Karan S/O. Ranjit Paropate vs The State Of Maharashtra Thr. Police ... on 6 April, 2018

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Bombay High Court

Karan S/O. Ranjit Paropate vs The State Of Maharashtra Thr. Police ... on 6 April, 2018

2 Rule. Rule is made returnable forthwith with consent. ::: Uploaded on - 06/04/2018 ::: Downloaded on - 08/04/2018 01:44:00 ::: 2 3 Heard Ms. Ankita Sarkar holding for Mr. P.R. Agrawal and Mr. N.H. Jawade, the learned Additional Public Prosecutor for respondents.

4 The petitioner is assailing the order dated 20.9.2017 passed by the learned Special Judge (MCOCA) and Additional Sessions Judge, Amravati in Crime 437 of 2017 allowing the application of the Investigating Agency and thereby cancelling the bail granted to the petitioner - accused in Misc. Criminal Application 282 of 2017.

5 Factual matrix:-

The petitioner was arrested by Police Station Yavatmal on

6.7.2017 in Crime 437 of 2017 for offence punishable under section 307, 364-A, 365, 397, 120-B of the Indian Penal Code and under section 3 and 4 read with section 25 of the Arms Act. The petitioner was released on bail by and under order dated 14.8.2017 passed by Additional Sessions Judge, Yavatmal in Misc. Criminal Application 282 of 2017.

6 The affidavit in reply of the State and the ::: Uploaded on - 06/04/2018 ::: Downloaded on - 08/04/2018 01:44:00 ::: 3 Investigating Officer asserts that during investigation, it was revealed that the petitioner is a member of organized crime syndicate led and controlled by co-accused Akshay Rathod. The Investigating officer accordingly sought permission to register offence under the Maharashtra Control of Organized Crime ("MCOC") Act which was granted by the Special Inspector General of Police, Amravati Range, Amravati on 23.8.2017. Offences under section 3(1)(ii), 3(2) and 3(4) of the MCOC Act were additionally registered against six accused in Crime 437 of 2017 including the petitioner.

7 The Investigating officer, pursuant to permission granted by the competent authority under the MCOC Act filed the charge sheet on 8.12.2017 before the Special Judge. The Investigating Officer moved an application before the Special Court seeking cancellation of bail in view of the registration of offences under the MCOC Act. This application is allowed by the order impugned.

8 The main thrust of the submission of learned counsel Ms. Ankita Sarkar is that the learned Special Judge fell in serious error in cancelling the bail mechanically only on the ground that ::: Uploaded on - 06/04/2018 ::: Downloaded on - 08/04/2018 01:44:00 ::: 4 offences under the MCOC Act are additionally registered against the petitioner. The learned counsel Ms. Ankita Sarkar made a serious endeavor to demonstrate that the provisions of MCOC Act are not attracted since the only crime registered against the petitioner is Crime 437 of 2017. Ms. Sarkar invites my attention to the provisions of Section 2(1)(d) of the MCOC Act which defines "continuing unlawful activity" to buttress her submission. Ms. Sarkar, the learned counsel would submit that cancellation of bail is a serious issue and at stake is the liberty of the petitioner which can be curtailed only by adhering to due process of law. Ms. Sarkar would submit that cancellation of bail only on the ground that offences under MCOC Act are additionally registered subsequent to the order of bail impinges upon the constitutional rights of the petitioner guaranteed under Articles 14 and 21 of the Constitution.

9 Per contra, Mr. N.H. Joshi, the learned Additional Public Prosecutor states that the accused in Crime 437 of 2017 abducted the complainant, and after subjecting him to brutal assault snatched 27 gram gold chain, a gold ring, ATM card, Aadhar Card and cash. Due to the brutal assault the complainant become unconscious and was admitted to Critic Care Hospital, ::: Uploaded on - 06/04/2018 ::: Downloaded on - 08/04/2018 01:44:00 ::: 5 Yavatmal and was then shifted to Life Care Hospital, Nagpur. On the basis of First Information Report lodged on 2.6.2017, offences punishable under section 307, 364-A, 365, 397, 120-B of the Indian Penal Code and under section 3 and 4 read with section 25 of the Arms Act were registered against the accused including the petitioner. During the course of the investigation, petitioner was arrested on 6.7.2017. In the interregnum, on 4.7.2017 offences punishable under section 3 and 25 of the Arms Act were registered against the petitioner and one Roshan Gole at Police Station Lohara vide Crime 21 of 2017. One pistol was recovered at the instance of the petitioner and it is revealed that the said pistol was given to the petitioner by the leader of the organized crimes syndicate Akshay Rathod. One vehicle Sumo Grand bearing registration number MH 29-V-2938 belonging to the sister of the leader of the organized crime syndicate Akshay was also seized from the petitioner. The affidavit in reply asserts that one witness was threatened by the petitioner. The further assertion is that the custody of the petitioner is necessary to ascertain the details of the property and the source of income of the petitioner. 10 This Court, by order dated 8.11.2017 stayed the effect and operation of the order impugned. The interim order was ::: Uploaded on - 06/04/2018 ::: Downloaded on - 08/04/2018 01:44:00 ::: 6 modified by order dated 12.3.2018, paragraph 5 of which order reads thus:

"5 In the interregnum, the interim order of this Court shall stand modified. While the petitioner shall continue to be protected from arrest, he shall remain present at Yavatmal City Police Station from 13.3.2018 from

11.00 a.m. to 6.00 p.m. every day without fail till the petition is heard after two weeks. The petitioner is put on notice that any breach of this order shall ipso facto lead to withdrawal of the protection from arrest". The brother of the petitioner has however filed an affidavit dated 25.3.2018 that during the pendency of the petition, petitioner was arrested in Crime 28 of 2018 on 23.2.2018 and since then he is in judicial custody. The affidavit reveals that Crime 28/2018 is registered at Police Station Mangrul Dastagir for offence punishable under section 143, 385, 436, 323 and 507 read with section 34 of the Indian Penal Code. Ms. Sarkar submits that she was not aware of the arrest of the petitioner on 23.2.2018 when this Court passed the order dated 12.3.2018. 11 In Sarang Arvind Goswami Vs. State of Maharashtra, 2005(3)Mh. L.J. 774 a learned Single Judge of this Court observes thus:

"8. Relying on the aforesaid judgments, it is contended that in the present case, the prosecution was aware about the pending criminal cases against the applicant and that ::: Uploaded on - 06/04/2018 ::: Downloaded on - 08/04/2018 01:44:00 ::: 7 material was not relied upon on the earlier occasion, If it is so, it cannot be made basis for cancellation of bail. It is contended that offence under provisions of MCOC Act is invoked mainly on the basis of the offences already registered against the applicant of which cognizance is taken by the Court of competent jurisdiction. Accordingly, as the MCOCA offence is founded on past criminal record of the applicant, that cannot be the basis to cancel the bail operating in favour of the present applicant.

9. The argument, though attractive at the first blush, in my opinion, is devoid of substance. In the present case, the applicant has been arrested in connection with the C. R., which was originally registered for offences under Indian Penal Code and Arms Act, which is the ordinary law. The applicant was ordered to be released on bail by order dated 4th February, 2005 before filing of the chargesheet and investigation was in progress. It is not necessary to go into the justness of the reasons recorded by the Lower Court in ordering release of the applicant on bail. Incidentally, it may be mentioned that the court has observed that investigation is already completed and the presence of the applicant was no more required by the police for the purpose of investigation and that the weapons in questions were already recovered from the accused. The fact that earlier C.Rs. were already registered against the applicant, though according to the Public Prosecutor was brought to the notice of the concerned Judge, is not adverted to in the impugned order while releasing the applicant on bail. In that sense, it is possible to proceed on the basis that the relevant material which was available was not considered on the earlier occasion while bail was granted to the applicant. In this backdrop, it is contended on behalf of the applicant that the material which was otherwise available to the prosecution and not produced, that cannot be the basis for cancellation of bail. This submission overlooks the fact that the offence which has been added to the pending C.R. against applicant is under the special enactment namely, M.C.O.C. Act. The said offence could be registered by the police only after formal approval is given by the competent authority. Proposal to give such formal approval was moved by the investigating ::: Uploaded on - 06/04/2018 ::: Downloaded on - 08/04/2018 01:44:00 ::: 8 agency only on 4th February, 2005. The applicant was already ordered to be released on bail before the proposal for formal approval was accorded. The applicant was directed to be released on bail by order dated 4th February, 2005, whereas the formal approval for recording information regarding offences under provisions of M.C.O C. Act was granted by the Competent authority on 10th February, 2005. It is only upon grant of such formal approval that the offence under MCOC Act could be registered and investigated into and not otherwise. This is obviously a subsequent development which can be and ought to be considered by the court for cancellation of bail. The fact that the offences under the provisions of MCOCA are founded on the previous offences will make no difference. Be that as it may, one more offence has been registered against the applicant on 21st February, 2005 with the Bund Garden Police Station, Pune. Accordingly, the prosecution approach the Court for cancellation of bail by a formal application on 25th February, 2005 on the assertion that now provisions of M.C.O.C. Act have been applied against the applicant, as a consequence of which the bail in favour of the applicant relating to the offences under Indian Penal Code and Arms Act will be of no avail. Instead the applicant will have to be taken into custody in relation to the newly registered offence under M.C.O.C. Act. And the applicant can be released on bail only if the applicant was to satisfy the rigours of the provisions of the Special enactment. This stand of the prosecution has found favour with the Sessions Court as cam be seen from the order which is impugned in this application. If this is the course adopted in the present case, in my opinion, it is not only because of the subsequent development which has come on record but also by necessity of law, in view of the stringent provisions of M.C.O.C. Act. It is not in dispute that although the order of bail was granted in favour of the applicant but admittedly, he has not availed of that bail and that he is in custody in connection with some other offence".

12 In Vijendra Molchand Kuril Vs. State of Maharashtra and another - Criminal Application 7 of 2016 ::: Uploaded on - 06/04/2018 ::: Downloaded on - 08/04/2018 01:44:00 ::: 9 decided on 12.9.2017 relying on Sarang Arvind Goswami Vs. State of Maharashtra the learned Single Judge observes thus:

"24 n my view, the prosecution has rightly applied for cancellation of bail by approaching to the Court by moving an application dated 26.11.2015 on assertion that the provisions of the MCOC Act have been applied against the present applicant. As a consequence of which, the bail granted in favour of the applicant, relating to the offences under the Indian Penal Code, will be of no avail. In view of invocation of the provisions of the special enactment, the prosecution was having a right to take the applicant into custody in relation to the newly registered offences under the MCOC Act and as observed by this Court in Sarang Arvind Goswamy's case cited supra, the applicant can be released on bail only if the applicant was to satisfy rigours of the provisions of the special enactment.

25. In view of the provisions of the MCOC Act, being made against the present applicant, in my view learned Judge of the Court below has not committed any wrong in cancelling the bail. Consequently, the present application is required to be dismissed and accordingly it is dismissed and the interim orders granted by this Court on 8.1.2016 shall cease to operate immediately. The applicant is directed to surrender before the law immediately. Else, the investigating officer is free to cause arrest of the applicant in the said crime".

MCOC Act is a special enactment with the avowed object of preventing and controlling and coping with criminal activities by organized crime syndicate or gang and for matters connected therewith or incidentally thereto. In furtherance of the object of the enactment, section 21(3) interalia provides that nothing in section 438 of the Criminal ::: Uploaded on - 06/04/2018 ::: Downloaded on - 08/04/2018 01:44:00 ::: 10 Procedure Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under the MCOC Act. Similarly, sub section (4) mandates that no person accused of offence punishable under section MCOC Act shall be released on bail unless the Public Prosecutor has been given an opportunity to oppose the application of such release; and where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

Sub-section 5 and 6 of Section 21 of MCOC Act read thus:

Notwithstanding anything contained in the Code, the accused shall not be granted bail if it is noticed by the Court that he was on bail in an offence under this Act, or under any other Act, on the date of the offence in question. The limitations on granting of bail specified in sub-section (4) are in addition to the limitations under the Code or any other law for the time being in force on the granting of bail.

13 It is axiomatic that the entitlement to bail is ::: Uploaded on - 06/04/2018 ::: Downloaded on - 08/04/2018 01:44:00 ::: 11 subject to the accused satisfying the rigors of the provisions of section 21 of the MCOC Act.

14 In the light of the discussion supra, I do not find any infirmity in the order of cancellation of bail. Needless to state, that the petitioner is at liberty to apply for bail to the Special Court, which application if moved is bound to be considered by the Special Court on its own merits keeping in view the provisions of the MCOC Act.

15 The petition is sans merit and is rejected.

JUDGE RS Belkhede, PA ::: Uploaded on - 06/04/2018 ::: Downloaded on - 08/04/2018 01:44:00 :::

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