Bombay High Court
Deepak Madhavrao Mankar vs The State Of Maharashtra on 22 October, 2019
Bench: Ranjit More, N. J. Jamadar
WP-1670 & 3741/19
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 1670 OF 2019
Deepak Madhavrao Mankar. ..Petitioner.
Versus
State of Maharashtra. ..Respondent.
WITH
WRIT PETITION NO. 3741 OF 2019
Sudhir Dattatraya Sutar. ..Petitioner.
Versus
State of Maharashtra. ..Respondent.
Mr. Abad Ponda, Praful Soni, Ajinkya Udane, Sudhir Sutar i/b
Prashant Patil for the Petitioners.
Mr Satyavrat Joshi i/b Nitesh Mohite for the Applicant in APPW No.
3998 of 2019 and APPW No.445 of 2019.
Mr. A. D. Kiamkedkar, APP for the Respondent-State.
Coram : RANJIT MORE &
N. J. JAMADAR, JJ.
Order reserved : September 5, 2019
Ordered pronounced : October 22, 2019
P. C. :
1. By these petitions filed under Article 226 of
Constitution of India read with section 482 of the Code of Criminal Procedure, 1973, the Petitioners are seeking following reliefs :
"(a) Strike down Section 23(1)(a) of the MCOCA patilsr 1/ 21 ::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:03:05 ::: WP-1670 & 3741/19 being absolutely arbitrary, unguided, uncanalized and thus, unconstitutional being violate of Articles 14, 19 and 21 of the Constitution of India; or to save it from unconstitutionality to read down, delineate the ambit and scope of the words 'prior approval' occurring in Section 23(1)(a) of MCOCA so as to ensure that the same is not 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 and declare the twin conditions imposed for release on bail, as encapsulated therein, to be unconstitutional and violative of Article 14 and 21 of the Constitution of India."
2. Apart from challenge to the constitutional validity of aforesaid provisions, the Petitioners in above writ petitions have also prayed for quashing and setting aside of the prior approval order dated 9th August 2018 issued under section 23(1)(a) of the MCOCA and to quash and set aside the proceedings invoking the provisions of Maharashtra Control of Organised Crime Act, 1999 [for short "the MCOCA"] against the Petitioners and to set them at liberty.
3. The issue regarding constitutional validity raised in the present writ petitions was also raised in Criminal Writ Petition No. 4639 of 2018. The Petitioner therein relied upon the decision in Nikesh Tarachand Shah v. Union of India 1, in which the Apex Court 1 2018(11) SCC 1 patilsr 2/ 21 ::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:03:05 ::: WP-1670 & 3741/19 has struck down the provisions of section 45 of the Prevention of Money Laundering Act, 2002 [for short "the PMLA Act"] being arbitrary and contravening Articles 14 and 21 of the Constitution of India. In that case, this Court noted that the provisions of section 21(4) of the MCOC Act is para materia with section 45 of the PMLA Act and prima facie opined that issue about the constitutional validity of section 24 of the MCOC Act, requires consideration and accordingly issued Rule, with notice to the Advocate General.
4. Since the issue raised in the present petitions is exactly identical to the issue raised in Writ Petition No.4639 of 2018, in the present petitions too we grant Rule. We also issue notice to the learned Advocate General. The instant writ petitions to be heard along with Writ Petition No. 4639 of 2018.
5. In Writ Petition No. 4639 of 2018, this Court has considered the Petitioner's prayer for interim relief of bail. We independently examined the issue of grant of interim relief of bail and in the facts and circumstances of that case, for the reasons given in support of that order, we have granted interim relief to patilsr 3/ 21 ::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:03:05 ::: WP-1670 & 3741/19 the Petitioner therein.
. The Petitioners in the instant writ petitions have also prayed for grant of interim relief of bail and accordingly we are constrained to consider this prayer on its own merits
6. The Petitioner in Writ Petition No.1670 of 2019 is the original accused no.8 and the Petitioner in Writ Petition No.3741 of 2019 is the original accused no.2 in FIR bearing CR. No. 104 of 2018 registered with Samarth Police Station, Pune wherein the allegations levelled against accused is of the commission of offence punishable under sections 306 and 506 read with 34 of the Indian Penal Code, 1860. This FIR was registered at the instance of Jayesh Jagtap, the son of deceased Jitendra Jagtap. The deceased had committed suicide on 2 nd June 2018. It is alleged in the FIR that Jitendra Jagtap was in possession of property bearing Survey No. 481, Rasta Peth, Pune as care-taker. It is further alleged that the Petitioner in WP No.1670 of 2019 and his partner Sudhir Karnataki were threatening deceased Jitendra Jagtap for giving possession of the said property. It is further alleged that accused no.1 along with 6 to 7 persons threatened patilsr 4/ 21 ::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:03:05 ::: WP-1670 & 3741/19 deceased Jitendra Jagtap for giving possession of the said property and therefore, deceased Jitendra committed suicide. Accused Nos.1 to 5 were arrested on 3 rd June 2018 and accused Nos.6 and 7 were arrested on 7 th June 2018. Accused no.8, namely, the Petitioner in WP. No. 670 of 2019 surrendered before the investigating agency on 1st August 2018. . On 1st August 2018, the Additional Commissioner of Police, Pune granted prior approval under section 23(1)(a) of the MCOCA Act thereby invoking section 3(1)(i), 3(2) and 3(4) of the said Act in the subject crime. As stated above, the Petitioners in both the petitions are challenging the said prior approval order in order to claim the interim relief of bail.
7. Mr. Ponda, learned counsel for the Petitioner invited our attention to the approval order passed by the Additional Commissioner of Police, Pune under section 23(1)(a) of the MCOC Act, copy of which is annexed at page 66 of WP Nod. 1670 of 2019. He submitted that while granting approval, the Additional Commissioner of Police has relied upon 8 crimes/FIRs. He submitted that though proposal for approval contained details of patilsr 5/ 21 ::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:03:05 ::: WP-1670 & 3741/19 14 crimes / FIRs against accused in the subject crime, the Additional Commissioner has relied upon 8 crimes / FIRs only. He further submitted that out of those 8 crimes/ FIRs, the Petitioner in WP No.1670 of 2019 is accused in only one crime, ie., CR No. 285 of 2008 registered with Shivaji Nagar Police Station, Pune and so far as the Petitioner in WP No. 3741 of 2019 is concerned, he is not accused in any of the crimes / FIRs relied upon by the Additional Commissioner of Pune.
8. The learned counsel for the Petitioner invited our attention to the relevant provisions of the MCOC Act and submitted that the subject approval order made under section 23(1)(a) of the said Act ex-facie discloses non application of mind and therefore, the Petitioners are entitled to be released on bail during the pendency of writ petitions.
9. In the light of mandate of section 21(4) of the MCOC Act, we have also afforded an opportunity of hearing to the learned APP. The learned APP opposed the grant of interim relief. Mr. Kamkhedkar, the learned APP submitted that though only 8 crimes / FIRs are referred to in the prior approval order, the patilsr 6/ 21 ::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:03:05 ::: WP-1670 & 3741/19 proposal submitted to the approving authority contains details of 14 crimes / FIRs against accused persons. He submitted that this Court should take into consideration the proposal of Samarth Police Station for prior approval, and if the same is considered, there is no question of grant of any interim relief to the Petitioners.
10. The original complainant - Jayesh Jitendra Jagtap has filed an application bearing Criminal Application No. 398 of 2019 for intervention. We have, therefore, heard him too. Mr. Joshi, learned counsel for the Applicant- intervener relied upon the proposal submitted by Samarth Police Station for prior approval under section 23(1)(a) of the MCOC Act. The learned counsel submitted that application of mind by the sanctioning authority is a matter which requires evidence to be led and the prosecution has to be given sufficient opportunity to lead evidence in that regard and therefore, the present writ petitions are premature and there is no question of exercising jurisdiction by this Court at this interim stage.
11. Before going into factual aspects of the above patilsr 7/ 21 ::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:03:05 ::: WP-1670 & 3741/19 matters, it would be appropriate to set out certain provisions of MCOC Act, in particular sections 2(d), 2(e) and 2(f) of the said Act as under :
section 2(d) defines "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 field before a competent Court within the preceding period of ten years and that Court has taken cognizance of such offence;
section 2(e) defines "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 person or promoting insurgency section 2(f) defines "organised crime syndicate"
means a group of two or more persons who, acting either singly or collectively, as a syndicate of gang indulge in activities of organised crime;
. Under clause (d) of section 2 of the MCOC Act, "continuing unlawful activity" means an activity prohibited by law for the time being in force which is a cognizable offence patilsr 8/ 21 ::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:03:05 ::: WP-1670 & 3741/19 punishable with imprisonment for three years or more, undertaken either singly or jointly, as a member of the organized crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed. It is, therefore, clear that one or more charge-sheets, containing allegations that the alleged offence was committed either singly or jointly, as a member of the organized crime syndicate or on behalf of such syndicate, is sine qua non for invoking stringent provisions of MCOCA. This follows that mere filing of more than one charge-sheets within the preceding period of ten years, alleging commission of cognizable offences punishable with imprisonment of three years or more, is not enough.
12. In other words, in order to constitute "continuing unlawful activity" following requirements of law should be satisfied :-
[1] More than one charge-sheets, alleging commission of cognizable offence punishable with imprisonment of three years or more;
[2] A charge-sheet should consists of averments, alleging unlawful activity undertaken either singly or patilsr 9/ 21 ::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:03:05 ::: WP-1670 & 3741/19 jointly by the accused;
[3] as a member of organized crime syndicate or on behalf of such syndicate;
[4] the cognizance of such offence is taken by the competent Court.
13. In the light of above, we have perused the proposal given by Senior Inspector of Police, Samarth Police Station, Pune to the Additional Commissioner of Police- the sanctioning authority. The proposal discloses that following crimes are registered against the accused in the subject crime :
Sr. P.S. CR No. Section and Name of Charge-sheet Result/ Court No. Registeration date. accused. filing date / Court pending.
case Number.
1. Shivaji Nagar PS Crime No. Dipak 5/11/2009 Court 285 of 2008, IPC 324, 326, Madhavrao CC No. Pending. 354, 452, 427, 109, 143 147, Mankar 4050430/09
149.
2. Vishrantwadi PS Crime No. Vishant 8/5/2009 RCC No. Court 414/2008, IPC Sections 143, Kamble, 196/09 pending, 147, 148, 452, 323, 506, 427
3. Khadak PS, Crime No. Dipak 30/9/2009 Decided 150/2009, IPC Sections 452, Mankar, CC No. 21/11/11 395, 336, 337, 384, 143, Sudhir 404497/09 acqitted.
147, 120(B), 504 and 506 Karnataki
4. Visharambaug PS, Crime No. Dipak 1912/2009 Decided
169/2009 IPC Sec. 342, Mankar CCNo. 5813/09 8/3/2011
506(2), 294, 504, 34 acquitted.
5. Chaturshringi PS, Crime No. Dipak 30/8/09 Court
248/2009, IPC Sec.447, 506, Mankar CC No. 46085/09 pending.
patilsr 10/ 21
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WP-1670 & 3741/19
427, 34
6. Vishrantwadi PS Vishant 30/5/2011 Court
Crime No. 3186/2010 Kamble RCC No. pending.
Arm Act sec. 3 with 25. 117/2011
7. Vishrantwadi PS, Crime No. Vishant 30/9/2011 Court
175/2011, IPC sec 307, 147, Kamble. RCC No. 235 of pending.
148, 149, 323, 504 2011
8. Vishrantwadi PS, Crime Vishant 19/5/2009 Court
No.71/2008, IPC sec. 143, Kamble RCC No. pending.
147, 149, 324, 427, 435 213/2009
9. Kotharud PS, Crime No. Nana 14/7/2014 Court
276/2015 IPC sec. 324, 34 Kudale RCC No. pending.
402695/2014
10. Sahakarnagar PS Crime No. Vinod 9/10/2015 Court
206/2015 IPC Sec. 364(A) Bhole RCC No. pending.
389, 34 3868/2015
11. Kotharud PS, Crime No. Sudhir 5/6/2017 RCC No. Court
108/2017, IPC sec.324, 143, Sutar 2996/2017 pending.
147, 148, 149, 427.
12. Deccan PS, Crime No. Ajay Date 2/10/2009 Acquitted.
92/2009 IPC Sec.143, 147, Kandhare. RCC No. 10/2/2011
149, 324, 427 4540/2009
13. Deccan PS, Crime No. 69/209 Ajay Date 29.9.2009 Acquitted
IPC sec. 324, 323, 504 34 Kandhare RCC No. 10/2/2011
4484/2009
14. Swargate PS, Crime No. Date 4/8/2009 Court
193/2009, IPC 364(A), 387, Ajay Court case No. pending.
397,341 Kandhare 3594 /20090
Arms Act 3 with 25.
. Out of the above crimes disclosed or referred to
above, in the proposal, the sanctioning authority in its order under section 23(1)(a) has taken into consideration only 8 crimes / FIRs, which are as follows :patilsr 11/ 21 ::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:03:05 :::
WP-1670 & 3741/19 Sr. Police Station, FIR / crime No. Current No. Status.
1. Shivaji Nagar PS Crime No. 285 of 2008, IPC 324, 326, pending 354, 452, 427, 109, 143, 147, 149.
2. Vishrantwadi PS Crime No. 414/2008, IPC Sections 143, pending 143, 148, 452, 323, 506, 427
3. Vishrantwadi PS, Crime No.; 3186/2010 Arms pending Act, Section 3 and 25.
4. Vishrantwadi PS, Crime No. 175/2011, IPC sec 307, pending 147, 148, 149, 323, 504
5. Vishrantwadi PS, Crime No.71/2008, IPC sec. 143, 147, pending 149, 324, 427, 435
6. Kotharud PS, Crime No. 276/2014 IPC sec. 324, 34 pending
7. Sahakarnagar PS Crime No. 206/2015 IPC Sec. 364(A) pending 389, 34
8. Swargate PS, Crime No. 193/2009, IPC 364(A), 387, pending 397,341 Arms Act 3 with 25.
14. It is also pertinent to note that at the time of submitting proposal, no charge-sheet was sent along with the proposal, and as stated above, only 8 crimes / FIRs were considered. Till date, 13 charge-sheets have been filed which are as follows :
Sr. Police Station, FIR / crime Number and sections. No.
1. Shivaji Nagar PS Crime No. 285 of 2008, IPC 324, 326, 354, 452, 427, 109, 143 147, 149.
2. Vishrantwadi PS Crime No. 414/2008, IPC Sections 143, 147, 148, 452, 323, 506, 427
3. Visharambaug PS, Crime No. 169/2009 IPC Sec. 342, 506(2), 294, 504, patilsr 12/ 21 ::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:03:05 ::: WP-1670 & 3741/19 34
4. Chaturshringi PS, Crime No. 248/2009, IPC Sec.447, 506, 427, 34
5. Vishraniwadi PS, Crime No. 3186/2010, Arms Act sec. 3 with 25.
6. Vishrantiwadi PS, Crime No. 175/2011, IPC sec 307, 147, 148, 149, 323, 504
7. Vishrantwadi PS, Crime No.71/2008, IPC sec. 143, 147, 149, 324, 427, 435
8. Kotharud PS, Crime No. 276/2014 IPC sec. 324, 34
9. Sahakarnagar PS Crime No. 206/2015 IPC Sec. 364(A) 389, 34
10. Kotharud PS, Crime No. 108/2017, IPC sec.324, 143, 147, 148, 149, 427.
11. Deccan PS, Crime No. 92/2009 IPC Sec. 143, 147, 149, 324, 427
12. Deccan PS, Crime No. 69/209 IPC sec. 324, 323, 504 34
13. Swargate PS, Crime No. 193/2009, IPC 364(A), 387, 397,341 Arms Act 3 with 25.
14. In the present case, if the prior approval order passed under section 23(1)(a) of the MCOC Act is perused, it is clear that the Petitioner in WP No. 1760 of 2019 was involved in only one crime / FIR, as accepted by the approving / competent authority, namely, CR. No. 285 of 2008 registered with Shivaji Nagar Police Station, Pune for the offence punishable under sections 324, 326, 354, 452, 427, 109, 143, 147 and 149. Admittedly, other accused were not concerned with the said case / FIR. Similarly as far as other 7 crimes / FIRs referred to above in the approval order are concerned, the other accused were separately charge-sheeted or tried patilsr 13/ 21 ::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:03:05 ::: WP-1670 & 3741/19 differently before the competent Courts and as such there is prima facie no indication of such offences constituting offence of "organised crime syndicate".
So far as the Petitioner in WP No. 3741 of 2019 is concerned, he is not named in any of the 8 crimes / FIRs referred to above by the competent authority while giving approval under section 23(1)(a). In the light of provisions of the MCOC Act, referred to above, it is mandatory that more than one charge-sheet alleging the commission of the offence punishable with imprisonment of three years or more ought to have been there in order to apply the stringent provisions of MCOC Act. Therefore, prima facie the approval authority seems to have passed the impugned order without application of mind as to whether the offences charged were committed by various accused as members of organised crime syndicate.
15. Learned APP and the learned counsel for the intervener heavily relied upon the crimes / FIRs against the accused in the subject crime referred to in the proposal made under section 23(1)(a) of the said Act. We have perused the same. As stated above, it contains 14 crimes / FIRs. However patilsr 14/ 21 ::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:03:05 ::: WP-1670 & 3741/19 when the charge-sheet was filed in the subject crime, prosecution relied only upon 13 previous crimes / FIRs referred to above. There is no reference in the present charge-sheet about CR. No. 150 of 2009 registered with Khadak Police Station. Obviously, this crime is not of much relevance for the purpose of considering the Petitioner's prayer for grant of interim relief. Out of remaining 13 previous crimes/ FIRs, the name of Petitioner in WP No.1670 of 2019 is shown as accused in (i) FIR No.285 of 2008 registered with Shivaji nagar Police Station, (ii) FIR No. 169 of 2009 registered with Vishrambaug Police Station and (iii) FIR No.248 of 2009 registered with Chaturshrungi Police Station. As stated above, only FIR No. 285 of 2009 registered with Shivaji Nagar Police Station is reflected in the prior approval order.
16. Crime / FIR No. 285 of 2018 was registered on the allegation of commission of the offences punishable under sections 326, 354, 452, 427, 109, 143, 147, 149 of IPC and section 37(a)(a) of Maharashtra police Act, section 3(25) and 4(25) of the Arms Act. The cognizance of the said offence is taken on 6th November 2009. However, the proceedings of the patilsr 15/ 21 ::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:03:05 ::: WP-1670 & 3741/19 said case are stayed by this Court as per the order dated 13 th October 2014.
17. Crime / FIR no. 169 of 2009 was registered on the allegation of commission of the offence punishable under sections 342, 504, 294, 506(2) read with 34 of the Indian Penal Code, 1860 and section 30 of the Arms Act. Perusal of this crime shows that charge sheet is filed for the offences which are punishable with the imprisonment of less than 3 years except offence under section 506(2) of IPC and the cognizance has been taken of those offences only. Though the offence under section 506(2) of IPC is punishable with imprisonment for 7 years, the said offence is non-cognizable in nature and hence cannot be considered to invoke the provisions of MCOC Act.
18. So far the 3rd crime / FIR. namely, CR No.248 of 2009 registered with Chaturshringi Police Station is concerned, the allegation is about the commission of offences punishable under sections 504, 447, 506, 427 read with 34 of the Indian Penal Code, 1860. However, the charge-sheet is filed only for patilsr 16/ 21 ::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:03:05 ::: WP-1670 & 3741/19 for the offence punishable under sections 447, 506, 427 read with 34 of the Indian Penal Code, 1860. The said case is registered as summary case bearing SCC No. 46085 of 2009. The offences alleged to have been committed in this case are punishable with imprisonment of less than 3 years. Thus, this crime cannot be considered to invoke the provisions of MCOC Act against the Petitioner in WP No.1670 of 2019. Thus, the Petitioner in WP 1670 of 2009 is shown as accused in only three crimes/ FIRs, and out of these 3 crimes, 2 crimes cannot be considered for the purpose of application of MCOC Act. Thus, there is only one charge-sheet against the Petitioner since last 10 years, which can be taken into consideration for the purpose of invoking the provisions of MCOC Act.
19. So far as the Petitioner in WP No.3741 of 2019 is concerned, as stated earlier, he is not accused in any of 8 crimes / FIRs referred to above by the approving authority. However, perusal of the proposal shows that he was an accused in only one crime / FIR bearing CR. No. 108 of 2017 registered with Kotharud Police Station on the allegation of commission for the offences punishable under sections 324, patilsr 17/ 21 ::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:03:05 ::: WP-1670 & 3741/19 143, 147, 148, 149 and 427 of IPC and he has already been acquitted in the said case. Even though this acquittal can not be taken into consideration, the fact remains that out of 14 crimes / FIRs referred to above in the proposal, the Petitioner herein was accused in only one case. Therefore, prima facie, in our opinion, the provisions of MCOC Act cannot be invoked in the present case.
20. The learned counsel for the intervener relied upon the following cases :
- Sachin Bansilal Ghaiwal v. State of Maharashtra2
- Mujahid Ibrahim Pathan v. State of Maharashtra3
- Farman Imran Shah v. State of Maharashtra4
- Govind Sakharam Ubhe v. State of Maharashtra5
- Anil Sadashiv Nanduskar v. State of Maharashtra6 . Relying upon the above decisions, Mr. Joshi, learned 2 2014(3) Bom. C.r. (Crim.) 774.
3 2015 ALL MR. (Crim) 876.
4 2014(3) Bom. C.R.(Crim) 144.
5 2009(3) Bom. C.R. (Crim) 144.
6 2008(3) Mh.L.J. (Crim) 650.patilsr 18/ 21 ::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:03:05 :::
WP-1670 & 3741/19 counsel for the intervener contended that the application of mind by the sanctioning authority is a matter of trial which requires evidence to be led and the prosecution has to be given sufficient opportunity to lead evidence in that regard.
21. Mr. Ponda, the learned counsel for the Petitioner on the contrary relied upon the decision of the Apex Court in Prasad Shrikant Purohit v. State of Maharashtra 7. The apex Court in Prashad Purohit (supra) in paragraph 95 has held as follows :
"In the light of our above conclusions on the various submissions, we are convinced that in respect of the appellant in Criminal Appeal No.1971/2010, namely, A- 7, there is no scope even for the limited purpose of Section 21(4)(b) to hold that application of MCOCA is doubtful. We have held that the said appellant A-7 had every nexus with all the three crimes, namely, Parbhani, Jalna and Malegaon and, therefore, the bar for grant of bail under Section 21 would clearly operate against him and there is no scope for granting any bail. Insofar as the rest of the appellants are concerned, for the purpose of invoking Section 21(4)
(b), namely, to consider their claim for bail, it can be held that for the present juncture with the available materials on record, it is not possible to show any nexus of the appellants who have been proceeded against for their involvement in Malegaon blast with the two earlier cases, namely, Parbhani and Jalna.
There is considerable doubt about their involvement in Parbhani and Jalna and, therefore, they are entitled for their bail applications to be considered on merits."
[emphasis supplied] 7 (2015) 7 SCC 440 patilsr 19/ 21 ::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:03:05 ::: WP-1670 & 3741/19
22. We are bound by these observations of the apex Court in the light of provision of Article 141 of the Constitution of India. These observations make it clear that if the application of MCOC is doubtful qua the Petitioner, then, the Petitioner is entitled to be released on bail.
23. The overall perusal of the material against the Petitioners, in both the writ petitions even if taken at its face value does not disclose sufficient or tangible material which would, prima facie, justify the invocation of the provisions of MCOC against the Petitioners as an organised crime syndicate. The Petitioners are languishing in jail since last more than 1 year. In such circumstances, we are, prima facie, satisfied that the order passed by the Additional Commissioner of Polcie, Pune suffers from non application of mind as no material is produced on record as part of the charge-sheet justifying the invocation of provisions of MCOCA against the Petitioners. We are satisfied that at this stage material on record is not sufficient to prima facie establish that the various offences allegedly committed by the various accused were committed as members of the organized crime syndicate. The findings patilsr 20/ 21 ::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:03:05 ::: WP-1670 & 3741/19 recorded by us are merely prima facie and tentative in nature and, in any case, they will have no bearing on the merits of the case and trial Court is at liberty to decide the cases on the basis of evidence adduced before it at the time of trial without being influenced by the aforesaid observations.
24. In the backdrop of aforesaid facts, we deem it appropriate and convenient to grant interim relief in terms of prayer clause (e) of both the writ petitions. We, accordingly, direct that the Petitioners be released on bail in Special MCOCA Case No. 55 of 2018 arsing out of CR. No. 104 of 2018 registered with Samarth Police Station, Pune on executing P. R. Bond in the sum of Rs.1,00,000/- with one or two sureties in the like amount to the satisfaction of the trial Court.
[N. J. JAMADAR, J.] [RANJIT MORE, J.] patilsr 21/ 21 ::: Uploaded on - 22/10/2019 ::: Downloaded on - 23/10/2019 02:03:05 :::