Bombay High Court
Mangesh Manik Kanchan vs The State Of Maharashtra on 13 July, 2015
Author: Mridula Bhatkar
Bench: Mridula Bhatkar
3.BA1696_2014.doc
Vidya Amin
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 1696 OF 2014
Mangesh Manik Kanchan ... Applicant
Vs.
The State of Maharashtra ... Respondent
WITH
BAIL APPLICATION NO. 1930 OF 2014
Navanath Vilas Chavan ... Applicant
Vs.
The State of Maharashtra ... Respondent
Mr. S.V. Kotwal i/b. Mr. Avinash Kamkhedkar, Advocate for the applicant in
BA/1696/2014.
Mr. Abhishek Yende, Advocate for the applicant in BA/1930/2014.
Mr. Arfan Sait, APP for the State in both the matters.
CORAM: MRS.MRIDULA BHATKAR, J.
DATE : JULY 13, 2015
P.C.:
These two Bail Applications are heard and decided together, as
both the applicants/accused are involved in the same offence in C.R. No.
170 of 2012 punishable under sections 395 and 201 of the Indian Penal
Code, sections 4, 27 of the Arms Act and under section 3(1)(4) of the
Maharashtra Control of Organized Crime Act, 1999.
2. It is the case of the prosecution that these two applicants belong to
a gang headed by Santosh @ Lubhya Chandilkar. On 31 st October, 2012
at around 7.30 a.m., complainant was travelling on Highway from Pune to
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Mandangad in his Ford Figo Car bearing no. MH20/B.Y./1405 and when
he reached near Village Adarwadi, co-accused nos. 1 to 5 arrived there at
Honda City car and stopped the car of the complainant. They were armed
with sickle and axe. They pulled the complainant out of the car and
threatened him of the weapons. They robbed laptop, cell phone, cash of
Rs.15,000/- and car of the complainant. Thus, they took away articles
valuing Rs.2,27,000/-. During the course of the investigation, the police
found that co-accused 1 to 5 are members of gang headed by Santosh @
Lubhya Chandilkar. Applicants/accused are also the members of said
gang. It is the case of prosecution that all these gang members are
continuously involved in unlawful activity of robbery and assault during
last 5 to 6 years and they have jointly committed total 29 offences.
Therefore, Santosh alias Lubhya Chandilkar along with his other
associates including applicants/accused were also made accused in C.R.
No. 170 of 2012. The police moved an application for invoking MCOC Act
and on 26th February, 2013 MCOC Act was applied. Thereafter, accused
Mangesh was shown arrested on 14th March, 2013 and accused Navanath
on 18th March, 2013. Hence these Bail Applications.
3. The learned counsel for the applicants/accused have submitted that
both the applicants/accused are not involved in this crime of robbery. They
were in the prison at the relevant date. The learned counsel Mr. Kotwal
submitted that applicant Mangesh was inside the prison from 19 th March,
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2012 in some other offence and the learned counsel Mr. Yende submitted
that applicant Navanath was in prison since 23 rd September, 2012. It is
submitted that only because the applicants/accused are allegedly
associated with gang of Santosh @ Lubhya Chandilkar and there are
criminal antecedents against the applicants/accused, their bail was
rejected by the learned Sessions Judge. The learned counsel for the
applicants/accused submitted that learned Sessions Judge in fact has
released Vijay Khawale/accused no. 9 and Ganesh Buchade/accused no.
8 on bail though they were having criminal antecedents. The learned
counsel further submitted that the prosecution ought not have roped the
applicants/accused in the present crime. The learned counsel further
submitted that while invoking MCOC Act against the applicants/accused,
the prosecution has committed mistake of erroneous interpretation of the
legal terms, i.e., continuing unlawful assembly and member of organized
crime.
4. Learned APP vehemently opposed the Bail Applications. He
submitted that the applicants/accused are hardcore criminals and
members of Santosh @ Lubhya Chandilkar. 13 cases are pending against
applicant Mangesh and 6 cases are pending against applicant Navanath.
The offences are of similar nature and they are the members of the gang
headed by Santosh @ Lubhya Chandilkar. He further submitted that the
gang has been involved in continuing unlawful activity and nearly 29
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offences have been committed by the members of the gang, therefore,
MCOC Act is invoked and they are rightly prosecuted under section 3(1)
(4) of MCOC Act. Learned APP further relied on Section 21(4) of MCOC
Act. He submitted that there is bar on granting bail if accused is facing
charges under MCOC Act. He submitted that under section 21(4) of the
Act, the Judge has to satisfy himself that if an offender is released on bail,
there are restriction on the Court to grant bail because the Court has to
satisfy itself that there are reasonable grounds for believing that the
applicant is guilty of such offence and he is not likely to commit any
offence while on bail. Learned APP argued that considering the criminal
record of these applicants/accused and as they are the members of
organized crime syndicate, they are definitely going to commit offence of
similar nature if they are granted bail.
5. Perused the FIR and the papers produced by the prosecution and
the learned counsel for the applicants/accused. It is not a case of the
prosecution that the offence of robbery registered at C.R. 170 of 2012 of
Paud Nagar Police Station was committed by the applicants. Moreover,
admittedly both the accused were in the prison on 31 st October, 2012, i.e,
on the date of the incident. There is no material on record to show that the
applicants/accused along with co-accused nos. 1 to 5 who have actually
committed the offence, have hatched conspiracy of the said robbery and
have participated passively in the said crime. It is not a case that the
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applicants/accused have received any amount or any share out of this
offence. Thus, the material before this Court which is placed by the
prosecution for invoking MCOC Act against these applicants is that they
have very bad criminal record of the commission of the offences of similar
nature during the last 6 to 7 years. Moreover, they are the members of the
gang headed by Santosh @ Lubhya Chandilkar. There is material on
record to show that at the relevant time, the applicants were arrested and
inside the prison for some other offence which they have committed along
with other gang members. ig Considering this evidence against the
applicants/accused, if MCOC Act would not have been invoked, then
these applicants/accused would definitely have been out released on bail
because they are not connected with the commission of robbery.
However, in the present case, the prosecution has invoked MCOC Act and
therefore, these Applications for bail are to be considered in the light of
provisions under MCOC Act. A question to be decided is as follows:
"Whether a member of a gang if not concerned with a particular
offence which is committed by the other members of the gang;
can be prosecuted for the offence under section 3(4) of the
MCOC Act?
6. To be a member of an organized crime syndicate is an offence
under section 3(4) of the Act, which reads as follows:
3. Punishment for organised crime-
(4) Any person who is a member of an organised crime
syndicate shall be punishable with imprisonment for a term which
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shall not be less, than five years but which may extend to
imprisonment for life and shall also be liable to a fine, subject to
a minimum fine of rupees five lacs.
7. Before invoking section 3(4) of MCOC Act, it is necessary to
consider 3(1) of the Act. Section 3 speaks about the Punishments for the
organized crime and Section 2 states the definitions of the terms under the
MCOC Act. The continuing unlawful activity is suppose to be a core of the
offences. The definition of continuing unlawful activity under section 2(d)
reads as under:
"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;
8. Thus, "the activity" should be prohibited by law for the time being in
force. That activity is a cognizable offence punishable with imprisonment
of three years or more. Therefore, continuing unlawful activity necessarily
contemplates commission of cognizable offence. A person can be a
member of a particular gang but he may not participate at all in a
commission of offence committed by a particular member of the gang. For
each and every commission of the offence, all the gang members, who are
from that gang, cannot be roped in. It will lead to a tyrant situation. These
members may work under one leadership, however, they may commit
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offence independently which should fall under the definition of "continuing
unlawful activity" as either singly or jointly as a member of an organized
crime syndicate. However, it is necessary for a member to either
participate actively or passively in such crime, then only he can be
charged for the offence punishable under the Indian Penal Code and then
the member who has knowingly participated either actively or passively
can also be prosecuted under section 3(4) of the MCOC Act. For better
understanding of this legal position, the definition of continuous unlawful
activity & organized crime needs to be considered. The definition of
organized crime reads as under:
"organised crime" means any continuing unlawful activity by an
individual, singly or jointly, either as a member of an organized
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"
9. Continuous unlawful activity contemplates commission of
cognizable offence and therefore, if at all there is a commission of
cognizable offence along with other ingredients, then it is a continuous
unlawful activity may amount to organized crime and the person who is
involved in such commission of offence and if at all he is a member of the
organized crime syndicate, he can be punished under section 3(4) of the
MCOC Act. These all definitions are circular and interlinking with each
other and therefore, a prosecution simplictor under section 3(4) of the
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MCOC Act though is available in the Act, is practically not possible. A
member of syndicate may commit cognizable offence jointly, then section
3(4) can be invoked for the offence and he can be chargesheeted
accordingly. However, if cognizable offence is not committed and though
he is known as a member of organized crime syndicate, cannot be
prosecuted and charge sheeted for being a member of organized crime
alone. Though there is a penal provision yet due to circular definitions of
the terms under sections 2(d) and 2(e) of the Act, a member of a gang
practically cannot be prosecuted under section 3(4) of the Act simplicitor.
10. Life flows and a member may repent and he may withdraw himself
from the gang. A person may not remain a member of the gang
throughout his life and therefore, it is draconian to permanently keep him
under a hanging sword that he can be prosecuted under section 3(4) of
the MCOC Act for any crime committed by any member of the gang.
Therefore, penal section 3(4) is necessarily controlled by defining sections
2(d ) and 2(e) of the Act. A power to grant bail in cases under the Act to
be used if conditions under section 21(4) are fulfilled.
11. Section 21(4)(b) of the Act restricts discretion of the Court, which
reads as under:
"Where the Public Prosecutor opposes the application, the Court
is satisfied that there are reasonable ground for believing that he
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is not guilty of such offence and that he is not likely to commit
any offence while on bail".
12. Learned APP, while buttressing his submissions on the point of the
discretionary power of the Court while granting bail under MCOC Act,
relied on the judgment of the Hon'ble Supreme Court in the case of State
of Maharashtra vs. Vishwanath Maranna Shetty, reported in 2013 Cri.
L.J. 2015.
13. I have carefully gone through the case of Vishwanath Maranna
Shetty (supra). In that case, there was a murder and an offence under
section 302 r/w. 120B of the Indian Penal code and other sections of
MCOC Act were invoked. Maranna Shetty was a member of the
organized crime syndicate of Bharat Nepali. One person was murdered.
The accused was instrumental in handing over an amount to the actual
shooter who killed one person named Farid Tanasha.
14. In the present case, the applicants/accused were inside the prison.
There is no iota of evidence of conspiracy. There is no charge under
section 120B r/w. 34 of the Indian Penal Code and they are not attributed
any active or even a passive role in the present offence. In the case of
Vishwanath Maranna Shetty (supra), Hon'ble Supreme Court has
formulated a point in paragraph 5 as follows:
"The only point for consideration in this appeal is whether in the
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light of the allegations made and materials placed by the
prosecution, the High Court was justified in granting bail,
particularly in the light of restriction imposed under section 21(4)
of MCOCA?
15. Thus, the answer to the question raised in the present case is in fact
found in the point formulated by the Hon'ble Supreme Court in Maranna's
case. The learned APP submitted that considering very bad criminal
record of the present applicants/accused, there is no guarantee that they
are not likely to commit offence while on bail. Learned APP rightly
submitted that on the background of antecedents there is more chance
that the applicants would commit offence in future while on bail, however,
the Hon'ble Supreme Court has held that in the light of allegations made
and materials placed by the prosecution, the Bail Application is to be
decided.
16. Let us advert to Section 21(4B) of the Act which states that Court
shall satisfy itself regarding two conditions while granting bail. The first
condition is that the Court has to satisfy that there are reasonable grounds
that the person has not committed a particular offence for which the crime
is registered. Then, section speaks of a second condition that he is not
likely to commit offence while on bail. Thus, Section 21(4) also
contemplates that there should be commission of an offence and the
material placed and allegations made against the accused in that offence
(such offence) has to be taken into account by the Judge first and
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thereafter the Judge has to consider second circumstance that he is not
likely to commit any offence while on bail. There is always more chance
of a criminal having very bad record of many cases on his account is likely
to commit offence in future, however he cannot be detained in anticipation
and apprehension in the prison for the offence he may commit in future.
There should be actual commission of offence by him in the present. A
past of a criminal cannot be linked always with his future when he has not
committed any offence in the present. Otherwise he would be completely
denied the opportunity to improve. This is against a basic principle of the
criminal jurisprudence. For example, Under the Evidence Act, bad
character of an accused is not a relevant fact. A person may commit a
crime and he be convicted for the same, however, he cannot be labelled
as a member of the gang throughout his life. Such member may repent
for his act and may leave that gang, however, it is difficult to ascertain a
time of his leaving gang. Sometimes repentance may be a compelling
factor for a human being to withdraw from criminal activity. Thus, there is a
more possibility that a person having a bad criminal record may commit
offence in future if released on bail, however, that is not the condition
which can be considered first in interpreting Section 21(4) of the MCOC
Act but the Court has to consider the material allegations against the
applicants available in respect of that particular crime committed in the
present. Under such circumstances, considering this position of law, I
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am inclined to grant bail to the applicants/accused on the following terms
and conditions:
ORDER
i) Applications are allowed.
ii) The applicants shall be released on bail upon furnishing P.R.
Bond in the sum of Rs.50,000/- each with one or two sureties in the like amount;
iii) The applicants shall not commit any such offence under MCOC Act, while on bail;
iv) The applicant shall not threaten or pressurize the witnesses;
v) The applicants shall make themselves available and attend all Court dates;
(vi) The applicants shall not abscond and and furnish their address to the police along with address proof.
(vii) Violation of any of the conditions imposed shall amount to cancellation of bail forthwith.
(viii) The applicants shall not leave India without the prior permission of the Court.
17. The Applications stands disposed of on above terms.
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