Full Text
Order pronouncedon 05.08.2022
STATE Appellant
Through; Mr.Amit Chadha,APP for State,
Through: Mr. Omkar Sharma and Mr. Ghanshyam Sharma,Advocates.
STATE Appellant
Through:■ Mr.Amit Chadha,APP for State.
Through: Mr. Omkar Sharma and Mr. Ghanshyam Sharma,Advocates.
0 1. The State hasfiled these appeals under Section 12ofThe Maharashtra
Control of Organised Crime Act, 1999 (hereinafter referred to 'MCOCA') read with Section 482 Cr.P.C. against the impugned order dated 25.11.2020 passed by learned Special Judge(MCOCA)-cum-ASJ. Since broad facts in both the cases are same and the appeals are also on the same lines, so both the matters have been taken up togetherfor disposal.
1.1 The case ofthe petitioners is that regular bail was granted to both the
CrI.Appeal358/2021 & conn. Page I oj8 2022:DHC:5984 respondents/accused persons withoutthey being injudicial custody and they were directed tojoin investigation as and when required by the Investigating
Officer. The application filed before the learned Special Judge was neither an application under Section 439 Cr.P.C. nor an application under Section
438 Cr.P.C. and the heading of the application stated that this was an application for joining the investigation and grant of bail. There is no provision under MCOCA for grant ofanticipatory bail butthe applications were considered by learned ASJ treating them as anticipatory bail applications. These applications were moved on 23.11.2020,the response was filed on 25.11.2020 and on the same date, these applications were disposed ofbytwoseparate detailed ordersonidenticalgrounds.
1.2 In brief the facts of the ease are that an FIR No. 397/2019 was registered under Section 3/4 ofMCOCA atPS:Hari Nagar againstSalman
Tyagi and his crime syndicate members.Hehad formed an interstate gang for running an organised crime syndicate with an objective of gaming pecuniary benefits for himself, his family members and his associates.
Accused Salman Tyagi was arrested on 03.10.2020 and subsequently other membersofthecrimesyndicate werealsoarrested. Confessionalstatements of all the arrested accused persons were recorded under Section 18 of
O MCOCA where they admitted their differentroles in running/participating inthecrimessyndicateofextortion ofmoneyby creatingfearamongpublic personswiththeuseofillegalfirearmsandthey arealsodealing mdrugs/ contrabands.
1.3 Charge-sheet was filed against the arrested accused persons on
26032020.Proceedings under Section 82Cr.P.C.againstaccused Manish
Malhotra @ Sunny and Mohd. Faizal @ Bablu are stated to be under
Page 2of8 CrI.Appeal358/2021 & conn. process. Accused persons/respondents are stated to be involved in case FIR
No.342/2012 dated 25.09.2012 under Sections 307/429/147/148/149/34IPC and Sections 25/27/54/59 ofthe Arms Act,in which accused Salman Tyagi along with gang members and the present two respondents/accused were arrested in the case for assaulting the complainant with an iron rod, sword and for firing gun shots upon the complainant.
1.4 Accused respondent/l-lazi Mansoor is also stated to be involved in case FIR No.338/2012 under Sections 308/323/34 IPC at PS Hari Nagar in which accused Salman Tyagi, the present accused/respondent and other accused persons had beaten the complainant so severely that he would have died ofthe consequences ofbeating.
1.5 It is the further case ofthe petitioner that during investigation, some of the immovable properties belonging to the accused persons were identified. The said properties were identified by main accused Salman
Tyagi during his PC remand as belonging to him or his family members, including the present accused/respondents. As per law, there is an FIR againstthe accused persons apartfrom confessional statementsfrom the co- accused and statements ofindependent witnesses,who had testified thatthey were threatened by the present accused/respondents, so these are enough grounds to invoke the stringent provisions of MCOCA against the respondents.
1.6 These two accused/respondents were not arrested by the investigating agency but they were granted bail without considering the fact that they were required by the investigating agency for their custodial interrogation for proper investigation ofthe case. Provisions under Section 438 Cr.P.C. do not apply to the cases under MCOCA.
/ Crl.Appea!358/2021&conn. ^of8 1.7 The grounds on which the present petition is filed are that the bail orders passed by the learned ASJ are without application ofjudicial mind, based on conjectures and surmises; the application before learned Special
Judge was not filed under any provision of Cr.P.C.; the learned Special
Judge has conducted a mini trial at the stage of considering the bail applications;there were no formal applications ofsurrender butthe learned
ASJ in the impugned order has taken the respondents under court custody/jurisdiction and thereafter granted regular bail and the procedure prescribed under Section 439 Cr.P.C. was not followed; the confessional
© statement under Section 18 MCOCA of other co-accused persons and the involvement of the present respondents was not taken into consideration.
Onthese grounds,ithasbeenprayedthatthe orders dated 25.11.2020be set aside andthe bails grantedtotherespondents/accusedberevoked.
JUDGMENT
2. Notice was issued. Response has been filed on behalf of the respondents. On behalfofthe respondents,it has been submitted thatthe order dated 20.07.2020, wherein anticipatory bail was granted to Mustafa Tyagi was notbeing challenged by the investigating agency. The present respondents applied for anticipatory bails which were granted by the impugned orders on the ground that the roles assigned to the present © petitioners are identicalto Mustafa Tyagi. Theinvestigating agency never appliedforissuanceofNBWsagainstthepresentrespondentsandtheywere never called upon to join investigation and that was the reason why respondentsapproachedtheCourtwithaprayertojoininvestigationasthey werealwayswilling,readyand availableforjoiningtheinvestigation. 2.[1] Theorderhasbeenchallengedby prosecution afterlapseofone year. Thebails weregrantedtotherespondentsonthegroundthatno caseunder Page 4 of[8] CrI.Appeal358/2021 & conn. © MCOCA wasmadeoutagainstthemand State wasgivenlibertytoapproach the concemed court in the event of any credible evidence against the respondents is found for being involved in activity of organized crime syndicate or holding assets on its behalf. 2.[2] The petitioner never approached the learned Trial Court for cancellation ofthe bail order dated 25.11.2020 because no new facts came on record to implicate the present respondents as members of organized crime syndicate or holding assets from proceeds of organised crime syndicate. They have vehemently denied that they are members of any organized crime syndicate. The details ofthe properties and the way they have acquired the properties,have also been detailed. It has been stated that the learned Trial Court has passed a reasoned order,so,there is no occasion to recall or cancel the,said order.
3. Written synopsis have been filed on behalfofthe State as well as on behalfofrespondents. 3.[1] I have heard the counselfor both the parties. 3.[2] It is pointed out in the written synopsis on behalfofthe State that both the accused/respondents were arrested in case FIR No. 424/2021 dated 30.07.2021 under Sections 387/336/506/212/120B IPC and 25/27 Arms Act, PS Hari Nagar and in the said case, Salman Tyagi(Kingpin)and Muntzeer @ Munti (real, brother of Salman Tyagi) were arrested on 27.08.2022 and 01.10.2021 respectively as they were found to be involved in demand of extortion ofmoney. Accused Salman Tyagi called complainant Bhoomi and had demanded protection money.ofRs. 15 lakhs from her and had asked her to hand over the money to his family members, including the present respondents/accused and when protection money was not given, accused Crl.Appeal358/2021 & conn. Page5of[8] © C Salman Tyagi with the help oforganized crime syndicate members,fired upon house of Bhoomi, so that in state of fear, she should deliver the protection money demanded by accused Salman Tyagi. It categorically reflects that both the accused persons are continuing unlawful activities unabated on behalfofalleged organized crimesyndicate. 3.[3] Itis to be further noted thatPara no.l[6] oftheimpugned orderin case ofIbrahim Tyagi and para no.17 ofthe impugned order in case ofaccused respondent Hazi Mansoor, clearly state that '/« the event ofdiscovery of credible evidence againstaccused/respondentsregardinginvolvementin the activityoforganizedcrimesyndicate or holdingassetson its behalf the bail granted through.this ordershall be reconsidered'. 3.[4] The impugned order is dated 25.11.2020 and FIR bearing NO. 424/2021,PS Hari Nagar, was registered only on 30.07.2021. This gives cause ofaction to the State to approach the Court ofleamed Special Judge, MCOCA for re-considering the orders dated 25.11.2020 for cancellation of bail.
4. In view of the above, an opportunity is granted to the State to approach the court ofleamed Special Judge,MCOCA in terms ofthe liberty granted in the last paragraphs of orders dated 25.11.2020 and move applications for cancellation of bails in both the cases. In case, any such applications are moved by State,the presentrespondents shall have a rightto file their response and the leamed Special Judge shall dispose of the said application on merits after hearing both the parties. 4.[1] At this juncture, attention of the leamed Special Judge is drawn to Section 21 ofMCOCA,which is reproduced hereunder:- "27. Modified application ofcertain provisions ofthe Code- Cii.Appeal358/2021 & conn. Page6of[8] © (1) Notwithstanding anything contained in the Code or in any other law, every offence punishable under this Act, shall be deemed to be a cognizable offence within the meaning ofclause (c)ofsection 2ofthe Code and "congnizable case"as defined in thatclause shall be construed accordingly. (2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modifications that, in sub-section(2),— (a) the references to "fifteen days", and "sixty days", wherever they occur, shall be construed as references to "thirty days"and"ninety days", respectively; (b)after theproviso, thefollowingproviso shall be inserted, namely:— Provided further that if it is not possible to complete the investigation within the said period ofninety days, the Special Court shall extend the said period upto one hundred and eighty days, on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasonsfor the detention ofthe accused beyondthesaidperiodofninetydays.. (3)Nothing in section 438 ofthe Code shall apply in relation to any case involving the arrest ofanyperson on an accusation of havingcommittedan offencepunishable underthisAct. (4) Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act shall, if in custody, be releasedon bailoron hisown bond,unless (a)the Public Prosecutor has been given an opportunity to oppose the application ofsuch release;and (b) where the Public Prosecutor opposes the application,
0. the Courtissatisfied that there are reasonable groundsfor ^ believing thathe is notguilty ofsuch offence and thathe is notlikely to commitanyoffence while on bail. (5)Notwithstandinganythingcontainedin the Code,the accused shall not be granted bailifit is noticed by the Courtthathe was on bail in an offence under this Act, or under any other Act, on the date ofthe offence in question. ■ (6)Thelimitationsongrantingofbailspecifiedinsub-section(4) are in addition to the limitations underthe Code orany otherlaw forthe time beinginforceon thegrantingofbail. Page 7of[8] Crl.Appeal358/2021 & conn. a-"A C (7) The police officer seeking the custody ofany person for preindictmentorpre-trialinterrogationfrom thejudicialcustody shallfile a written statement explaining the reasonfor seeking such custody and alsofor the delay, ifany, in seeking thepolice custody
5. The applications to be filed by the State may be disposed ofby the Ld.SpecialJudge,keeping in view the above-noted provisions.
6. With these directions,the present appeals are disposed of. State shall approach the learned Trial Judge within four weeks from the date of this order.
7. It is needless to state that nothing stated hereinabove will come in the way ofthe Ld.Special Judge while deciding the applications ofthe State on merit.