A person can only be prosecuted under the MCOC Act if they actively or passively participated in a specific offense, and not solely for being a member of a gang.

These two Bail Applications are heard and decided together, as both the applicants/accused are involved in the same offence in C.R. No. 170 of 2012 punishable under sections 395 and 201 of the Indian Penal Code, sections 4, 27 of the Arms Act and under section 3(1)(4) of the Maharashtra Control of Organized Crime Act, 1999.

2. It is the case of the prosecution that these two applicants belong to a gang headed by Santosh @ Lubhya Chandilkar. On 31st October, 2012 at around 7.30 a.m., complainant was travelling on Highway from Pune to Mandangad in his Ford Figo Car bearing no. MH20/B.Y./1405 and when he reached near Village Adarwadi, co-accused nos. 1 to 5 arrived there at Honda City car and stopped the car of the complainant. They were armed with sickle and axe. They pulled the complainant out of the car and threatened him of the weapons. They robbed laptop, cell phone, cash of Rs.15,000/- and car of the complainant. Thus, they took away articles valuing Rs.2,27,000/-. During the course of the investigation, the police found that co-accused 1 to 5 are members of gang headed by Santosh @ Lubhya Chandilkar. Applicants/accused are also the members of said gang. It is the case of prosecution that all these gang members are continuously involved in unlawful activity of robbery and assault during last 5 to 6 years and they have jointly committed total 29 offences. Therefore, Santosh alias Lubhya Chandilkar along with his other associates including applicants/accused were also made accused in C.R. No. 170 of 2012. The police moved an application for invoking MCOC Act and on 26th February, 2013 MCOC Act was applied. Thereafter, accused Mangesh was shown arrested on 14th March, 2013 and accused Navanath on 18th March, 2013. Hence these Bail Applications.

3. The learned counsel for the applicants/accused have submitted that both the applicants/accused are not involved in this crime of robbery. They were in the prison at the relevant date. The learned counsel Mr. Kotwal submitted that applicant Mangesh was inside the prison from 19th March, 2012 in some other offence and the learned counsel Mr. Yende submitted that applicant Navanath was in prison since 23rd September, 2012. It is submitted that only because the applicants/accused are allegedly associated with gang of Santosh @ Lubhya Chandilkar and there are criminal antecedents against the applicants/accused, their bail was rejected by the learned Sessions Judge. The learned counsel for the applicants/accused submitted that learned Sessions Judge in fact has released Vijay Khawale/accused no. 9 and Ganesh Buchade/accused no. 8 on bail though they were having criminal antecedents. The learned counsel further submitted that the prosecution ought not have roped the applicants/accused in the present crime. The learned counsel further submitted that while invoking MCOC Act against the applicants/accused, the prosecution has committed mistake of erroneous interpretation of the legal terms, i.e., continuing unlawful assembly and member of organized crime.

4. Learned APP vehemently opposed the Bail Applications. He submitted that the applicants/accused are hardcore criminals and members of Santosh @ Lubhya Chandilkar. 13 cases are pending against applicant Mangesh and 6 cases are pending against applicant Navanath. The offences are of similar nature and they are the members of the gang headed by Santosh @ Lubhya Chandilkar. He further submitted that the gang has been involved in continuing unlawful activity and nearly 29 offences have been committed by the members of the gang, therefore, MCOC Act is invoked and they are rightly prosecuted under section 3(1) (4) of MCOC Act. Learned APP further relied on Section 21(4) of MCOC Act. He submitted that there is bar on granting bail if accused is facing charges under MCOC Act. He submitted that under section 21(4) of the Act, the Judge has to satisfy himself that if an offender is released on bail, there are restriction on the Court to grant b