Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(SC) 769

SUPREME COURT OF INDIA
(From the High Court of Judicature at Bombay)
M.R. Shah, Sanjiv Khanna, JJ.
The State of Maharashtra - Appellant
Versus
Pankaj Jagshi Gangar – Respondent
Criminal Appeal No.1493 of 2021
Decided On : 03-12-2021

Advocates appeared:
For the Appellant(s) :Sachin Patil, Rahul Chitnis, Aaditya A. Pande, Geo Joseph, Advocates
For the Respondent(s):Aditya Verma, Advocates

IMPORTANT POINTS
(1) Bail cannot be granted by way of interim relief in grave offences.
(2) Quashing and setting aside wrong order releasing accused on bail and to cancel bail of accused on misuse of liberty etc., both stand on different footing and different criteria shall be applicable.

Headnote:
Criminal Procedure Code, 1973 – Section 439 – Maharashtra Control of Organised Crime Act, 1999 – Sections 21(4) and 23(1)(a) – Grant of bail by way of interim relief – Allegations against respondent-accused are very serious in nature (Under Sections 384, 386, 387 read with Section 34 of IPC) – On considering material on record investigating agency has invoked provisions of MCOCA – After investigation a charge-sheet has been filed against accused for offences under IPC as well as under MCOCA – By impugned order, Division Bench of High Court has released accused on bail that too by way of interim relief – Division Bench ought not to have released accused on bail by way of interim relief – While releasing accused on bail that too by way of interim relief High Court has not at all considered seriousness of offences alleged against accused – Virtually, High Court has acquitted accused for offence under the MCOCA at interim relief stage and has granted final relief at interim stage exonerating respondent from MCOCA, which is wholly impermissible – Present is a glaring example of forum shopping by accused which cannot be approved at all – Accused is not entitled to be released on bail – Quashing and setting aside wrong order releasing accused on bail and to cancel bail of accused on misuse of liberty etc., both stand on different footing and different criteria shall be applicable – It is not a question of cancellation of bail but it is a question of quashing and setting aside wrong order passed by court releasing accused on bail – Impugned order granting bail set aside. (Paras 9, 9.1, 9.2, 10 and 11)
Facts of the case:
Feeling aggrieved and dissatisfied with the impugned order dated 29.01.2019 passed by Division Bench of the High Court of Judicature at Bombay in Criminal Writ Petition No. 4639 of 2018 by which the Division Bench by way of an interim relief directed the respondent herein – accused be released on bail in Special MCOC No.24 of 2017 arising out of C.R. No.I190 of 2017, State of Maharashtra has preferred present appeal.
Findings of Court:
Respondent – accused is directed to surrender forthwith and to face the trial. If the respondent does not surrender forthwith, his presence be secured by concerned Court by issuing non-bailable warrant.
Result : Appeal allowed.

Judgement Key Points

Key Points: - The High Court’s interim bail in a grave MCOCA offence was held improper; such interim relief cannot substitute final relief and requires quashing the bail order and directing surrender (!) (!) . - Quashing and setting aside a wrong bail order and cancelling bail for misuse of liberty are distinct remedies with different criteria; interim relief cannot exonerate MCOCA offences at that stage (!) (!) . - The decision reiter emphasizes forum shopping: releasing on interim relief after withdrawal of a bail application before Single Judge is improper and cannot be approved (!) (!) (!) . - The Court cited Neeharika Infrastructure and Neeharika decisions establishing that interim bail cannot be used to effectively acquit or grant final relief; such interim relief must be avoided in MCOCA contexts (!) . - The State’s appeal succeeds; the impugned order releasing on bail is quashed and the respondent must surrender to face trial (!) . - The judgment highlights that gravity of offences and existence of charge sheet and MCOCA invocation require cautious handling; interim bail cannot set aside sanction or prior approval at an interim stage (!) (!) .

What is the proper remedy when a High Court diverts to interim bail in a grave MCOCA offence—whether such interim relief can be granted and under what criteria?

What are the correct criteria and scope for quashing a wrongful bail order and canceling bail where interim relief has improperly released an accused, and how does this relate to forum shopping and prior sanctions?

What is the propriety of releasing an accused on interim bail in MCOCA cases where a charge sheet has been filed and sanctions/approvals are challenged or found defective?

JUDGMENT :

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned order dated 29.01.2019 passed by the Division Bench of the High Court of Judicature at Bombay in Criminal Writ Petition No. 4639 of 2018 by which the Division Bench by way of an interim relief directed the respondent herein – accused be released on bail in Special MCOC No.24 of 2017 arising out of C.R. No.I-190 of 2017, registered with Kasarvadavli Police Station, the State of Maharashtra has preferred the present appeal.

2. At the outset, it is required to be noted that the present is a glaring example of fourm shopping by the accused which cannot be approved at all. The facts speak for itself, which are as under :-

2.1 That an FIR was registered as C.R. No.I-190 of 2017 for the offences under Sections 384, 386, 387 read with Section 34 of the IPC against three named accused persons namely Iqbal Ibrahim Kaskar, Israr Jamil Sayyed and Mumtaz Ejaj Shaikh @ Raju. The case on behalf of the prosecution has been elaborately dealt with and considered by the learned Special Judge (MCOC), Thane, in his order dated 26.03.2018, passed below Exh. 15 in MCOC No.24 of 2017, by which the learned Special Judge rejected the application submitted by the respondent herein for bail and therefore the same is not repeated. However, it is to be noted that during the course of the investigation, it was found that there is organized crime by international gangster Shakil Babu Mohiddin Shaikh @ Chhota Shakil @ C.S. and Iqbal Ibrahim Kaskar @ Iqbal Hasan Shaikh Ibrahim and it was also found that from time to time, the respondent herein was paying the amount to such organized crime syndicate and other gangs which they used to use the said amount for taking help of other members by paying amount to them and it was also found that the respondent herein is running the Matka business in Borivali, Mumbai, after prior sanction the provisions of Maharashtra Control of Organised Crime Act (MCOCA) came to be applied. After investigation a charge sheet was submitted under the provisions of the IPC as well as under the MCOCA. The respondent herein – accused filed the bail application before the learned Special Judge. By a detailed and reasoned judgment and order and after considering the statements relied upon by the prosecution which are part of the charge sheet, the learned Special Judge rejected the said bail application vide order dated 26.03.2018.

3. Feeling aggrieved and dissatisfied with the rejection of the bail application by the learned Special Judge, the respondent herein – accused approached the High Court by way of bail application No.855 of 2018. The same was heard by the learned Single Judge. From the order dated 13.07.2018 passed by the learned Single Judge, it appears and it cannot be disputed that after hearing the learned counsel appearing on behalf of the respondent herein - accused at length and when the High Court was not inclined to grant any relief, the learned counsel on instructions withdrew the said bail application. Therefore, the aforesaid bail application came to be dismissed as withdrawn by the learned Single Judge vide order dated 13.07.2018. Immediately on withdrawal of the aforesaid bail application the respondent – accused filed the writ petition before the Division Bench of the High Court and prayed for the following reliefs:

(b) Strike down the provision of Section 21(4) of MCOCA and declare the twin conditions imposed for release on bail, as encapsulated th

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