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2024 Supreme(Online)(Bom) 11292
HIGH COURT OF BOMBAY
Urmila Joshi-Phalake, J
Kishor Pandurang Balpande – Appellant
Versus
State of Maharashtra – Respondent
CRIMINAL APPLICATION (ABA) NO.191/2024
For the Appellants/Petitioners: S.P.Bhandarkar
For the Respondents: D.V.Chauhan, S.V.Kolhe
The special act prohibits the granting of anticipatory bail for organized crime offences. Furthermore, the mandatory prior approval for investigation is required for the offence of organized crime generally and need not specify the names of individual suspected offenders.
Headnote:(A) Special Law - Control of Organized Crime - Section 21(3) - Anticipatory Bail - Bar on grant of relief under special statute - The provision mandates that nothing in the standard code of criminal procedure shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence punishable under the special act. (Paras 36, 37)
(B) Special Law - Cognizance and Investigation - Section 23(1)(a) - Prior approval - Scope of - Prior approval for investigation is for recording information regarding the commission of an organized crime offence and not for naming specific individual offenders in the approval order. (Paras 32, 33)
(C) Special Law - Organised Crime Syndicate - Membership and Nexus - Crucial factor is the membership or link with the organized crime syndicate; it is not a requirement that two charge-sheets for cognizable offences must be filed against every single member of said syndicate. (Paras 28, 29)
Facts of the case:
The applicant sought anticipatory bail in connection with offences registered under various penal provisions and a special enactment dealing with organized crime. The investigation originated from a report filed by a public servant who intercepted a vehicle transporting illegal goods. Subsequent investigation linked the applicant to the alleged organized crime syndicate, prompting the invocation of stringent special law provisions. The applicant challenged the proceedings, arguing the absence of their name from the initial approval order and lack of direct criminal antecedents.
Findings of Court:
The court observed that the investigation is at an initial stage and gathered evidence, including call detail records and confessional statements under Section 18 of the special act, establishes a prima facie nexus between the applicant and the crime syndicate. The court clarified that the special enactment targets the organized crime unit as a whole and that individual naming in the prior approval is not legally required under the prevailing oversight framework.
Issues: The primary issues addressed were the maintainability of an anticipatory bail application under the stringent provisions of the special act and whether the absence of an accused person's name in the prior approval order issued by the competent authority invalidates the investigation.
Ratio Decidendi: The court ruled that Section 21(3) of the special act creates an absolute bar to applications for anticipatory bail. Furthermore, the prior approval contemplated under Section 23(1)(a) is intended for the registration of an organized crime offence and not for naming specific individual participants at the inception of an investigation.
Result: Application rejected.
| Table of Content |
|---|
| 1. procedural context and factual background of the anticipatory bail application. (Para 1 , 2 , 3) |
| 2. parties' contentions regarding the mcoc act applicability and evidence quality. (Para 4 , 5 , 6 , 7) |
| 3. statutory definitions and procedures under the mcoc act for organized crime. (Para 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 18 , 19 , 20 , 21 , 22 , 23 , 24) |
| 4. evaluation of prima facie evidence and procedural validity of prior approval. (Para 17 , 25 , 26 , 27 , 30 , 31 , 32 , 33 , 34) |
| 5. the requirement of nexus with an organized crime syndicate to establish guilt. (Para 28 , 29 , 35 , 36 , 37) |
| 6. conclusion and disposal of the anticipatory bail request. (Para 38) |
1. Heard.
2. Apprehending arrest at the hands of police in connection with Crime No.10/2024 registered with the non-applicant/police station for offences punishable under Sections 143, 147, 149, 332, 353, 405, and 406 of the Indian Penal Code and under Section 48(7) of the Maharashtra Land Revenue Code, 1966 and under Section 3(1)(ii), 3(2), and 3(4) of the Maharashtra Control of Organised Crime Act, 1999 (the MCOC Act), the applicant approached this court for grant of anticipatory bail.
3. The accusations are on the basis of report lodged by Circle Officer Anil Bramhe. As per the report, on 14.1.2024, he and other staff were on patrolling duty. They intercepted a truck carrying sand. On enquiry with driver of the truck about royalty, the driver could not produce it. When the informant was taking photographs of the truck, 5-6 persons by two four-wheelers came there and started abusing them in a filthy language. The said persons and driver of the truck fled away from the spot of the incident. During the said incident, cell phone of the driver fell on the ground, which was seized. The accused persons threatened the informant and prevented him from discharging his duties and, therefore, First Information Report was lodged against the co-accused. During investigation, involvement of the applicant is also revealed and, therefore, apprehending his arrest, he preferred the application.
4. Learned counsel Shri S.P.Bhandarkar for the applicant submitted that on the basis of hollow and baseless allegations, the applicant is implicated. In fact, the applicant was not present at the spot. The prosecution is taking aid of order dated 19.1.2024 granting approval by the competent authority investigating the matter by applying provisions of the MCOC Act. However, the approval order does not reflect name of the applicant. There is absolutely no role of the applicant. No single offence is registered against the applicant either in individual capacity or as a member of organized crime syndicate. The applicant has absolutely no concern with the crime or with the other co-accused. There is no nexus between the applicant and the other co-accused. As far as confessional statement of the co-accused is concerned, Section 18 of the MCOC Act would come into play only after sanction under Section 23(2) of the MCOC Act. There is absolutely no bar under Section 21(3) of the MCOC Act to entertain the application. Considering a fact that prima facie there is no material to connect the applicant with the co-accused, there is no prior approval showing name of the applicant and, therefore, the applicant be protected by granting his pre-arrest bail.
5. In support of his contentions, learned counsel for the applicant placed reliance on following decisions:
1. Writ Petition No.1959/2021 ( Shabhana Parveen Inayatullah Shaikh vs. The State of Maharashtra (at the instance of Trombay Police Station C.R.No.332 of 2002) decided by this court at Principal Seat on 13.8.2021.
2. Criminal Application (BA) No.843/2023 ( Shahrukh alias Kasal Shaikh Akram vs. State of Maharashtra , thr.PSO PS Nandanwan, Nagpur) decided by this court on 22.12.2023.
6. Per contra, learned Public Prosecutor Shri D.V.Chauhan for the State strongly opposed the application on ground that the informant is Circle Officer
