1. Bail application in murder case with offences under MCOCA Act for organized crime allegations. (Para 1 , 2 )
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2022 Supreme(Online)(Bom) 9755
BOMBAY HIGH COURT - BENCH AT AURANGABAD
S.G. Mehare, J
Uttam Mahajan Ghunawant – Appellant
Versus
State of Maharashtra – Respondent
BAIL APPLICATION NO.1103 OF 2022|BAIL APPLICATION NO. 584 OF 2022|BAIL APPLICATION NO.1286 OF 2022
Important Points
Eliminating a business competitor for monetary gain qualifies as 'organized crime' under MCOCA. Bail can be refused if the accused's activities cause industrial unrest (insurgency) or if their role is significantly more severe than co-accused who received bail.
Subject
Criminal Law - Bail Application
Act Referred
Indian Penal Code: S.302, S.307, S.120-B, S.147, S.148, S.149
Indian Arms Act: S.3/25
Maharashtra Control of Organized Crime Act, 1999: S.3(1)(i), S.3(2), S.3(4), S.18
Code of Criminal Procedure: S.164
Indian Arms Act: S.3/25
Maharashtra Control of Organized Crime Act, 1999: S.3(1)(i), S.3(2), S.3(4), S.18
Code of Criminal Procedure: S.164
Headnote
(A) Maharashtra Control of Organized Crime Act (MCOCA) - Organized Crime - Pecuniary Benefit - Elimination of a business competitor in the labour supply industry to secure more contracts constitutes an objective of gaining pecuniary benefit or undue economic advantage, attracting the provisions of MCOCA. (Para 9)
(B) Bail - Organized Crime - Refusal - Activities creating industrial unrest or frightening employees, leading to indirect unemployment, may be construed as insurgency, providing a valid ground for refusal of bail under MCOCA. (Para 10)
(C) Bail - Parity - Distinction in Role - Parity cannot be claimed when the role attributed to the applicants (direct assault/threats) is distinct from the role of a co-accused who was granted bail for a lesser role (driving a vehicle). (Para 11)
Issues: Whether the applicants are entitled to bail considering the nature of organized crime and the specific roles attributed to them under the MCOCA Act.
(B) Bail - Organized Crime - Refusal - Activities creating industrial unrest or frightening employees, leading to indirect unemployment, may be construed as insurgency, providing a valid ground for refusal of bail under MCOCA. (Para 10)
(C) Bail - Parity - Distinction in Role - Parity cannot be claimed when the role attributed to the applicants (direct assault/threats) is distinct from the role of a co-accused who was granted bail for a lesser role (driving a vehicle). (Para 11)
Issues: Whether the applicants are entitled to bail considering the nature of organized crime and the specific roles attributed to them under the MCOCA Act.
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
Advocates:
For the Appellants/Petitioners: A.D. Ostwal, Syed A.R., S.A. Gaikwad
For the Respondents: K.S. Patil
For the Appellants/Petitioners: A.D. Ostwal, Syed A.R., S.A. Gaikwad
For the Respondents: K.S. Patil
Table of Contents
2. Applicants argue no evidence, no pecuniary benefit, and sanction defective. State opposes citing serious organized crime. (Para 4 , 5 , 6 , 7 )
3. Court finds allegations show organized crime for pecuniary gain through elimination of labour contract competitor. (Para 8 , 9 , 10 , 11 )
4. Organized crime's pecuniary benefit can be inferred from allegations; direct evidence not required. (Para 8 , 9 )
5. Bail applications dismissed. No change in circumstances; serious offences and no parity with co-accused. (Para 12 )
6. Can pecuniary benefit under MCOCA be inferred without direct evidence?
Yes, pecuniary benefit can be tested on allegations; direct evidence not required in every case. (Para 8 , 9 )
7. Can inordinate delay in trial be a ground for bail under MCOCA?
Inordinate delay may be a ground, but gravity of offence and public safety must also be considered. (Para 8 )
8. Does threatening labourers to stop work constitute insurgency under MCOCA?
Indirectly causing unemployment through threats can be insurgency, a ground to refuse bail. (Para 10 )
9. Is change in circumstance required for subsequent bail applications?
Yes, applicant must show change in circumstances after earlier bail rejection. (Para 11 )
10. Can parity with a co-accused be claimed when roles are different?
No, parity is not applicable when the role attributed is distinct from co-accused granted bail. (Para 11 )
ORDER :-
1. The applicants have been arraigned as accused in crime No.248/2019 registered at Badnapur Police Station, Jalna, Dist. Jalna, for the offences punishable under section 302, 307, 120-B of the Indian Penal Code (for short, “the I.P.C.”), under section 3/25 of the Indian Arms Act and under section 3(1)(i), 3(2), 3(4) of the Maharashtra Control of Organized Crime Act, 1999 (for short, “MCOCA Act”).
2. The alleged incident happened on 7th October, 2019. The deceased was a labour contractor. It has been alleged against the applicants that in the year 2017, they had threatened the deceased not to take labour supply contract. The accused attempted to commit the murder of deceased. Hence crime No.135/2017, for the offences punishable under sections 307, 147, 148, 149 of the I.P.C. was registered. When the incident happened, the said case was pending. The deceased was continuously threatened. One person used to be with the deceased was also assaulted and threatened not to live with the deceased. The deceased was assaulted in Pan Shop. The assailants came with masks. The report was lodged on the next day of the incident.
3. Considering the antecedents to the discredit of the applicants, the Additional Director General of Police (L & O), Maharashtra State, Mumbai granted sanction to prosecute the applicants under the provisions of MCOCA Act.
4. This is a third Bail Application of Uttam Mahajan Ghunawant. His earlier bail applications were rejected after considering the material placed before the Court. Applicant – Uttam is claiming the bail on the ground that the presence of the applicant on the spot of the incident was suspicious. The applicant was granted bail in another crime registered at the instance of the deceased. The statement of witness Manju Raosaheb Ghayal is contradictory. The statement of co-accused Pratik Milind Hivrale under section 164 of the Code of Criminal Procedure also appears not true. The confessional statements of Sumersing and Dadu are inadmissible. In a CCTV footage at Beer Bar, the applicant is not seen. There is no iota of evidence and legally admissible direct or indirect evidence to connect the applicant with the alleged offence. There was no charge-sheet against the applicant more than one. Hence, the provisions of MCOCA Act would not attract. There is inordinate delay in completing the trial and there is no possibility of commencement and completion of trial in near future. The applicant is languishing in jail since 08.10.2019 without material progress in the trial. Pending several cases cannot be a ground for refusal of bail. There was previous enmity, therefore, there is a great possibility of false implication. Mere sustaining fire arm injury does not prima facie show the complicity of the applicant in the alleged crime. The prosecution has no evidence that the applicant was involved in the Organized crime with the objective of gaining pecuniary benefit or gaining undue economic or other advantage for himself or for any other person. The applicant is not the member of the Organized Crime Syndicate. In the earlier case registered against the applicant, there was no evidence against the applicant to prove his involvement. Lastly, he claimed the parity.
5. Learned counsel for applicants Rajsing & Kuldeepsing and Gautam Madhukar Sonune adopted the arguments advanced by learned counsel for applicant Uttam. However, in addition thereto, he has vehemently argued that applicant Rajsing was not in a business of supplying labours. He was arrested on 26.06.2020. Nothing is recovered from him. He has been involved on the statement of the co-accused, which is not admissible in evidence. There is no memoranda below the sanction as required under rule 3(6) of the MCOCA Act. To buttress his argument, he relied upon the judgment in the case of Mohamad Iqbal Farooq Sheikh and another Vs. State of Maharashtra reported in 2007 All MR (Cri) 631. The sanction order initiating prosecution against the applicant
