Gujarat High Court
Imran @ Rock Jusabbhai Majothi vs State Of Gujarat on 4 December, 2023
NEUTRAL CITATION
R/CR.MA/16869/2023 ORDER DATED: 04/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 16869 of 2023
(FOR REGULAR BAIL - AFTER CHARGESHEET)
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IMRAN @ ROCK JUSABBHAI MAJOTHI
Versus
STATE OF GUJARAT
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Appearance:
MR HRIDAY BUCH with MR DENISH V MAVADHIYA(9207) for the
Applicant(s) No. 1
MR HK PATEL APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 04/12/2023
ORAL ORDER
1. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with FIR being C.R.No.11186009210108 of 2021 registered with Veraval Police Station, Gir-Somnath for the offence punishable under Sections 3(1)(ii), 3(2), 3(3), 3(4) and 3(5) of the Gujarat Control of Terrorism and Organised Crime Act, 2015 (hereinafter referred to as the 'GUJCTOC Act' for short).
2. Heard learned advocate, Mr. Hriday Buch assisted by learned advocate, Mr. Denish Mavadhiya for the applicant and learned APP Mr. H.K. Patel for the respondent - State of Gujarat.
3. Learned advocate for the applicant submitted that the so-called incident is registered against the applicant - accused on 22.03.2021 and the Page 1 of 12 Downloaded on : Tue Dec 05 20:41:37 IST 2023 NEUTRAL CITATION R/CR.MA/16869/2023 ORDER DATED: 04/12/2023 undefined applicant has been arrested on the very next day i.e. on 23.03.2021 and since then, he is in judicial custody. It is submitted that now the investigation is completed and after submission of the chargesheet, the present application is preferred. Learned advocate submitted that for the purpose of invocation of provision of the GUJCTOC Act, the prosecution has put reliance upon 3 offences, which have been registered during the period between 2006 to 2021 and out of these 3 cases, in 2 cases, the Coordinate Bench of this Court has quashed the FIR and in connection with one FIR, the trial is going on, however, the applicant is not yet arrest nor chargesheeted. Learned advocate submitted that out of those 3 cases, only 1 case have been registered after promulgation of the provision of the GUJCTOC Act and, hence, act, action and behavior of the applicant would not fall under the provision of Section 2(1)(c) of the GUJCTOC Act and for the purpose of fulfillment of the ingredients of continuing unlawful activity, the prosecution agency has to satisfy the requirement mentioned in Section 2(1)(c) of the GUJCTOC Act. Learned advocate submitted that the prosecution has miserably failed to generate evidence to satisfy the ingredients of Section 2(1)(c) of the GUJCTOC Act at the time of submission of the chargesheet and in absence of sufficient material, bail application may be considered.
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4. Learned advocate has placed reliance upon decision of the Hon'ble Apex Court in case of The State of Gujarat Vs. Sandip Omprakash Gupta, delivered in Criminal Appeal No.2291/2022 (arising out of SLP (Criminal) No.6101/2021 and referred to the observations made by the Hon'ble Apex Court in the said decision. It is, therefore, urged that considering the ratio laid down by the Hon'ble Apex Court in the aforesaid decision, the present application may be allowed by imposing suitable conditions
5. On the other hand, learned APP for the respondent-
State has opposed grant of regular bail looking to the nature and gravity of the offence. It is submitted that the role of the present applicant is clearly spetl-out from the papers of the chargesheet. It is submitted that it is true that after the promulgation of the provision of the GUJCTOC Act, 2 FIRs have been quashed by the Coordinate Bench of this Court, however for the purpose of invocation of the provision of the GUJCTOC, the ratio laid down by the Hon'ble Apex Court in case of Zakir Abdul Mirajkar Vs. the State of Maharashtra & Ors, delivered in Criminal Appeal No.1125 of 2022 would apply and number of offences have been registered against the members of the gang and after the promulgation of the provision of the GUJCTOC Act, 4 FIRs have been registered against one of the accused viz., Virendra @ Vicky Himmatray Dave and, therefore, Page 3 of 12 Downloaded on : Tue Dec 05 20:41:37 IST 2023 NEUTRAL CITATION R/CR.MA/16869/2023 ORDER DATED: 04/12/2023 undefined discretion may not be exercised in favour of the applicant - accused.
6. Learned APP submitted that the Investigating Officer has collected CDR of the present applicant
- accused, which clearly goes on to show that the present applicant - accused was in constant touch with the accused of the gang and they were indulged into the business of extortion by using their money and muscle power. It is, therefore, urged that considering the facts of the case, the present application may not be entertained.
7. In counter to the submissions made by learned APP, learned advocate for the applicant submitted that after the promulgation of the provision of the GUJCTOC, 4 offences have been registered against one of the co-accused and all those offences are personal in nature registered either under the Indian Penal Code and/or Gambling Act etc. and, therefore by no stretch of imagination, it can be said that the act, action and behavior of the said co-accused would fall under the category of the members of the gang and, therefore in absence of more than one offence registered against the applicant at the time of promulgation of the GUJCTOC Act, it can safely be said that the ingredients of Section 2(1)(c) of the GUJCTOC of the Act would not be satisfied at this juncture. It is also submitted that the co-accused have already been granted bail by the concerned court and, hence on the ground of parity, the applicant Page 4 of 12 Downloaded on : Tue Dec 05 20:41:37 IST 2023 NEUTRAL CITATION R/CR.MA/16869/2023 ORDER DATED: 04/12/2023 undefined may be granted bail. It is, therefore, urged that considering the facts of the present case, the present application may be allowed.
8. I have heard the learned advocates appearing on behalf of the respective parties and perused the papers of the investigation and considered the allegations levelled against the applicant and the role played by the applicant. It is found out from the record that for the so-called incident, which has taken place for the period between 22.07.2010 to 22.03.2021, FIR has been filed lodged on 22.03.2021 and the applicant accused has been arrested in connection with the said offence on 23.03.2021 and since then he is in judicial custody. The investigation is already completed and after submission of charge-sheet, present bail application is preferred.
9. It is also found out from the record available on record that against the applicant - accused, total 3 FIRs have been registered, however out of which, after the promulgation of the provision of the GUJCTOC Act, only 1 FIR has been registered against him, which has already been quashed by the Coordinate Bench of this Court and now only one offence is pending before the competent criminal court for final adjudication.
10. Before adverting to the issue involved in the present application, at this juncture, I would like to refer to the decision rendered by the Hon'ble Supreme Court in case of Sandip Omprakash Page 5 of 12 Downloaded on : Tue Dec 05 20:41:37 IST 2023 NEUTRAL CITATION R/CR.MA/16869/2023 ORDER DATED: 04/12/2023 undefined Gupta (supra), upon which reliance has been placed by learned advocate for the applicant. The Hon'ble Supreme Court has made observations in Paragraph No.42, which read as under,
42. We now proceed to look into the relevant observations made by this Court as contained in paras 9, 10 and 11 resply:
"9. It was in the above backdrop that the High Court held that once the respondents had been acquitted for the offences punishable under IPC and the Arms Act in Crimes Nos. 37 and 38 of 2001 and once the trial court had recorded an acquittal even for the offence punishable under Section 4 read with Section 25 of the Arms Act in MCOCA Crimes Nos. 1 and 2 of 2002, all that remained incriminating was the filing of charge-sheets against the respondents in the past and taking of cognizance by the competent court over a period of ten years prior to the enforcement of MCOCA. The filing of charge-sheets or taking of the cognizance in the same did not, declared the High Court, by itself constitute an offence punishable under Section 3 of MCOCA. That is because the involvement of the respondents in previous offences was just about one requirement but by no means the only requirement which the prosecution has to satisfy to secure a conviction under MCOCA. What was equally, if not, more important was the commission of an Page 6 of 12 Downloaded on : Tue Dec 05 20:41:37 IST 2023 NEUTRAL CITATION R/CR.MA/16869/2023 ORDER DATED: 04/12/2023 undefined offence by the respondents that would constitute "continuing unlawful activity". So long as that requirement failed, as was the position in the instant case, there was no question of convicting the respondents under Section 3 of MCOCA. That reasoning does not, in our opinion, suffer from any infirmity.
10. The very fact that more than one charge-
sheets had been filed against the respondents alleging offences punishable with more than three years' imprisonment is not enough. As rightly pointed out by the High Court commission of offences prior to the enactment of MCOCA does not by itself constitute an offence under MCOCA. Registration of cases, filing of charge-sheets and taking of cognizance by the competent court in relation to the offence alleged to have been committed by the respondents in the past is but one of the requirements for invocation of Section 3 of MCOCA. Continuation of unlawful activities is the second and equally important requirement that ought to be satisfied. It is only if an organised crime is committed by the accused after the promulgation of MCOCA that he may, seen in the light of the previous charge-sheets and the cognizance taken by the competent court, be said to have committed an offence under Section 3 of the Act.Page 7 of 12 Downloaded on : Tue Dec 05 20:41:37 IST 2023
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11. In the case at hand, the offences which the respondents are alleged to have committed after the promulgation of MCOCA were not proved against them. The acquittal of the respondents in Crimes Nos.37 and 38 of 2001 signified that they were not involved in the commission of the offences with which they were charged. Not only that the respondents were acquitted of the charge under the Arms Act even in Crime Cases Nos. 1 and 2 of 2002. No appeal against that acquittal had been filed by the State. This implied that the prosecution had failed to prove the second ingredient required for completion of an offence under MCOCA. The High Court was, therefore, right in holding that Section 3 of MCOCA could not be invoked only on the basis of the previous charge-sheets for Section 3 would come into play only if the respondents were proved to have committed an offence for gain or any pecuniary benefit or undue economic or other advantage after the promulgation of MCOCA. Such being the case, the High Court was, in our opinion, justified in allowing the appeal and setting aside the order passed by the trial court."
(Emphasis supplied)
11. The Hon'ble Supreme Court has also made observations in Paragraph No.51 of the said decision, more particularly, Ground (g), which Page 8 of 12 Downloaded on : Tue Dec 05 20:41:37 IST 2023 NEUTRAL CITATION R/CR.MA/16869/2023 ORDER DATED: 04/12/2023 undefined read as under,
51. If the decision of the coordinate Bench of this Court in the case of Shiva alias Shivaji Ramaji Sonawane (supra) is looked into closely along with other provisions of the Act, the same would indicate that the offence of 'organised crime' could be said to have been constituted by at least one instance of continuation, apart from continuing unlawful activity evidenced by more than one chargesheets in the preceding ten years. We say so keeping in mind the following:
(g) However, we need to clarify something important. Shiva alias Shivaji Ramaji Sonawane (supra) dealt with the situation, where a person commits no unlawful activity after the invocation of the MCOCA. In such circumstances, the person cannot be arrested under the said Act on account of the offences committed by him before coming into force of the said Act, even if, he is found guilty of the same. However, if the person continues with the unlawful activities and is arrested, after the promulgation of the said Act, then, such person can be tried for the offence under the said Act.
If a person ceases to indulge in any unlawful act after the said Act, then, he is absolved of the prosecution under the said Act. But, if he continues with the unlawful activity, it cannot be said that the State has to wait till, he commits Page 9 of 12 Downloaded on : Tue Dec 05 20:41:37 IST 2023 NEUTRAL CITATION R/CR.MA/16869/2023 ORDER DATED: 04/12/2023 undefined two acts of which cognizance is taken by the Court after coming into force. The same principle would apply, even in the case of the 2015 Act, with which we are concerned."
12. At this juncture, I would like to refer to the provisions of Section 2(1)(c) of the GUJCTOC Act, which provides as under:
"(c) "continuing unlawful activity" means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment for a term 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;"
13. Admittedly, in the present case, after the enactment of the GUJCTOC Act, 1 FIR has has been registered against the present applicant - accused and the said FIR has already been quashed by the Coordinate Bench of this Court. Therefore, without discussing anything on merits and demerits of the case and considering the ratio enunciated by the Hon'ble Apex Court in the aforesaid decision as well as the provisions of law incorporated in the statute and considering the period of incarceration undergone by the applicant accused which is more than 2 years and 8 months, I am Page 10 of 12 Downloaded on : Tue Dec 05 20:41:37 IST 2023 NEUTRAL CITATION R/CR.MA/16869/2023 ORDER DATED: 04/12/2023 undefined inclined to consider the present bail application.
14. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra Vs. Central Bureau of Investigation, reported in (2012) 1 SCC 40 as well as in case of Satender Kumar Antil Vs. Central Bureau of Investigation & Anr. reported in (2022)10 SCC 51.
15. In the facts and circumstances of the case and considering the nature of the allegations made against the applicant in the FIR, without discussing the evidence in detail, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.
16. Hence, the present application is allowed and the applicant is ordered to be released on regular bail in connection with FIR being C.R. No.11186009210108 of 2021 registered with Veraval Police Station, Gir-Somnath on executing a personal bond of Rs.15,000/- (Rupees Fifteen Thousand only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he shall;
[a] not take undue advantage of liberty or misuse liberty;
[b] not act in a manner injuries to the interest of the prosecution;
[c] surrender passport, if any, to the lower court within a week;
Page 11 of 12 Downloaded on : Tue Dec 05 20:41:37 IST 2023NEUTRAL CITATION R/CR.MA/16869/2023 ORDER DATED: 04/12/2023 undefined [d] not leave the State of Gujarat without prior permission of the Sessions Judge concerned; [e] mark presence before the concerned Police Station on alternate Monday of every English calendar month for a period of six months between 11:00 a.m. and 2:00 p.m.;
[f] furnish the present address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court;
17. The authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law.
18. At the trial, the trial Court shall not be influenced by the observations of preliminary nature qua the evidence at this stage made by this Court while enlarging the applicant on bail.
19. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
Sd/-
(DIVYESH A. JOSHI, J.) Gautam Page 12 of 12 Downloaded on : Tue Dec 05 20:41:37 IST 2023