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SECOND POINT:-

Whether the satisfaction can be recorded in favour of the Applicant with respect to twin conditions as envisaged in 518-BA-680-2023-F (J).doc Section 21(4) of the MCOC Act?

26. Before considering the rival submissions, it is necessary to set out Section 21(4) of the MCOC Act which is concerning grant of bail when the offence is under the MCOC Act.

"21. Modified application of certain provisions of the Code.

(Emphasis added) 518-BA-680-2023-F (J).doc

31. Thus, it is incumbent on the part of the Court before granting of bail to any person accused of an offence punishable under MCOC Act, to record satisfaction that there are reasonable grounds for believing that the Applicant is not guilty of such offence and that the Applicant is not likely to commit any offence while on bail. It has been reiterated by the Supreme Court in Vishwanath Maranna Shetty (supra) that recording of satisfaction on both the aspects mentioned in clauses (a) and (b) of Sub-Section 4 of Section 21 of the MCOC Act is conditio sine qua non for granting bail under MCOC Act.

38. It is true that by said Order dated 10th August 2022, the learned Additional Sessions Judge, Ichalkaranji has granted bail to the Accused No.3-Aniket Subhash Badave and in paragraph No.10 of the said Order it is observed as follows:

"10. The chargesheet of C.R. No.577/2021 disclose that this is the first chargesheet against the applicant/accused no.3. Hence there is no 'continuing unlawful activity' of applicant/accused no.3 within the meaning of section 2(d) of MCOC Act. Hence prima facie offence of organized crime 518-BA-680-2023-F (J).doc punishable under section 3(1)(i), (ii), (2) and (4) of MCOC Act is not made out against the applicant/accused no.3. Hence the restrictions under Section 21(4) & 5 of MCOC Act for grant of bail under section 439 of the Cr.P.C. are not obstacles so far as applicant/accused no.3. is concerned."

(Emphasis added)

39. The above observations of the learned Additional Sessions Judge are contrary to the settled law as discussed in earlier part of this Judgment. In Govind Sakharam Ubhe (supra), it has been specifically held that the words "more than one charge-sheet" contained in Section 2(1)(d) of the MCOC Act refer to unlawful activities of the organised crime syndicate and therefore, requirement of more than one Charge- sheet is qua the unlawful activities of the organised crime syndicate and not qua the individual member thereof. What is important is the nexus or the link of the person with the organised crime syndicate. The link with the 'organised crime syndicate' is the crux of the term 'continuing unlawful activity'. If this link is established, then provisions of MCOC Act can be invoked. The Supreme Court in Zakir Abdul Mirajkar (supra) in paragraph No.79 has held that persons who are alleged to be members of an organised crime syndicate need not have more than one Charge-sheet filed against them in an individual capacity. Rather, Charge-sheets with respect to the organised crime syndicate are sufficient to fulfil the condition in Section 2(1)(d) of the MCOC Act. Thus, the Order of the learned Additional Sessions Judge granting bail 518-BA-680-2023-F (J).doc to co-Accused No.3-Aniket Subhash Badave is contrary to the settled law. The material on record clearly shows that there is a nexus or a link of the Accused No.3-Aniket Subhash Badave with an organised crime syndicate operating in the name and style as 'german gang' of which Accused No.1-Abhishek Tarane is the gang leader and therefore, provisions of MCOC Act are attracted to this case. Thus, while granting bail, the Court is required to record satisfaction with respect to the twin conditions as contained in Section 21(4) of the MCOC Act. Thus, the learned Additional Sessions Judge is not right in observing that restrictions under Sub-Sections 4 and 5 of Section 21 of the MCOC Act for grant of bail under Section 439 of the CrPC are not obstacles insofar as Accused No.3 is concerned.