Back
High Court of Judicature at Bombay
ABHAY M. THIPSAY, J.
Shamil Saquib Nachan
Versus
The State Of Maharashtra
Criminal Bail Application No.512 of 2013
Decided on : 06-05-2013
Since phrase "reasonable grounds", imports a lesser degree of satisfaction, hence it should not be confused with phrase "sufficient ground". - For enabling the Court to exercise its discretion in favour of a person accused of having committed an offence punishable under the M.C.O.C. Act, what is required is existence of reasonable grounds for believing that the applicant before the Court is not guilty of an organized crime. The satisfaction that the "accused is not guilty" is not contemplated by the relevant provisions and what is required is the satisfaction that there are reasonable grounds for believing the accused to be not guilty. Again, the phrase "reasonable grounds" should not be confused with the phrase "sufficient grounds". It imports a lesser degree of satisfaction than "sufficient grounds." It cannot be lost sight of that the Special Court would be entitled to discharge an accused if it considers that there is no sufficient ground for proceeding against the accused. If the Court forms an opinion, that there is ground for presuming that accused has committed an offence punishable under the M.C.O.C. Act, a charge shall be framed against the accused. This is clear from the provisions of Section 9(4) of the M.C.O.C. Act, read with Sections 227 and 228 of the Code of Criminal Procedure. It cannot - even remotely - be suggested that the special provisions regarding grant of bail in the M.C.O.C. Act are to be interpreted in such a manner, so as to mean that it is only when - there would be no sufficient grounds for proceeding against an accused, that he shall be released on bail. If such a view is taken, no person who has been granted bail, can even be proceeded against, in respect of an offence punishable under the M.C.O.C. Act. Rather, there would be no question of granting bail, and an accused would be discharged at that stage itself. Since this is not intended or contemplated while enacting the relevant provisions regarding bail, the special provisions are to be interpreted by keeping in mind that the phrase "reasonable grounds for believing that he is not guilty of such offence" cannot be so construed as to make it irreconcilable with the existence of ground for presuming that he has committed such offence.
Maharashtra Control of Organised Crime Act, 1999 - Section 21(4) - Cr PC, 1973, Section 437 - Grant of bail.
When case relates to offence punishable under Special Act, a little deeper probe into matter required to be done of stage of grant if bail.
Maharashtra Control of Organised Crime Act, 1999 - Section 21(4) - Unlawful Activity Act, 1967, Section 43- D - Grant of bail.
Existence of reasonable grounds to believe that applicant not guilty of organized crime and terrorist act, entitled applicant to grant of bail. - The restrictive provision under Section 43-D of the U.A.P. Act with respect to the grant of bail is not similar to the one contained in the M.C.O.C. Act, and has been worded differently. It contemplates that a person accused of having committed an offence punishable under Chapter IV and Chapter VI of the U.A.P. Act shall not be released on bail if there are reasonable grounds for believing that the accusation against such person is prima facie true. Perhaps, this phrase puts a greater restriction on the powers of the Court than is put by the aforesaid provision of the MCOC Act. However, inspite of the difference in the phraseology there would be no basic difference in the practical application of these provisions. All that these provisions lay down is that a person arrested on the accusation of having committed the offence contemplated by the said provisions should not be released on bail, if there would be a prima facie case of such offence against him. If a rational and reasonable doubt is felt in that regard, then the Court would not be precluded from granting bail even in such cases. Moreover, judging the existence of a prima facie case at the stage of bail, would not be the same as judging the existence of a prima facie case for proceeding against an accused by framing a Charge.
It is too obvious that an accused would never be required to put forth a stronger case for bail, than that would be required for a discharge. The tests that are applied at the time of bail cannot be as rigorous as are applied while considering the discharge of an accused from a particular case. The position as to when an accused can be discharged has not been changed by the Legislature in cases of the offences punishable under the M.C.O.C. Act and the U.A.P. Act, inspite of introducing provisions curtailing the discretion of the Court in the matter of grant of bail - although only in the event of the application being opposed by the Public Prosecutor.
1. The applicant is one of the six accused in M.C.O.C. Special Case No.10 of 2012, pending before the Special court under the Maharashtra Control of Organized Crime Act (hereinafter referred to as M.C.O.C. Act), Thane. The said case is in respect of offences punishable under Sections 120B, 153A, 307 of the Indian Penal Code (IPC), offences punishable under the Arms Act, apart from the offences punishable under Sections 3(1) (ii), 3(2) and 3(4) of the M.C.O.C. Act. Additionally, the applicant and the other accused are alleged to have committed offences punishable under Sections 16 and 18 of the Unlawful Activities (Prevention) Act, 1967, as amended till 2008 (hereinafter referred to as U.A.P. Act). By the present application, the applicant seeks bail.
2. I have heard Ms.Rebecca Gonsalves, the learned counsel for the applicant, and Mr.A.S.Gadkari, the learned APP for the State. With the assistance of the learned counsel, I have gone through the bail application, the annexures thereto, and all the relevant parts of the charge-sheet. I have also been taken through the affidavit filed by the Investigating Officer for opposing the grant of bail.
3. The prosecution case has been described in Column No.16 of Form 5E of the printed prescribed proforma of the charge-sheet. In brief, it can be described as follows:
The first informant Manoj Raicha, Advocate, is an active member of the VishwaHindu Parishad, and GowvanshSaurakshan Samiti. He had, in the past, got the cattle brought in Bhiwandi for Qurbanion the occasions of Muslim religious festivals, taken charge of and sent to Gowshala. The accused no.1 Saquib Nachan, therefore, formed a belief that Mohan Raicha was doing injustice on Muslims and entertained grudge against him. He had given threats to Manoj Raicha in the year 2011 in the court campus itself. Because of this grudge, the accused no.1 Saquib Nachan conspired with other accused, namely, accused no.2 Guddu alias Mohammad Hafiz Khan, accused no.3 Shamil Saquib Nachan i.e. the applicant, accused no.4 Akif Atik Nachan, accused no.5 Tanveer Abdul Majid Zamindar and accused no.6 Abu Bakar Rashid Shaikh. In pursuance of the conspiracy, the accused no.6 Abu Bakar, fired at Manoj Raicha on 3.8.2012, causing injury to his shoulder, by a bullet.
4. How the incident which gave rise to this case, took place and how the investigation commenced, can be ascertained from the First Information Report (FIR). The facts, as narrated by Manoj Raicha, in FIR, are to the effect that on 3.8.2012, while he was travelling by his car, with his armed police bodyguard Achrekar – Police Constable No.3901 – three shots were fired at him from a fire arm. One bullet grazed his right upper arm. His bodyguard got down from the car, but could not see any one. Thereafter, Manoj and his bodyguard Achrekar, came to the police station and lodged a report on the basis of which, a case was registered in respect of offences punishable under Sections 307, & 120B of the IPC and offences punishable under the Arms Act, at Nizampur Police Station, Bhiwandi. The investigation was then transferred to Crime Branch Bhiwandi, under the orders of Commissioner of Police, Bhiwandi, Thane, and thereafter, the provisions of Section 153A of IPC were added to the original FIR. In the course of investigation, it was revealed to the Investigating Officer that the attack on Manoj Raicha was a “part of larger conspiracy” and that the same was carried out at the instance of the accused no.1 Saquib Nachan. It was also revealed to be an act of an organized crimes syndicate. In the course of further investigation, it was also revealed that it was a “terrorist act” as contemplated under Section 15 of the U.A.P. Act, 1967.
5. Ms.Rebecca Gonsalves, the learned counsel for the applicant contended that the investigation is not at all sincere. She contented that no case of an offence punishable under the M.C.O.C. Act and / or the U.A.P. Act is made out. She submitted that, in any eve
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
