1 WP 2687.08.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE JURISDICTION CRIMINAL WRIT PETITION NO.2687 OF 2008 Ashraf @ Tatya Gulam Rasool Patel. ... Petitioner. V/s. The State of Maharashtra. ... Respondent. WITH CRIMINAL APPLICATION NO. 4620 OF 2008 Manjoor Amir Malvi. .. Applicant. V/s. The State of Maharashtra. ... Respondent. Mr. A.Y. Sakhare, Sr. Counsel a/w. Ms. Radhika Thankar i/b. Mr. P.M. Havnur for the Petitioner in WP 2687/08. Mr. P.R. Arjunwadkar for the Applicant in Criminal Application No.4620/08. Mr. Rajesh More, APP for the State. CORAM : K.U. CHANDIWAL, J. DATED : 12th OCTOBER 2011. P.C. :- Heard. Rule. Rule made returnable forthwith. 2. In Criminal Application No.4620 of 2008, time was granted till 19th January 2009, to surrender. 2 WP 2687.08.sxw 3. In the present proceedings, the orders of cancellation of bail are stayed by order dated 7.9.2006. 4. So far as Writ Petitioner in Writ Petition No.2687 of 2008 Ashraf is concerned, the authorities have referred the Crime No.104 of 2005 dated 7.7.2005 for an offence punishable under Section 143, 147, 148, 324, 504, 506 r/w. 34 of I.P.C. There was offence committed allegedly by the said Applicant being Crime No.215 of 2005 of Kashimira Police Station. In Crime No.104 of 2005, the learned J.M.F.C. on 11.7.2005 released said Applicant on bail. The proposal for invoking provisions of Maharashtra Control of Organized Crimes Act, 1999 (for short MCOC Act) were initiated on 29.8.2005. 5. On 13th October 2005, prosecution filed application for cancellation of bail. The learned Judge dealing with application did not accede to the prosecution. Consequently, the State came to this Court in Criminal Application Nos.8590 of 2005, 790 of 2006, 799 of 2006, 800 of 2006 and 801 of 2006 against the Applicant Ashraf @ Tata Gulam Rasool Patel and Ors. By order dated 7th September 2006, this Court set 3 WP 2687.08.sxw aside the orders dated 13th October 2005 passed by the learned Special Judge (MCOC Act), Thane in Criminal Misc. Application No.147 of 2005 and directed the learned Judge to reconsider all the aspects and pass appropriate order. All the contentions of both sides were kept open. 6. Thereafter, the learned Judge, as stated earlier, passed orders terminating the bail granted to the Writ Petitioner Ashraf and also to the Applicant Malvi (Criminal Application No. 4620 of 2008). 7. Learned Senior Counsel for the Applicants has canvassed that : (a) custodial interrogation is not necessary; (b) the cases prior to applicability of MCOC Act against the Applicant would not be available to be entertained; (c) after six years, there is no reason to put the Applicant in custody as nothing is to be investigated or recovered from them; (d) there is no application of mind in the sanction by the learned Inspector General dated 29.8.2005; and (e) acquitted cases cannot be made basis of MCOC Act. 8. Mr. Arjunwadkar, learned Counsel representing the 4 WP 2687.08.sxw Applicant Malvi, in addition submits, there is nothing to demonstrate that the Applicant is a member of organized gang or any syndicate to arrest him or terminate the bail already granted. 9. The learned APP while opposing the contentions raised by the Writ Petitioner and the Applicant, read contents of the affidavit of Assistant Superintendent of Police attached to Mira Road Division, Mira Road. He has also placed reliance in the Judgment of this Court in the case of Sarang Arvind Goswamy v/s. State of Maharashtra (2005(2) Bom.C.R. (Cri.) 230). 10. The list of cases pending against the Writ Petitioner Ashraf are high-lighted in the order by the learned Special Judge which indicate that there are more than 31 cases which were slapped against him, out out them, he was acquitted in 14 cases while 10/11 cases are pending, 1 case is still under investigation. There is no controversy that during pendency of Crime No.104 of 2005 another Crime bearing Case No.215 of 2005 was registered against the Writ Petitioner at Kashimira Police Station. The conduct of the Accused/Applicant, in the 5 WP 2687.08.sxw several cases illustrated that he has become a threat to the area in the vicinity of Kashimira Police Station or Bhayander Police Station as 18 cases were registered in the said Police Station. 11. The learned Special Judge has, in categorical terms illustrated that owing to applicability of MCOC Act and there being already two charge-sheet filed against the Writ Petitioner or the Applicant, he was invoking provisions of MCOC Act to terminate the bail granted by the learned J.M.F.C. It is pertinent, the learned Judge while canceling the bail did not adhere to inform about the challenge to applicability of the very Act or entitlement of the Applicants to be released on bail. All these aspects are kept open by the learned Special Judge. 12. The contentions that custodial interrogation is not necessary is illusory in itself as the series of cases pending against the Writ Petitioner or the Applicant involve investigation as in a syndicate and organized manner the offence of alleged land grabbing are initiated by these persons. 6 WP 2687.08.sxw 13. The pendency of six years after the orders of this Court, will not change colour and complexion of the matter as it was the successful protraction initiated by the Writ Petitioner or the Applicant in getting the fruits of the sanction of 2005 to be put into letter and spirit. There cannot be any contribution of malice on the part of prosecution to ensure that it has adopted dilatory tactics and ensued that Writ Petitioner or the Applicant is detained in custody. Considering these aspects, the contentions that after six years, nothing more is to be investigated does not apply to reason. 14. The contentions that nothing is there to show member of an organized gang or syndicate is again repel, if the several offences registered against the Writ Petitioner as also against the Applicant are perused. At Bhayander Police Station the Applicant Malvi is also an accused in Crime No.I-27 of 1981 under Sections 147 to 149, 323, 324 of I.P.C., in Crime No.I-317 of 1981 under Section 147, 148, 326 of I.P.C., in Crime No.I-244 of 1983 under Section 147 to 149, 336, 337, 324 of I.P.C., in Crime No.I-69 of 1995 under Section 307, 395, 7 WP 2687.08.sxw 363, 342, 452, 506, 507 of I.P.C. At Kashimira Police Station, the Applicant Malvi is a co-accused in Crime No.I-43 of 1991, Crime No.I-141 of 2003, Crime No. 104 of 2005. 15. Needless to indicate, in above referred crimes, the Writ Petitioner Ashraf @ Tata and the Applicant Malvi are involved. They are also co-accused in connection with C.R. No.I-43 of 1991 for an offence under Sections 307, 341, 147 to 149, 324, 336, 337, 427 of I.P.C. These Applicants are also involved in the Crime No.I-141 of 2003 and earlier stated in Crime No.I-104 of 2005. Thus, there are two charge-sheet pending against the Writ Petitioner and the Applicant Malvi. The sanction to which challenge was made to non application of mind does not surface so as series of offences slapped against the Writ Petitioner or the Applicant repels against their individual contentions. In the set of above facts, I do not see any error on the part of Special Judge in cancelling bail granted to the accused persons dated 11.7.2007 in Crime No. I-104 of 2005 by the learned J.M.F.C.-II, Joint Court at Thane. The Applicants are bound to be taken in custody for newly registered offence under M.C.O.C. Act. The applicability of MCOC Act has also been considered by the learned Special 8 WP 2687.08.sxw Judge. The Writ Petition and Application lacks merit. Dismissed. 16. All the points between the parties are kept open. Rule discharged. The prayer for grant of extension of interim protection is rejected. (K.U. CHANDIWAL,J.)