1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3499 OF 2008 Shri Vijay Gulab Ahir ..... Applicant. V/s The State of Maharashtra at the instance of D.C.B. C.I.D. Mumbai vide their C.R. No.52 of 2008 Shivajipath Police Station C.R. No.72 of 2008. ........ Respondent ------ Mr. Adhik Shirodkar, Senior Advocate with Mr. Rajendra Shirodkar with Mr. Archit Sakhalkar i/b Mr. Sandeep Passbola & Rahul Arote for the applicant. Mr. S.R. Borulkar, Public Prosecutor with Mr. J.P. Yagnik, APP for the State. ------ CORAM : V.M. KANADE, J. DATE : 3rd February, 2009 P.C:- 1. Heard. 2. The petitioner, initially, had filed Criminal Writ Petition No.1465 of 2008. The said Writ Petition was allowed to be converted into criminal application and it was renumbered as Criminal Application No.3499 of 2008. 2 3. Brief facts are as under:- 4. The complainant Nandkumar Sadashiv Naik is a Builider and Developer by profession and partner of M/s Chaitanya Developers. He lodged a complaint in the office of D.C.B.C.I.D which was registered vide C.R. No.52 of 2008 for the offence punishable under sections 452, 386, 387, 323, 427, 120-B of the Indian Penal Code read with sections 2, 35 and 27 of the Arms Act against the petitioner and others. This FIR was also registered with Shivaji Park Police Station vide C.R.No. 72 of 2008. The petitioner was arrested on 26/03/2008 and was remanded to police custody upto 08/04/2008 on which day he was remanded to judicial custody. On 17/04/2008, the petitioner and other co-accused Ajit Chandrakant Rane were ordered to be released on bail of Rs 25,000/- each on execution of personal bond and surety in the like amount. The petitioner, thereafter, was released from custody. 5. The Investigating Officer submitted a proposal on 24/04/2008 for invoking provisions of M.C.O.C. Act 1999. The Joint Commissioner of Police (Crime), Greater Mumbai Shri Rakesh Maria 3 granted prior approval on 29/04/2008 under section 23(1)(a) of the M.C.O.C. Act, 1999. Thereafter, charges under sections 3(1)(2), 3(2), 3(4) and 3(5) of the M.C.O.C. Act were added to the said C.R. No.52 of 2008 registered with D.C.B.C.I.D. 6. The petitioner and co-accused Ajit Chandrakant Rane were shown to be rearrested on 29/4/2008 and were produced before the Special Court for remand and the remand was granted till 14/05/2008 which was extended till 06/06/2008 and later on the petitioner was remanded to judicial custody. 7. The petitioner filed Misc. Application No.202 of 2008 which was allowed to be converted into Bail Application No.21 of 2008 inter alia on the ground that his rearrest without obtaining any orders of cancellation of bail through Court was in violation of his personal rights and liberty and, therefore, he should be released on bail. This application was rejected by the Special Court on 26/06/2008. 8 Shri Adhik Shirodkar the learned Senior Counsel appearing on behalf of the petitioner submitted firstly that there was no material on record to indicate that the applicant was involved in continuous 4 unlawful activity as a member of an organized crime syndicate within 10 years before preceding the approval which was granted and, therefore, provisions of M.C.O.C. Act were not applicable. Secondly, it was submitted that there was no material on record even in respect of the last case which was registered against the petitioner showing his involvement as a member of the organized crime syndicate and, therefore, the bar of section 21(4) of the M.C.O.C. Act was not applicable to the present petitioner and on that ground he could not have been rearrested. Thirdly, it was submitted that the petitioner having been released on bail in respect of C.R which was registered with D.C.B.C.I.D and for the same C.R and for the same offence since the provisions of M.C.O.C. Act were made applicable, it was incumbent upon the Investigating Officer to have first applied for cancellation of bail before rearresting the petitioner. Lastly, it was submitted that even if it was assumed, without admitting, that the petitioner was a member of the organized crime syndicate, even in respect of the head of the organized crime syndicate Arun Gawali, the cases which were referred to in the approval granted by the Additional Commissioner of Police and the sanction granted by the Competent Authority, did not indicate that there were more than one case in which Arun Gawali was involved in continuous unlawful activity since 5 the other three offences for which charge-sheet was filed were the offences where there was no question of any pecuniary gain or advantage which was one of the basic requirements for making the provisions of M.C.O.C. Act applicable. In support of the said submissions, he relied upon the following judgments:- Sr.Nos NAME OF PARTIES CITATIONS 1. Deepak Misal V/s State of Maharashtra Criminal Application No.4400 of 2004. 2. Vijay Walekar & 2 Ors Vs. State of Maharashtra Criminal Application No.152 of 2006. 3. Sambhaji Kudale V/s. State of Maharashtra Criminal Application No. 539 of 2008. 4. Appa Londhe V/s. State of Maharashtra 2006 ALL MR (Cri) 2804. 5. Jaisingh Yadav V/s State of Maharashtra 2003 ALL MR (Cri) 1506. 6. Sherbahadur Khan V/s State of Maharashtra 2007 ALL MR (Cri) 1 7. State of Maharashtra V/s Lalit Nagpal (S.C.) 2007 (4) SCC 171 8. Sidharth Janmejay V/s. State of Maharashtra 2005 ALL MR (Cri) 460 9. State of Maharashtra V/s Bharat Gavhane 2006 ALL MR (Cri) 2895 10. Ataulla V/s. State of Karnataka (KAR.) 1998 Cri.L.J. 913 (KAR) 11. B.S. Rawat V/s. Leidomann Heinrich & Anr. (BOM) 1991 Cri.L.J. 552 (BOM) 12. Prhlad Singh Bhati V/s N.C.T. Delhi (S.C.) 2001 Cri.L.J. 1730 (S.C.) 13. Rama Pati Yadav V/s State of U.P. (ALL) 2002 Cri.L.J. 3646 (ALL) 6 14. Kalyan Singh V/s. State of M.P. (M.P.) 1998 Cri. L.J. 512 (M.P.) 15. Rajnikant Patel V/s. NCB Delhi (S.C.) 1990 Cri.L.J. 62 (S.C.) 16. Sarang Goswamy V/s. State of Maharashtra 2005 ALL MR (Cri) 1954. 17. Gurdev Singh V/s. State of Bihar (S.C.) 2000 Cri.L.J. 4686 (S.C.) 18. Ramdoss and another V/s. State of Tamil Nadu (T.N.) 1993 Cri.L.J. 2147 (T.N.) 19. Gokul Das V/s. State of Assam (GAUHATI) 1981 Cri.L.J. 229 (GAU) 9. Mr. Borulkar, the learned Public Prosecutor appearing on behalf of the State, on the other hand, submitted firstly that on conjoint reading of the provisions of section 2(d), (e) and (f), it was apparent that it was not necessary that more than two charge-sheets should be filed against a person who had acted on behalf of the organized crime syndicate, if there was material to indicate that more than two cases were filed against the organized crime syndicate. Secondly, he submitted that there was sufficient material against the present petitioner so far as the last case which was registered against him was concerned for which the provisions of the M.C.O.C. Act were later on made applicable. Thirdly, he submitted that if during the course of investigation if it is found that the accused was involved in more serious offence then, in that case, it was not necessary to seek cancellation of bail granted for lesser offence and he could be 7 rearrested for more serious offence which he has committed. In support of the said submissions, he relied upon the following judgments:- Sr.No NAME OF PARTIES CITATIONS 1. Asif Khan Bashir Khan V/s The State of Maharashtra Judgment dated 16/10/2007 in Criminal Appeal No.749 of 2007 (Coram: R.M.S. Khandeparkar & Smt. V.K. Tahilramani, JJ) 2. Mr. Bharat Shantilal Shah V/s State of Maharashtra 2003 ALL MR (Cri.) 1061. 3. Jaisingh s/o Asharfilal Yadav & Ors. V/s State of Maharashtra. 2003(3) Mh.L.J. 866 4. Appa @ Parakash Haribhau Londhe V/s State of Maharashtra 2006 ALL MR (Cri)2804 5. Prahlad Singh Bhati V/s N.C.T. Delhi & Anr. AIR 2001 SC 1444 10. I have heard both the Counsel at length and I have given my anxious consideration to the submissions made by the Counsel appearing on behalf of either side. 11. In the present case, there is no dispute regarding chronology of 8 events and it is a matter of record that, initially, C.R was registered by the D.C.B.C.I.D vide C.R. No.52 of 2008 and the petitioner, after he was remanded to police custody, was transferred to judicial custody and, thereafter, he was released on bail on 17/04/2008. After he was released on bail, a proposal was sent on 24/04/2008 for invoking the provisions of the M.C.O.C. Act. Prior approval was granted by the Joint Commissioner of Police (Crime), Greater Mumbai on 29/04/2008. Thereafter, charges under M.C.O.C. Act were added to the same C.R. No.52 of 2008 which was registered with D.C.B.C.I.D and he was rearrested and produced before the Special Court for the remand on the same day i.e on 29/04/2008 and he was remanded to police custody till 06/06/2008. 12. In view of the provisions of section 21(4), once the provisions of the said Act are made applicable, restriction is imposed on the court over and above the limitations which are laid down under the Code of Criminal Procedure or any other law for the time being in force. In view of the provisions of section 21(4)(a), the Public Prosecutor has to be given an opportunity to oppose the application and thereafter in view of the provisions of section 21(4)(b), the Court has to be satisfied that there are reasonable grounds for believing that he is not 9 guilty of such offence and that he is not likely to commit any offence while on bail. In view of the restrictions imposed by the Act, while considering the application for bail, it will have to be examined whether provisions of the M.C.O.C. Act are attracted in the present case against the petitioner. In order to appreciate the rival contentions, it will be necessary to examine the provisions of the M.C.O.C. Act. Section 2(d), (e) and (f) of the M.C.O.C. Act read as under:- 2. Definitions. (1) In this Act, unless the context otherwise requires,- (a) .................. (b)................... (c)................... (d) “continuing unlawful activity” means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, undertaken 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) “organized crime” means any continuing 10 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 indulging in activities of organised crime;” Upon the conjoint reading of the aforesaid provisions, particularly section 2(d), in order to invoke the provisions of the M.C.O.C. Act, it has to be shown that the accused has undertaken continuous unlawful activity which is : (i) prohibited by law; (ii) a cognizable offence and (iii) undertaken 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 the competent court within the preceding period of ten years and that Court has taken cognizance of such offence. The first and foremost thing, therefore, which has to be established by the Investigating Officer is to show that there is some material on record to indicate 11 that the accused has been a member of an organised crime syndicate or has acted on behalf of such members. If the Investigating Officer is not in a position to show that there is any material to indicate that the petitioner has acted as a member of the organised crime syndicate or has acted on behalf of such syndicate, provisions of the said Act would not be attracted. In view of the aforesaid legal position, it will have to be seen whether there is any material on record against the present petitioner that he was a member of the organised crime syndicate. 13. In the present case, two charge-sheets have been filed against the present petitioner; one in the year 1993 and other in the year 1998. So far as the charge-sheet of 1993 and 1998 are concerned, both these charge-sheets, admittedly, were filed in respect of the offences which were not relatable to the organised crime syndicate and were independent offences which were registered against the petitioner. Secondly, in four charge-sheets which are referred to in the approval also, admittedly, the petitioner is not the accused alongwith the head of the organized crime syndicate Arun Gawali and in the said four cases also, admittedly, the petitioner has not acted as a member of the organized crime syndicate. That being the factual position, there is no material on record to indicate that the petitioner 12 at any point of time 10 years before preceding the said approval which was granted, was involved in “continuing” unlawful activity as a member of an organised crime syndicate or on behalf of such syndicate. As stated hereinabove, acting as a member of the organised crime syndicate or acting on behalf of the organised crime syndicate is a sine qua non for the purpose of invoking the provisions of the M.C.O.C. Act. On this ground alone, in my view, the petitioner is entitled to be released on bail since the primary requirement as laid down under section 2(d) of the Act has not been established by the Investigating Officer at this stage. 14. Even if the submission of the learned Public Prosecutor Shri Borulkar is accepted that a person who has acted on behalf of the organised crime syndicate or is a member of the organised crime syndicate against whom more than one charge-sheet has been filed, against such person provisions of the M.C.O.C. Act can be invoked, even then, in such a case, it has to be established that the accused is a member of the organised crime syndicate or has acted on their behalf. So far as the present C.R is concerned, the only material against the present petitioner is in the form of FIR lodged by Shri Nandkumar Sadashiv Naik, the complianant, and the confessional statement of co- 13 accused. If the statement of the complainant is perused, it can be seen that he has alleged that he had received a call from the said area and then he states that the co-accused had introduced the said person as Vijaybhau Ahir. Surprisingly, no test identification parade has been held by the Investigating Officer to establish the identity of the person who was introduced as Vijaybhau Ahir. That being the position, apart from the said statement of the complainant that one person was introduced to him as Vijaybhau Ahir – the petitioner herein, there is no other material to show that the petitioner was involved in the organised crime syndicate headed by Arun Gawali. 15. It is a well settled position in law that merely because a person is a family member of the head of the organised crime syndicate that by itself is not sufficient to prove that he is a member of the organised crime syndicate or has acted on behalf of the organised crime syndicate. Apart from this statement of the complainant, the only other material which is on record is the confessional statement of the co-accused. The said co-accused has now been made an approver in the said case. That being the position, the confessional statement of the co-accused alone is not sufficient for the purpose of proving that the petitioner is the member of the organised crime syndicate. Even 14 otherwise, such type of evidence is considered as weak type of evidence and without corroboration the courts are reluctant to rely on such type of evidence for convicting the accused. Therefore, either way, there is no material on record to show that the petitioner had acted as a member of the organized crime syndicate or had acted on behalf of the syndicate. In my view, there are reasonable grounds for coming to the conclusion that he is not guilty of the offence punishable under section 3 of the M.C.O.C. Act. Once it is held that the provisions of M.C.O.C. Act are not applicable, bar imposed under section 21(4) of the M.C.O.C. Act for grant of bail does not exist and, therefore, the petitioner has made out a case for grant of bail. Since the petitioner has already made out a case for grant of bail on the first two submissions made by the learned Senior Counsel appearing on behalf of the petitioner, in my view, it is not necessary to refer to other submissions which are made by the learned Senior Counsel appearing on behalf of the petitioner. 16. Both the Counsel for the petitioner and the prosecution have relied on number of judgments of the Apex Court and this Court. The position in law is quite well settled and, therefore, I have not referred to those judgments which are cited by either side on this point. 15 17. In the result, the following order is passed :- O R D E R Application is allowed. Applicant be released on bail in the sum of Rs 50,000/- with one or two sureties in the like amount subject to following conditions being imposed:- (i) Applicant shall report to the concerned Police Station twice in a week on Monday and Saturday between 11.00 a.m. and 2.00 p.m for a period of six months. (ii) Applicant shall not leave the jurisdiction of City of Mumbai without seeking prior permission from the Court. (iii) Applicant shall not threaten the witnesses or tamper with the evidence. (iv) If any complaint is received against the applicant, his bail shall be cancelled. Application is disposed of. (V.M. KANADE, J.)