting bail to the Respondent is set aside and the order of the special Judge is restored. In view of the same, the Respondent is directed to surrender before the Special Court within a period of two weeks from the date of passing of this order, failing which, the special Court is directed to take appropriate steps for his arrest. The appeal of State of Maharashtra is allowed. - Criminal Appeal No. 1689 of 2012 (Arising out of SLP (Crl.) No. 1522 of 2012) - - - Dated:- 19-10-2012 - P. Sathasivam And Ranjan Gogoi, JJ. For the Petitioner : Chinmoy Khaladkar, Sanjay V. Kharde and Asha Gopalan Nair For the Respondent : U. U. Lalit and A. Mariarputam, Ashwin C. Thod, Sushil Karanjkar, Ratnakar Singh, K. N. Rai JUDGMENT P. Sathasivam, J. Leave granted. This appeal is directed against the judgment and order dated 10.08.2011 passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 3(1)(i), (2) and (4) of the Maharashtra Control of Organised Crime Act, 1999 (in short 'the MCOCA') and hence the Respondent is alleged to have committed the offences provided hereinabove along with the offence Under Section 302 read with Section 120B of the Indian Penal Code. (f) The Respondent herein preferred an application for bail in Special Case No. 10 of 2010 before the MCOC Special Court, Greater Bombay. By order dated 07.05.2011, the Special Court dismissed the said application. (g) Being aggrieved, the Respondent herein preferred Criminal Bail Application No. 872 of 2011 before the High Court. By impugned order dated 10.08.2011, the High Court accepted the case of the Respondent and granted him bail by imposing certain conditions. (h) Questioning the order granting bail to the Respondent, the State of Maharashtra has filed the present appeal by way of special leave. Heard Mr. Chinmoy Khaladkar, learned Counsel for the Appellant - State and Mr. U.U. Lalit, learned senior Counsel for the Respondent - accused. The only point for consideration in this appeal is whether in the light of the allegations made and materials placed by the prosecution, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a competent court within the preceding period of ten years and that court has taken cognizance of such offence; (e) 'organised crime' means any continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency; (f) 'organised crime syndicate' means a group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulge in activities of organised crime; (g)... 3. Punishment for organised crime - (1) Whoever commits an offence of organised crime shall, (i) if such offence has resulted in the death of any person, be punishable with death or imprisonment for life and shall also be liable to a fine, subject to a minim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no person accused of an offence punishable under this Act shall, if in custody, be released on bail or on his own bond, unless- (a) the Public Prosecutor has been given an opportunity to oppose the application of such release; and (b) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. The very same provisions have been considered by this Court in Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Anr. (2005) 5 SCC 294. In this case, the provisions of MCOCA were invoked against one Telgi who was arrested and proceeded against for alleged commission of offence of printing counterfeit stamps and forgery in various States including the State of Maharashtra. He was figured as Accused No. 23 and one Shabir Sheikh as Accused No. 25. After narrating all the details, this Court posed the following question: 36. Does this statute require that before a person is released on bail, the court, albeit prima facie, must come to the conclusion that he is not guilty of such offence? Is it necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be the intention of the legislature. Section 21(4) of MCOCA, therefore, must be construed reasonably. It must be so construed that the court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in futuro must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence. 46. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. However, while dealing with a special statute like MCOCA having regard to the provisions contained in Sub-section (4) of Section 21 of the Act, the court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials coll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions including the definition of 'abet', 'continuing unlawful activity', 'organised crime' and 'organised crime syndicate'. Keeping the above Objects and Reasons and various principles in mind, statutory provisions of MCOCA, restrictions for the grant of bail and the materials placed by the prosecution, let us consider whether the Respondent has made out a case for bail? Considering the arguments advanced by both the sides, we have meticulously analysed the reasoning of the special Court rejecting the application for bail filed by the Respondent herein and impugned order of the High Court granting him bail. The materials placed indicate that the Respondent is having an association with the overseas base wanted accused Nos. 1 and 2. It also indicates that the Respondent knowingly handled the funds of the syndicate. The statement of one of the witnesses indicates that the Respondent had asked the said witness to collect a sum of ₹ 25 lakhs from the co-accused - Ravi Warerkar, however, the same was not materialized. In addition to the same, there is a statement of co-accused - Mohd. Rafiq that he collected ₹ 15 lakhs from co-accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) of Sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail. Sub-clause (2) also makes it clear that the limitations on granting of bail specified in Clause (b) of Sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force, on granting of bail. The above provision was considered by this Court in Union of India v. Rattan Mallik Alias Habul (2009) 2 SCC 624. In this case, Union of India filed an appeal before this Court challenging the order of the Allahabad High Court suspending the sentence awarded by the trial Court to the Respondent/accused therein for having committed offences under Sections 8/27-A and 8/29 of the NDPS Act and granting him bail. Considering the limitation imposed in Sub-section (1)(b) of Section 37 of the NDPS Act, this Court held thus: 12. It is plain from a bare reading of the non obstante clause in Section 37 of the NDPS Act and Sub-section (2) thereof that the power to grant bail to a person accused of having committed offence under the NDPS Act i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 37 of the NDPS Act and set aside the same with a liberty to decide afresh in the light of the limitations imposed. In the case on hand, we have already extracted the limitation/restrictions imposed in Section 21(4) of MCOCA for granting bail. It is relevant to point out that the materials placed by the prosecution show that one Vijay Shetty and the Respondent are members of Bharat Nepali's organized crime syndicate . It is also the definite stand of the prosecution that the said Bharat Nepali as well as Vijay Shetty, who murdered Farid Tanasha are said to be out of India and are indulging into the organized crime through the members of the syndicate. The materials placed further show that Dattatray Bhakare - a builder, was doing a project at Chembur, Mumbai and some members of the Co-operative Housing Society had some dispute with him, therefore, they had approached Farid Tanasha, who had a criminal background and he also agreed to help those persons in their dispute with the builder. On knowing this, Dattatray Bhakare contacted Bharat Nepali and Vijay Shetty for eliminating Farid Tanasha and for that he allegedly financed a sum of ₹ 90 lakhs which was paid to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent has been working for the wanted accused - Vijay Shetty and he used to receive ill - gotten money for him. We have already extracted Section 21(4) which interdict grant of bail to the accused against whom there are reasonable grounds for believing him to be guilty of offence under MCOCA. We are satisfied that the High Court failed to appreciate the fact that the materials placed against the Respondent consist of the confession made by the co-accused - Mohd. Rafiq which has been recorded Under Section 18 of MCOCA, the statement of the employee of the Respondent which indicates that the Respondent handed over cash to him in the third week of June, 2010 and that the money received by the Respondent and handed over to the main accused were part of the illegal transactions. The act of the Respondent, prima facie, is well within the definition and also the statement of object and reasons of the MCOCA which we have already extracted. The act of the Respondent is of the abetment of the offence enumerated in MCOCA. At any rate, the materials placed by the prosecution show that the Respondent had received ill - gotten money for the wanted accused - Vijay Shetty and, therefore, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses (a) and (b) of Sub-section (4) of Section 21. Apart from giving an opportunity to the prosecutor to oppose the application for such release, the other twin conditions, viz., (i) the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on bail, have to be satisfied. The satisfaction contemplated in Clauses (a) and (b) of Sub-section (4) of Section 21 regarding the accused being not guilty, has to be based on reasonable grounds . Though the expression reasonable grounds has not been defined in the Act, it is presumed that it is something more than prima facie grounds. We reiterate that recording of satisfaction on both the aspects mentioned in Clauses (a) and (b) of Sub-section (4) of Section 21 is sine qua non for granting bail under MCOCA. The analysis of the relevant provisions of the MCOCA, similar provision in the NDPS Act and the principles laid down in both the decisions show that substantial probable cause for believing that the accused is not guilty of the offence for which he is charged must be satisfied. Further, a reasonable beli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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