REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
1
2 CRIMINAL APPEAL NO. 1689 OF 2012
3 (Arising out of SLP (Crl.) No. 1522 of 2012)
The State of Maharashtra .... Appellant(s)
Versus
Vishwanath Maranna Shetty .... Respondent(s)
J U D G M E N T
P. Sathasivam, J.
1) Leave granted.
2) This appeal is directed against the judgment and order dated
10.08.2011 passed by the High Court of Judicature at Bombay in Criminal
Bail Application No. 872 of 2011 whereby learned single Judge of the High
Court granted bail to the respondent herein - Accused No.9 in MCOC Special
Case No. 10 of 2010 pending before the Special Court under the Maharashtra
Control of Organised Crime Act, 1999 for Greater Bombay.
3) Brief facts:
(a) According to the prosecution, an “organised crime syndicate” headed
by wanted accused Bharat Nepali and Vijay Shetty is operating overseas.
The said syndicate has indulged in various continuous unlawful activities
in the nature of extortion and contract killings in Mumbai and other places
through their members. All the accused persons pending on the file before
the MCOC Special Court, Greater Bombay are alleged to be the members of the
said syndicate.
(b) On 03.06.2010, one Farid Tanasha, known criminal, was shot dead at
his residence at Tilaknagar, Chembur, Mumbai. On the same day, an FIR
being No. 122 of 2010 was registered against the accused persons under
Sections 302 and 452 read with Section 34 and Section 120-B of the Indian
Penal Code, 1860 (in short ‘IPC’) and under Sections 3, 25 and 27 of the
Arms Act, 1959 at Tilaknagar Police Station.
(c) During investigation, DCB, CID, Unit No. 6, Mumbai learnt that the
murder was committed on the instructions of Bharat Nepali and Vijay Shetty
(wanted accused). Further, it was revealed in the investigation that one
Dattatray Bhakare (Accused No. 7 therein) - a builder, had contracted
Bharat Nepali and Vijay Shetty for eliminating Farid Tanasha (since
deceased), who agreed to help the members of a Co-op. Housing Society in
order to settle their dispute with the builder. It was also revealed in
the investigation that the said builder allegedly financed a sum of Rs. 90
lakhs for the said killing.
(d) It was further revealed during investigation that the respondent
herein was an active member of the “organised crime syndicate” and was
managing funds of the syndicate and through him the money changed hands
from co-accused Dattatray Bhakare to Jafar Razialam Khan @ Abbas and Mohd.
Sakib Shahnawaz Alam Khan, Accused Nos. 1 & 2 respectively, who killed
Farid Tanasha.
(e) On 25.09.2010, Commissioner of Police, Greater Bombay, accorded
sanction for prosecution of the arrested accused persons including the
respondent herein under Section 3(1)(i), (2) and (4) of the Maharashtra
Control of Organised Crime Act, 1999 (in short ‘the MCOCA’) and hence the
respondent is alleged to have committed the offences provided hereinabove
along with the offence under Section 302 read with Section 120B of the IPC.
(f) The respondent herein preferred an application for bail in Special
Case No. 10 of 2010 before the MCOC Special Court, Greater Bombay. By
order dated 07.05.2011, the Special Court dismissed the said application.
(g) Being aggrieved, the respondent herein preferred Criminal Bail
Application No. 872 of 2011 before the High Court. By impugned order dated
10.08.2011, the High Court accepted the case of the respondent and granted
him bail by imposing certain conditions.
(h) Questioning the order granting bail to the respondent, the State of
Maharashtra has filed the present appeal by way of special leave.
4) Heard Mr. Chinmoy Khaladkar, learned counsel for the appellant-State
and Mr. U.U. Lalit, learned senior counsel for the respondent-accused.
5) The only point for consideration in this appeal is whether in the
light of the allegations made and materials placed by the prosecution, the
High Court was justified in granting bail, particularly, in the light of
restriction imposed under Section 21(4) of MCOCA?
6) Learned counsel for the State, after taking us through the averments
in the FIR, confessional statement of Mohd. Rafiq Abdul Samad Shaikh @
Shankar (Accused No. 6 therein), relevant provisions of MCOCA and other
materials, submitted that the Special Court was fully justified in
rejecting the application for bail filed by the respondent, who is arrayed
as Accused No. 9. On the other hand, according to him, the High Court,
having failed to notice the involvement of the respondent and his role in
passing of the amount from Dattatray Bhakare - a builder to the actual
killers, A-1 and A-2, granted bail to him.
7) Per contra, Mr. U.U. Lalit, learned senior counsel for the
respondent, by pointing out the confessional statement of co-accused, who
retracted later, and in the light of the provisions of MCOCA, submitted
that the High Court was fully justified in granting bail to the respondent.
8) In order to appreciate the rival contentions, it is useful to refer
the relevant provisions of MCOCA which are extracted hereinbelow. There is
no dispute that apart from Section 302 read with Section 120-B of IPC, the
respondent was charged with Section 3(1)(i), 3(2) and 3(4) of MCOCA. The
relevant provisions of MCOCA read as under:
Section 2 of MCOCA deals with various definitions:
“2. Definitions. (1) In this Act, unless the context otherwise
requires,—
(a) ‘abet’, with its grammatical variations and cognate
expressions, includes,—
(i) the communication or association with any person with the
actual knowledge or having reason to believe that such person is
engaged in assisting in any manner, an organised crime syndicate;
(ii) the passing on or publication of, without any lawful
authority, any information likely to assist the organised crime
syndicate and the passing on or publication of or distribution of
any document or matter obtained from the organised crime syndicate;
and
(iii) the rendering of any assistance, whether financial or
otherwise, to the organised crime syndicate;
* * *
* * *
(d) ‘continuing unlawful activity’ means an activity prohibited by
law for the time being in force, which is a cognizable offence
punishable with imprisonment of three years or more, undertaken either
singly or jointly, as a member of an organised crime syndicate or on
behalf of such syndicate in respect of which more than one charge-
sheets have been filed before a competent court within the preceding
period of ten years and that court has taken cognizance of such
offence;
(e) ‘organised crime’ means any continuing unlawful activity by an
individual, singly or jointly, either as a member of an organised
crime syndicate or on behalf of such syndicate, by use of violence or
threat of violence or intimidation or coercion, or other unlawful
means, with the objective of gaining pecuniary benefits, or gaining
undue economic or other advantage for himself or any other person or
promoting insurgency;
(f) ‘organised crime syndicate’ means a group of two or more
persons who, acting either singly or collectively, as a syndicate or
gang indulge in activities of organised crime;
(g)…….”
“3. Punishment for organised crime- (1) Whoever commits an offence of
organised crime shall,
(i) if such offence has resulted in the death of any person, be
punishable with death or imprisonment for life and shall also be
liable to a fine, subject to a minimum fine of rupees one lac;
(ii) in any other case, be punishable with imprisonment for a term
which shall not be less than five years but which may extend to
imprisonment for life and shall also be liable to a fine, subject to a
minimum fine of rupees five lacs.
(2) Whoever conspires or attempts to commit or advocates, abets or
knowingly facilitates the commission of an organised crime or any act
preparatory to organised crime, shall be punishable with imprisonment
for a term which shall be not less than five years but which may
extend to imprisonment for life, and shall also be liable to a fine,
subject to a minimum of rupees five lacs.
(3) Whoever harbours or conceals or attempts to harbour or conceal,
any member of an organised crime syndicate; shall be punishable with
imprisonment for a term which shall not be less than five years but
which may extend to imprisonment for life and shall also be liable to
a fine, subject to a minimum fine of rupees five lacs.
(4) Any person who is a member of an organised crime syndicate shall
be punishable with imprisonment for a term which shall not be less,
than five years but which may extend to imprisonment for life and
shall also be liable to a fine, subject to a minimum fine of rupees
five lacs.
(5) Whoever holds any property derived of obtained from commission of
an organised crime or which has been acquired through the organised
crime syndicate funds shall be punishable with a term which, shall not
be less than three years but which may extend to imprisonment for life
and shall also be liable to fine, subject to a minimum fine of rupees
two lacs.”
“4. Punishment for possessing unaccountable wealth on behalf of member
of organised crime syndicate.
If any person on behalf of a member of an organised crime syndicate
is, or, at any time has been, in possession of movable or immovable
property which he cannot satisfactorily account for, he shall be
punishable with imprisonment for a term which shall not be less than
three years but which may extend to ten years and shall also be liable
to fine, subject to a minimum fine of rupees one lac and such property
shall also liable for attachment and forfeiture, as provided by
section 20.”
“21. Modified application of certain provisions of the Code.-
(1)…
(2)…
(3)…
(4) Notwithstanding anything contained in the Code, no person accused
of an offence punishable under this Act shall, if in custody, be
released on bail or on his own bond, unless—
(a) the Public Prosecutor has been given an opportunity to oppose
the application of such release; and
(b) where the Public Prosecutor opposes the application, the court
is satisfied that there are reasonable grounds for believing that he
is not guilty of such offence and that he is not likely to commit any
offence while on bail.”
9) The very same provisions have been considered by this Court in
Ranjitsing Brahmajeetsing Sharma vs. State of Maharashtra & Anr. (2005) 5
SCC 294. In this case, the provisions of MCOCA were invoked against one
Telgi who was arrested and proceeded against for alleged commission of
offence of printing counterfeit stamps and forgery in various States
including the State of Maharashtra. He was figured as Accused No. 23 and
one Shabir Sheikh as Accused No.25. After narrating all the details, this
Court posed the following question:
“36. Does this statute require that before a person is released on
bail, the court, albeit prima facie, must come to the conclusion that
he is not guilty of such offence? Is it necessary for the court to
record such a finding? Would there be any machinery available to the
court to ascertain that once the accused is enlarged on bail, he would
not commit any offence whatsoever?”
In an answer to the same, this Court held as under:
“38. We are furthermore of the opinion that the restrictions on the
power of the court to grant bail should not be pushed too far. If the
court, having regard to the materials brought on record, is satisfied
that in all probability he may not be ultimately convicted, an order
granting bail may be passed. The satisfaction of the court as regards
his likelihood of not committing an offence while on bail must be
construed to mean an offence under the Act and not any offence
whatsoever be it a minor or major offence. If such an expansive
meaning is given, even likelihood of commission of an offence under
Section 279 of the Indian Penal Code may debar the court from
releasing the accused on bail. A statute, it is trite, should not be
interpreted in such a manner as would lead to absurdity. What would
further be necessary on the part of the court is to see the
culpability of the accused and his involvement in the commission of an
organised crime either directly or indirectly. The court at the time
of considering the application for grant of bail shall consider the
question from the angle as to whether he was possessed of the
requisite mens rea. Every little omission or commission, negligence or
dereliction may not lead to a possibility of his having culpability in
the matter which is not the sine qua non for attracting the provisions
of MCOCA. A person in a given situation may not do that which he ought
to have done. The court may in a situation of this nature keep in mind
the broad principles of law that some acts of omission and commission
on the part of a public servant may attract disciplinary proceedings
but may not attract a penal provision.”
“44. The wording of Section 21(4), in our opinion, does not lead to
the conclusion that the court must arrive at a positive finding that
the applicant for bail has not committed an offence under the Act. If
such a construction is placed, the court intending to grant bail must
arrive at a finding that the applicant has not committed such an
offence. In such an event, it will be impossible for the prosecution
to obtain a judgment of conviction of the applicant. Such cannot be
the intention of the legislature. Section 21(4) of MCOCA, therefore,
must be construed reasonably. It must be so construed that the court
is able to maintain a delicate balance between a judgment of acquittal
and conviction and an order granting bail much before commencement of
trial. Similarly, the court will be required to record a finding as to
the possibility of his committing a crime after grant of bail.
However, such an offence in futuro must be an offence under the Act
and not any other offence. Since it is difficult to predict the future
conduct of an accused, the court must necessarily consider this aspect
of the matter having regard to the antecedents of the accused, his
propensities and the nature and manner in which he is alleged to have
committed the offence.”
“46. The duty of the court at this stage is not to weigh the
evidence meticulously but to arrive at a finding on the basis of broad
probabilities. However, while dealing with a special statute like
MCOCA having regard to the provisions contained in sub-section (4) of
Section 21 of the Act, the court may have to probe into the matter
deeper so as to enable it to arrive at a finding that the materials
collected against the accused during the investigation may not justify
a judgment of conviction. The findings recorded by the court while
granting or refusing bail undoubtedly would be tentative in nature,
which may not have any bearing on the merit of the case and the trial
court would, thus, be free to decide the case on the basis of evidence
adduced at the trial, without in any manner being prejudiced thereby.”
10) It is relevant to note that MCOCA was enacted to make special
provisions for prevention and control of, and for coping with, criminal
activity by organized crime syndicate or gang, and for matters connected
therewith or incidental thereto. The Statement of Objects and Reasons for
enacting the said Act is as under:
“Organised crime has for quite some years now come up as a very
serious threat to our society. It knows no national boundaries and is
fuelled by illegal wealth generated by contract killings, extortion,
smuggling in contrabands, illegal trade in narcotics, kidnappings for
ransom, collection of protection money and money laundering etc. The
illegal wealth and black money generated by the organised crime being
very huge, it has had serious adverse effect on our economy. It was
seen that the organised criminal syndicates made a common cause with
terrorist gangs and foster terrorism which extend beyond the national
boundaries. There was reason to believe that organised criminal gangs
have been operating in the State and, thus, there was immediate need
to curb their activities.
It was also noticed that the organised criminals have been making
extensive use of wire and oral communications in their criminal
activities. The interception of such communications to obtain evidence
of the commission of crimes or to prevent their commission would be an
indispensable aid to law enforcement and the administration of
justice.
2. The existing legal framework i.e. the penal and procedural laws
and the adjudicatory system were found to be rather inadequate to curb
or control the menace of organised crime. Government, therefore,
decided to enact a special law with stringent and deterrent provisions
including in certain circumstances power to intercept wire, electronic
or oral communication to control the menace of the organised crime.
It is the purpose of this Act to achieve these objects.”
We have already mentioned the relevant definitions including the definition
of ‘abet’, ‘continuing unlawful activity’, ‘organised crime’ and
‘organised crime syndicate’.
11) Keeping the above Objects and Reasons and various principles in mind,
statutory provisions of MCOCA, restrictions for the grant of bail and the
materials placed by the prosecution, let us consider whether the respondent
has made out a case for bail?
12) Considering the arguments advanced by both the sides, we have
meticulously analysed the reasoning of the special Court rejecting the
application for bail filed by the respondent herein and impugned order of
the High Court granting him bail. The materials placed indicate that the
respondent is having an association with the overseas base wanted accused
Nos. 1 and 2. It also indicates that the respondent knowingly handled the
funds of the syndicate. The statement of one of the witnesses indicates
that the respondent had asked the said witness to collect a sum of Rs.25
lakhs from the co-accused – Ravi Warerkar, however, the same was not
materialized. In addition to the same, there is a statement of co-accused
–Mohd. Rafiq that he collected Rs.15 lakhs from co-accused – Dattatray
Bhakare and delivered it to the respondent. The confessional statement
further indicates that the wanted accused - Vijay Shetty used to make calls
using cell phone no. 0061290372184 to the respondent. The confessional
statement also reveals that Accused No. 6 received Rs. 6 lakhs from the man
of the respondent-accused. On perusal of the materials relied on by the
prosecution, the special Judge concluded that the respondent had been
working for the wanted accused, Vijay Shetty, and he used to receive ill-
gotten money for him and prima facie the ingredients of the offence
punishable under Section 4 of MCOCA attracts against the respondent-
accused.
13) In the earlier part of our judgment, we extracted Section 21(4) of
MCOCA which bars the Court from releasing the accused of an offence
punishable under the said Act subject to the conditions prescribed in
clauses (a) and (b) therein. We are of the view that sub-section (4) of
Section 21 mandates that it is incumbent on the part of the Court before
granting of bail to any person accused of an offence punishable under MCOCA
that there are reasonable grounds for believing that he is not guilty of
such offence and he is not likely to commit any offence while on bail.
14) In the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short
‘the NDPS Act’), similar provision, namely, Section 37, corresponding to
Section 21(4) of the MCOCA has been substituted by Act 2 of 1989 with
effect from 29.05.1989 with further amendment by Act 9 of 2001 which reads
as under:
“37. Offences to be cognizable and non-bailable.—(1) Notwithstanding
anything contained in the Code of Criminal Procedure, 1973 (2 of
1974),—
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for offences under
Section 19 or Section 24 or Section 27-A and also for offences
involving commercial quantity shall be released on bail or on his own
bond unless—
(i) the Public Prosecutor has been given an opportunity to oppose the
application for such release, and
(ii) where the Public Prosecutor opposes the application, the court is
satisfied that there are reasonable grounds for believing that he is
not guilty of such offence and that he is not likely to commit any
offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of
sub-section (1) are in addition to the limitations under the Code of
Criminal Procedure, 1973 (2 of 1974) or any other law for the time
being in force, on granting of bail.”
Sub-clause (2) also makes it clear that the limitations on granting of bail
specified in clause (b) of sub-section (1) are in addition to the
limitations under the Code of Criminal Procedure, 1973 or any other law for
the time being in force, on granting of bail.
15) The above provision was considered by this Court in Union of India
vs. Rattan Mallik Alias Habul, (2009) 2 SCC 624. In this case, Union of
India filed an appeal before this Court challenging the order of the
Allahabad High Court suspending the sentence awarded by the trial Court to
the respondent/accused therein for having committed offences under Sections
8/27-A and 8/29 of the NDPS Act and granting him bail. Considering the
limitation imposed in sub-section (1) (b) of Section 37 of the NDPS Act,
this Court held thus:
“12. It is plain from a bare reading of the non obstante clause in
Section 37 of the NDPS Act and sub-section (2) thereof that the power
to grant bail to a person accused of having committed offence under
the NDPS Act is not only subject to the limitations imposed under
Section 439 of the Code of Criminal Procedure, 1973, it is also
subject to the restrictions placed by clause (b) of sub-section (1) of
Section 37 of the NDPS Act. Apart from giving an opportunity to the
Public Prosecutor to oppose the application for such release, the
other twin conditions viz. (i) the satisfaction of the court that
there are reasonable grounds for believing that the accused is not
guilty of the alleged offence; and (ii) that he is not likely to
commit any offence while on bail, have to be satisfied. It is manifest
that the conditions are cumulative and not alternative. The
satisfaction contemplated regarding the accused being not guilty, has
to be based on “reasonable grounds”.
13. The expression “reasonable grounds” has not been defined in the
said Act but means something more than prima facie grounds. It
connotes substantial probable causes for believing that the accused is
not guilty of the offence he is charged with. The reasonable belief
contemplated in turn, points to existence of such facts and
circumstances as are sufficient in themselves to justify satisfaction
that the accused is not guilty of the alleged offence (vide Union of
India v. Shiv Shanker Kesari). Thus, recording of satisfaction on both
the aspects, noted above, is sine qua non for granting of bail under
the NDPS Act.
14. We may, however, hasten to add that while considering an
application for bail with reference to Section 37 of the NDPS Act, the
court is not called upon to record a finding of “not guilty”. At this
stage, it is neither necessary nor desirable to weigh the evidence
meticulously to arrive at a positive finding as to whether or not the
accused has committed offence under the NDPS Act. What is to be seen
is whether there is reasonable ground for believing that the accused
is not guilty of the offence(s) he is charged with and further that he
is not likely to commit an offence under the said Act while on bail.
The satisfaction of the court about the existence of the said twin
conditions is for a limited purpose and is confined to the question of
releasing the accused on bail.”
After saying so, on going into the materials placed and the reasoning of
the High Court for grant of bail, this Court has concluded that the order
passed by the High Court clearly violates the mandatory requirement of
Section 37 of the NDPS Act and set aside the same with a liberty to decide
afresh in the light of the limitations imposed. In the case on hand, we
have already extracted the limitation/restrictions imposed in Section 21(4)
of MCOCA for granting bail.
16) It is relevant to point out that the materials placed by the
prosecution show that one Vijay Shetty and the respondent are members of
Bharat Nepali’s “organized crime syndicate”. It is also the definite stand
of the prosecution that the said Bharat Nepali as well as Vijay Shetty, who
murdered Farid Tanasha are said to be out of India and are indulging into
the organized crime through the members of the syndicate. The materials
placed further show that Dattatray Bhakare-a builder, was doing a project
at Chembur, Mumbai and some members of the Co-operative Housing Society had
some dispute with him, therefore, they had approached Farid Tanasha, who
had a criminal background and he also agreed to help those persons in their
dispute with the builder. On knowing this, Dattatray Bhakare contacted
Bharat Nepali and Vijay Shetty for eliminating Farid Tanasha and for that
he allegedly financed a sum of Rs.90 lakhs which was paid to the said
wanted accused persons through the arrested accused persons. The
investigation also reveals that about Rs. 9 lakhs were given to the main
shooter – Mohd. Sakib Shahnawaz Alam Khan (Accused No.2) through Mohd.
Rafiq (Accused No. 6). The said Accused No.6 made a confessional statement
as far as the respondent herein is concerned. It was alleged that Accused
No.6, on the instructions of the wanted accused - Vijay Shetty, used to
collect money from the respondent and on several occasions, he handed over
the same to Accused No. 2. It was also alleged that on the instructions of
the wanted accused – Vijay Shetty, Accused No. 6 paid a sum of Rs. 15 lakhs
to the respondent herein on 28.05.2011. It is the further case of the
prosecution that in the third week of June, 2010, Accused No. 6 received an
amount of Rs. 6 lakhs from an employee of the respondent. The substance of
the allegation against the respondent is that part of the amount, which was
given to the shooter for killing Farid Tanasha, had been passed on through
him to the actual shooter. It is not in dispute that sanction under
Section 23(2) of MCOCA had been accorded by the Commissioner of Police on
25.09.2010.
17) Considering the materials, particularly, in the light of the bar
under Section 21(4) of MCOCA, the Special Court rightly rejected the
application for bail filed by the respondent herein. From the materials
placed, prima facie, it is clear that the respondent-accused had
association with the wanted accused, Vijay Shetty and Bharat Nepali, who
are notorious criminals and the act of the respondent comes within the
definition of ‘abet’ as defined in Section 2(1)(a) of MCOCA.
18) As rightly pointed out by the learned counsel for the State that the
High Court ought to have appreciated the statement of the co-accused-
Mohammad Rafiq that on 28.05.2010, he collected Rs. 15 lakhs from co-
accused- Dattatray Bhakare and delivered it to the respondent. The
confessional statement further indicates that the wanted accused, Vijay
Shetty used to make calls from cell phone no. 0061290372184 and call
records also indicate that the cell phone that was being used by the
respondent did receive overseas calls. The confessional statement
further indicates that he received Rs. 6 lacs from the man of the
respondent. The material placed by the prosecution also indicate that the
respondent has been working for the wanted accused-Vijay Shetty and he used
to receive ill-gotten money for him. We have already extracted Section
21(4) which interdict grant of bail to the accused against whom there are
reasonable grounds for believing him to be guilty of offence under MCOCA.
19) We are satisfied that the High Court failed to appreciate the fact
that the materials placed against the respondent consist of the confession
made by the co-accused – Mohd. Rafiq which has been recorded under Section
18 of MCOCA, the statement of the employee of the respondent which
indicates that the respondent handed over cash to him in the third week of
June, 2010 and that the money received by the respondent and handed over to
the main accused were part of the illegal transactions. The act of the
respondent, prima facie, is well within the definition and also the
statement of object and reasons of the MCOCA which we have already
extracted. The act of the respondent is of the abetment of the offence
enumerated in MCOCA. At any rate, the materials placed by the prosecution
show that the respondent had received ill-gotten money for the wanted
accused – Vijay Shetty and, therefore, ingredients of Section 4 of MCOCA
were attracted against him. We are satisfied that all these aspects have
been correctly appreciated by the Special Court.
20) Though the High Court has adverted to all the above-mentioned aspects
and finding that all those aspects have to be considered during the trial
and even after finding that “it cannot be said that there are no reasonable
grounds for believing that the applicant (respondent herein) has not
committed an offence punishable under the MCOCA”, on an erroneous view,
granted him bail which runs contrary to Section 21(4) of MCOCA.
21) While dealing with a special statute like MCOCA, having regard to the
provisions contained in sub-section (4) of Section 21 of this Act, the
Court may have to probe into the matter deeper so as to enable it to arrive
at a finding that the materials collected against the accused during the
investigation may not justify a judgment of conviction. Similarly, the
Court will be required to record a finding as to the possibility of his
committing a crime after grant of bail. What would further be necessary on
the part of the Court is to see the culpability of the accused and his
involvement in the commission of an organized crime either directly or
indirectly. The Court at the time of considering the application for grant
of bail shall consider the question from the angle as to whether he was
possessed of the requisite mens rea. In view of the above, we also
reiterate that when a prosecution is for offence(s) under a special statute
and that statute contains specific provisions for dealing with matters
arising there under, these provisions cannot be ignored while dealing with
such an application. Since the respondent has been charged with offence
under MCOCA, while dealing with his application for grant of bail, in
addition to the broad principles to be applied in prosecution for the
offences under the IPC, the relevant provision in the said statute, namely,
sub-section (4) of Section 21 has to be kept in mind. It is also further
made clear that a bare reading of the non obstante clause in sub-section
(4) of Section 21 of MCOCA that the power to grant bail to a person accused
of having committed offence under the said Act is not only subject to the
limitations imposed under Section 439 of the Code of Criminal Procedure,
1973 but also subject to the restrictions placed by clauses (a) and (b) of
sub-section (4) of Section 21. Apart from giving an opportunity to the
prosecutor to oppose the application for such release, the other twin
conditions, viz., (i) the satisfaction of the Court that there are
reasonable grounds for believing that the accused is not guilty of the
alleged offence; and (ii) that he is not likely to commit any offence while
on bail, have to be satisfied. The satisfaction contemplated in clauses
(a) and (b) of sub-section (4) of Section 21 regarding the accused being
not guilty, has to be based on “reasonable grounds”. Though the expression
“reasonable grounds” has not been defined in the Act, it is presumed that
it is something more than prima facie grounds. We reiterate that recording
of satisfaction on both the aspects mentioned in clauses (a) and (b) of sub-
section (4) of Section 21 is sine qua non for granting bail under MCOCA.
22) The analysis of the relevant provisions of the MCOCA, similar
provision in the NDPS Act and the principles laid down in both the
decisions show that substantial probable cause for believing that the
accused is not guilty of the offence for which he is charged must be
satisfied. Further, a reasonable belief provided points to existence of
such facts and circumstances as are sufficient to justify the satisfaction
that the accused is not guilty of the alleged offence. We have already
highlighted the materials placed in the case on hand and we hold that the
High Court has not satisfied the twin tests as mentioned above while
granting bail.
23) In our opinion, the impugned order having been passed ignoring the
mandatory requirements of Section 21(4) of MCOCA, cannot be sustained.
Accordingly, the impugned order of the High Court dated 10.08.2011 in
Criminal Bail Application No. 872 of 2011 granting bail to the respondent
is set aside and the order of the special Judge dated 07.05.2011 in M.C.O.
Special Case No.10 of 2010 is restored. In view of the same, the respondent
is directed to surrender before the Special Court within a period of two
weeks from the date of passing of this order, failing which, the special
Court is directed to take appropriate steps for his arrest.
24) The appeal of State of Maharashtra is allowed.
...…………….…………………………J.
(P. SATHASIVAM)
..…....…………………………………J.
(RANJAN GOGOI)
NEW DELHI;
OCTOBER 19, 2012.
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