1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CRIMINAL JURISDICTION APPELLATE CRIMINAL JURISDICTION APPELLATE CRIMINAL JURISDICTION CRIMINAL WRIT PETITION NO. 3169 OF 2005 CRIMINAL WRIT PETITION NO. 3169 OF 2005 CRIMINAL WRIT PETITION NO. 3169 OF 2005 WITH WITH WITH CRIMINAL WRIT PETITION NO. 874 OF 2006 CRIMINAL WRIT PETITION NO. 874 OF 2006 CRIMINAL WRIT PETITION NO. 874 OF 2006 AND AND AND CRIMINAL WRIT PETITION NO. 878 OF 2006 CRIMINAL WRIT PETITION NO. 878 OF 2006 CRIMINAL WRIT PETITION NO. 878 OF 2006 CRIMINAL WRIT PETITION NO. 3169 OF 2005 CRIMINAL WRIT PETITION NO. 3169 OF 2005 CRIMINAL WRIT PETITION NO. 3169 OF 2005 Arun Gulab Gawali .. Petitioner. Versus State of Maharashtra & Ors. .. Respondents. CRIMINAL WRIT PETITION NO. 874 OF 2006 CRIMINAL WRIT PETITION NO. 874 OF 2006 CRIMINAL WRIT PETITION NO. 874 OF 2006 Mohammed Shakil Qureshi .. Petitioner. Versus State of Maharashtra & Ors. .. Respondents. CRIMINAL WRIT PETITION NO. 878 OF 2006 CRIMINAL WRIT PETITION NO. 878 OF 2006 CRIMINAL WRIT PETITION NO. 878 OF 2006 Arun son of Gulab Gawali .. Petitioner. Versus State of Maharashtra & Ors. .. Respondents. Mr. R.M. Agarwal with Mr. B.R. Patil with Mr. I.B. Bagaria for Petitioner. Mr. S.R. Borulkar, P.P. with Mr. D.S. 2 Mhaispurkar, APP for Respondents. CORAM : J. N. PATEL AND CORAM : J. N. PATEL AND CORAM : J. N. PATEL AND SMT. ROSHAN DALVI, JJ. SMT. ROSHAN DALVI, JJ. SMT. ROSHAN DALVI, JJ. DATE : 27th July, 2006. DATE : 27th July, 2006. DATE : 27th July, 2006. ORAL JUDGMENT : (PER J.N. PATEL, J.) ORAL JUDGMENT : (PER J.N. PATEL, J.) ORAL JUDGMENT : (PER J.N. PATEL, J.) . Heard learned counsel for the petitioners and the learned Public Prosecutor for the State. 2. We propose to dispose of all the three writ petitions by common judgment and order as the issues of facts and law which arise for our determination are common and relates to DCB CID Crime No. 135 / 2005 registered against the petitioner Arun Gulab Gawali on the First Information Report lodged by petitioner Mohammed Sakil Qureshi wherein the competent authority i.e. the Joint Commissioner of Police (Crime) Mumbai has passed an order of approval under Section 23 (1) (a) of the Maharashtra Control of Organized Crime Act, 1999 (for short referred to as "MCOCA"). 3. Criminal Writ Petition No. 3169 of 2005 came to be filed by the petitioner Arun Gulab Gawali seeking quashing the FIR / Crime No. 241/05 of Agripada Police Station which has been taken over 3 for investigation by DCB CID Unit III of Mumbai Police and registered as Crime No. 135 of 2005 in which the petitioner along with others is shown as a suspect for having committed offences under sections 384, 386, 506 (2), (2), 34 of IPC read with 120B of IPC. In the said case three persons have already been arrested and the petitioner as well as one Sanjay Girkar are wanted by the police. It appears that during the pendency of the said petition, the Investigating Officer initiated a proposal for application of MCOCA, 1999 and sought prior approval of the Joint Commissioner of Police (Crime) under Section 23 (1) (a) of the said Act which was granted on 14.2.2006 and the same has been challenged by filing Writ Petition No. 878 of 2006 by the petitioner. 4. In so far as Writ Petition No. 874 of 2006 is concerned, it is filed by the complainant Mohammed Shakil Qureshi seeking an order of this Court to quash and set aside the said criminal complaint which is registered against the petitioner and his alleged associates on his behalf along with ancillary reliefs pending hearing of the petition. 5. The background facts which led to filing of these three petitions can be summed up as under :- 5.1 The Complainant Mohammed Shakil Qureshi 4 lodged a FIR with Agripada Police Station on 8.11.2005 which came to be recorded in marathi on a typewriter in the presence of PSI DCB CID Unit III, Mumbai. As per the First Information Report, the offence is alleged to have been committed out of a conspiracy hatched by Arun Gawali and his associates to benefit out of a settlement which was forced upon the complainant Mohammed Shakil Qureshi and one Rajendra Chandulal Doshi in respect of their dispute relating to the disposal of Hotel Pritam International situated at Ambernath of which the complainant and Rajendra Chandulal Doshi were the partners. It appears from the complaint that the henchmen of Arun Gawali called the complainant and his partner to Dagadi Chawl and under threat of dire consequences settled the dispute which they were having relating to the said property by coercing Rajendra Chandulal Doshi, the partner, to pay a sum of Rs. 55 lacs as full and final settlement of the share and claim of the complainant. One of the suspects in the case was being referred to as Bhauji who has been identified as Sadanand Panchal and his associate Sanjay Girkar extorted the sum of Rs. 15 lacs by way of donation to Shiv Shambho Trust by threatening the complainant of dire consequences if he fails to fulfil their demand. After the complainant paid the said amount there was further demand for additional amount and, in all, till the filing of the complaint, the complainant was 5 required to part with a sum of Rs. 18 lacs. Similarly a sum of Rs. 10 lacs came to be extorted from his partner Rajendra Chandulal Doshi by the alleged associates of Arun Gawali and one Shantaram Kanade was also paid a sum of Rs. 5 lacs by the said Rajendra Chandulal Doshi in consideration of bringing about the settlement between the two parties under threat of dire consequences. 5.2. On the complainant lodging a FIR at the Agripada Police Station, cognisable offences came to be registered against Sunil Ghate, Sanjay Girkar, Sadanand Panchal @ Bhavji, Raja Sadwilkar @ Raja and petitioner Arun Gawali. Out of them except Arun Gawali and Sanjay Girkar all others came to be arrested. The petitioner Arun Gawali therefore moved an application for seeking pre-arrest bail in the Court of Sessions for Greater Bombay at Mazgaon which came to be registered as Anticipatory Bail Application No. 297 of 2005. The learned Additional Sessions Judge during hearing of the application of the petitioner for pre-arrest bail, passed an order on 11.11.2005 in which he was required to pass certain strictures against the Investigating Officer and his superiors for their conduct in misquoting the Court’s order. The learned Additional Sessions Judge, therefore, felt it necessary to issue show cause notice to the Investigating Officer, DCP (Crime), and the Joint 6 Commissioner of Police (Crime) Mumbai, Smt. Meera Boravankar. At this stage, the Investigating Officer made a statement before the Additional Sessions Judge that he takes the entire responsibility of making the wrong statement and that his superior officers having nothing to do in the matter and that whatever action in that regard is to be initiated should be only against him and, therefore, the Court by the said order issued notice to the Investigating Officer to show cause. At this stage, the prosecution expressed that they propose to move an application for the transfer of the matter from the Court of HHJ A.M. Thipsay, Additional Sessions Judge, to the Sessions Judge or any other Additional Sessions Judge to whom the Sessions Judge may assign the matter and, therefore, further proceedings were stayed under the said order on the Court being informed by the Investigating Officer that till then the petitioner Arun Gawali who was the applicant will not be arrested. 5.3. The State thereafter filed Misc. Application No. 1344 of 2005 in Anticipatory Bail Application No. 297 of 2005 before the Court of Sessions, Greater Bombay seeking transfer of the application from the file of HHJ A.M. Thipsay to himself or to assign it to any other Additional Sessions Judge. The learned Sessions Judge Shri R.R. Vachha vide his order dated 28.11.2005 7 rejected the application and thereafter the Anticipatory Bail Application was again taken up for hearing before the same Court i.e. HHJ Shri A.M. Thipsay and by order dated 3.12.2005 the Additional Sessions Judge passed an order in favour of the petitioner observing that in the event of his arrest in Crime No. 241 / 05 of Agripada Police Station (Crime No. 135 of 2005 of DCB CID Unit III), the applicant be released on bail in the sum of Rs. 15000/- with one surety in like amount, or cash deposit of Rs. 15,000/- in lieu of surety on certain conditions. This order of the learned Additional Sessions Judge came to be challenged by the State before this Court in Criminal Application No. 8047 of 2005. The learned Single Judge of this Court vide its order dated 21.2.2006 without adhering to the merits of the matter found it just, fair and proper to place the matter before another Additional Sessions Judge to be assigned by the Principal Judge by quashing and setting aside the impugned order after incorporating the necessary caution that the order should not be misconstrued so as to mean that this Court has passed any strictures against the learned Additional Sessions Judge whose order granting anticipatory bail to the petitioner was challenged before it and even in respect of the order passed by the Sessions Judge rejecting the application to transfer the matter from the file of Shri A.M. Thipsay and expressed that the order has 8 been purely quashed and set aside on the ground that the impugned order does not reflect that the learned Additional Sessions Judge has decided it after taking into consideration the material before it and, therefore, the application deserves to be heard afresh. This order passed by the learned Single Judge of this Court was sought to be challenged by the petitioner by filing Special Leave Petition Appeal (Criminal) No. 1223/2006 to the Hon’ble Supreme Court but subsequently the same came to be withdrawn on the ground that the application for anticipatory bail is being heard and, therefore, the petitioner does not wish to press the said SLP and seeks withdrawal thereof as withdrawn. 6. During the intervening period series of events have taken place like an application came to be filed by the complainant Mohammed Shakil Qureshi to the Commissioner of Police, Mumbai on 12.11.2005 requesting him to drop further proceedings in FIR 241 dated 8.11.2005 on the ground that he was forced by the police to lodge FIR 241 dated 8.11.2005 in his name at Agripada Police Station and he does not want to pursue the FIR as he does not agree with the contents of FIR. In support of his application the complainant has also sworn an affidavit. In addition to informing the Commissioner of Police, the complainant also addressed a communication to the Metropolitan Magistrate, 46th Court, Mazgaon, 9 Mumbai on 14.11.2005 which was registered as 26/Miscellaneous of 2005 making the same grievance i.e. the request to drop further proceedings in FIR 241 dated 8.11.2005 along with an affidavit. On 17.11.2005 the learned Additional Chief Metropolitan Magistrate, 46th Court Mazgaon, Mumbai passed an order expressing his inability to take cognizance of such an application for the reason that no relief has been sought from the Court and, therefore, the application cannot be entertained in absence of any specific prayer and the application came to be filed. Aggrieved by this, the complainant moved this Court by filing a writ petition i.e. Writ Petition No. 2906 of 2005 which came to be disposed of by Division Bench of this Court vide its order dated 21.12.2005 wherein the Division Bench observed as under : "CORAM : R.M.S. KHANDEPARKAR & R.S. MOHITE, JJ. DATED: 21st DECEMBER, 2005. P.C. 1. The learned advocate for the petitioners states that consequent to the filing of this petition, the police protection which was given to the petitioners has been withdrawn 10 and as far as the relief in that regard is concerned, the petitioners do not press for the same. 2. As regards the other grievance in the petition, liberty to the petitioners to file necessary complaint in that regard to the police commissioner and if such complaint is filed, the police commissioner shall look into the matter and decide the same in accordance with the provisions of law as expeditiously as possible. 3. The learned APP takes note of this order. 4. The petition accordingly stands disposed of." 7. It also appears from the records that the complainant approached the Human Rights Commission on 11.11.2005 seeking initiation of enquiry in the matter of dropping the proceedings in FIR No. 241 dated 8.11.2005 as he did not get any relief as sought from the office of the Commissioner of Police as well as the Additional Chief Metropolitan Magistrate, 46th Court, Mazgaon, Mumbai. The complainant’s wife Aisha Mohd. Shakeel also made a grievance that her husband Mohammed Shakil Qureshi 11 has been detained by the DCB CID Unit III Office of N.M. Joshi Marg on 7.11.2005 and filed an application on 8.11.2005 before the Chief Metropolitan Magistrate, 37th Court at Esplanade which was registered as Misc. Appln. No. 223/M/05. On 9.11.2005 on the request of the Advocate, the learned CMM filed the application. 8. The wife of the complainant also approached the State Human Rights Commission with the grievance that her husband is in illegal detention of the police and the harassment to which he was put by the police on the pretext of interrogation followed by a communication dated 11.11.2005 made to the Chair-Person of the State Human Rights Commission State of Maharashtra, through her Advocate Mr. Parmar. 9. It appears from the record that in the meantime on 18.4.2006 the application for anticipatory bail of the petitioner Arun Gawali was taken up by HHJ Shri S.P. Davare, Additional Sessions Judge wherein a statement came to be made by the learned counsel for the applicant that the applicant has moved the High Court for quashing the FIR under MCOC Act, 1999 so also the complainant has filed Writ Petition No. 874 of 2006 for quashing the original complaint being FIR 241 OF 2005 and the Additional Sessions Judge was informed that the 12 matter is sub judice before the Honourable High Court, the decision of which will also reflect on the jurisdiction of the learned Additional Sessions Judge in entertaining an application for pre-arrest bail. Therefore the learned Additional Sessions Judge adjourned the matter without passing any order. This is how the petitioner i.e. Arun Gawali and the complainant Mohammed Qureshi have approached this Court by filing these petitions. 10. On behalf of the Respondents affidavits of Mr. Ratansingh K. Rathod, Assistant Commissioner of Police, who has been appointed as Investigating Officer of the case and Smt. Meera Borwankar, Joint Commissioner of Police, who is the Competent Authority for granting prior approval under Section 23 (1) of the MCOC Act have been filed. It is the case of the Respondents that on the basis of complaint filed by the Petitioner Mohammed Shakil Qureshi, offences came to be registered with the Agripada Police Station vide Crime No. 135 of 2005 under Section 384, 386, 506 (ii) read with 34 and 120B of Indian Penal Code. As the complaint disclosed that the complainant had made grievances against the alleged associates of Arun Gulab Gawali of threatening the complainant with dire consequences in order to extort huge sum of money for Shiv Shambho Trust conducted by Arun Gawali in 13 consideration of having settled the dispute with his partner and coerced the complainant to pay a sum of Rs. 15 lacs and subsequently an additional sum of Rs. 3 lacs and were insisting that he should pay a sum of at least Rs. 25 lacs, the investigating agency was satisfied that the nature of the complaint and the offences registered pursuant to the same would also attract MCOC Act as the alleged associates of Arun Gawali, who heads an organised crime syndicate from Dagadi Chawl, are involved. The investigating officer found that there are more than 10 offences like murder, extortion and so on committed by the members of the organised crime syndicate which are in the nature of organised crime as defined in section 2 (d) of the MCOC Act, 1999 and that the said organised crime syndicate are continuing their unlawful activities as defined in clause (d) of sub-section (1) of Section 2, a proposal was initiated and forwarded to the competent authority for prior approval and the Joint Commissioner of Police, Crime Branch, Mumbai, who is the competent authority in the matter was satisfied after examining the case with a view as to whether provisions of MCOC Act are applicable, the respondent competent authority granted approval as required after having been subjectively satisfied that the petitioner and his alleged associates are members of organised crime syndicate and were indulging in unlawful activities as well as there 14 was separate material corroborating their involvement in the said offences. The Respondents have specifically denied all the allegations made by the petitioner i.e. Arun Gulab Gawali and the complainant Mohammed Shakil Qureshi. It is also denied that the Respondents have applied provisions of the MCOC Act against the persons found involved in the commission of the offence which has been reported by the complainant malafide and with the biased mind as the petitioner Arun Gulab Gawali was successful in getting an order of pre-arrest bail in his favour. It is further denied that the action is initiated with any political motive as attributed by the petitioner and it is submitted that the petitioner having failed to make out any case for grant of any relief to him, extra-ordinary jurisdiction vested in this Court under Article 226 of the Constitution of India should not be exercised and the petitions deserve to be dismissed. 11. The Respondents have also expressed the apprehension that if any interim relief of the nature sought by the petitioner is granted, it will adversely affect the progress in the investigation. 12. It is the case of the Respondents that the very fact that the complainant has resiled from the fact that he has not made the FIR on the basis of which offences came to be registered and the 15 investigation in the case commenced, goes to show that the complainant has come with all these grievances due to the threat to his life given by the alleged associates of petitioner Arun Gulab Gawali and, therefore, the investigating agency should be given a free hand to thoroughly investigate the case and submit their final report. 13. It is submitted on behalf of the Respondents that the persons wanted in this case, namely, the petitioner Arun Gawali and one of his alleged associates, are required to be arrested in order to facilitate the investigation of the case and that they have been able to collect sufficient material from the investigation done so far which go to show the complicity of the petitioner and his alleged associates relating to the transaction of which complaint has been lodged by the complainant Mohammed Shakil Qureshi. It is submitted that even the partner of the complainant has approached the Crime Branch during the course of the enquiry by the officers and, therefore, the alleged associates of the petitioner threatened the complainant and warned him not to disclose about settlement of the dispute in respect of Hotel Pritam International to the police. It is the contention of the Respondents that the complainant has initially lodged the complaint at Bhoiwada Police Station which came to be registered as N.C. Complaint on 27.10.2005 and 16 thereafter apprehending danger to the life of the complainant and his family members he has lodged the aforesaid FIR with the Agripada Police Station which was transferred to DCB CID and was numbered as Crime No. 135/05 and, therefore, it is submitted that the investigation is being carried on in accordance with law and any interference by the Court would scuttle the investigation and that the authorities having considered all the material which has been collected so far and after having subjectively satisfied came to the conclusion that the case in hand requires invoking the provisions of MCOC Act for the purpose of facilitating the investigation and, therefore, it cannot be said that the order dated 14.4.2006 giving prior approval for applying provisions of MCOC Act is illegal and if at all these contentions are required to be considered, the same can be examined by the learned Special Judge when the petitioner and his alleged associates are put on trial and it is only after appreciating the evidence, the learned Special Judge can look into these allegations at appropriate stage and the said cannot be a ground to quash the said order. Hence all the three petitions deserve to be dismissed. 14. We have heard Mr. R.M. Agarwal who is assisted by a team of advocates representing both the petitioners and Mr. Borulkar, the learned Public Prosecutor in the matter and examined the 17 record and proceedings placed before us including part of the case diary relating to statement of witnesses recorded by the investigating agency in the course of investigation in Crime NO. 241/05. 15. Mr. Agarwal submitted that the very foundation of the case being baseless in view of the fact that the complainant Mohammed Shakil Qureshi has himself filed Writ Petition No. 874 of 2006 denying the fact that he has lodged any First Information Report either with Agripada Police Station or DCB CID or made any grievance in the matter to the police and seeks an order of this Court to quash and set aside Crime no. 241/05 dated 8.11.2005 registered by Agripada Police Station for the offences punishable under Section 384, 386, 506 (ii) read with 34 and 120 B of IPC on the purported complaint of the petitioner, no case survives for any investigation. 16. Mr. Agarwal further submitted that the basis on which the competent authority has granted prior approval itself shows that the grant of approval is malafide and actuated with political motive as the petitioner Arun Gawali is a sitting MLA, whose popularity and rise in the political arena is not liked by the ruling party and, therefore, the State Government is interested in getting him arrested, placing him in custody by 18 applying MCOC Act without there being any justification. In so far as the cases which are relied upon by the Joint Commissioner of Crime in about 7 cases which are prior to the coming into force of the MCOC Act, the petitioner has not been found guilty and stands acquitted. In so far as the offences subsequent to the coming into force of the Act are concerned, the petitioner is either acquitted or released on bail and they do not indicate that those offences would attract the provisions of MCOC Act otherwise there was no reason why the respondents would not have applied MCOC Act in those cases against the petitioner. It is submitted that all the cases which are pending are foisted on the petitioner Arun Gulab Gawali and his alleged associates are of trivial nature and do not fall within the definition of ’continuing unlawful activities of organised crime’ as defined under MCOC Act. Mr. Agarwal, the learned counsel appearing for the petitioners, submitted that the investigating agency is adopting a procedure which is not permissible under the law in order to collect material against the petitioner Arun Gulab Gawali and his alleged associates in the form of confession of accused arrested by the police who also pressurised them to become approvers. It is submitted by Mr. Agarwal that the various orders passed by the Court of Sessions expose the malafides of the investigating agency in implicating the 19 petitioner and that their decision to