The accused is not entitled to bail if he is found to be forum shopping : Supreme Court
The accused is not entitled to bail if he is found to be forum shopping. It is highly deprecated and cannot be approved.
In a recent judgement, a criminal case involving extortion and funding the organized crime syndicate, the Supreme Court viewed that the forum shopping cannot be approved at all and hence bail is liable to be denied.
The fact of the case is that serious offences under Sections 384 (Punishment for extortion), 386 (Extortion by putting a person in fear of death or grievous hurt), 387 (putting a person in fear of death or grievous hurt in order to commit extortion) read with Section 34 of the Indian Penal Code, charged against accused persons namely Iqbal Ibrahim Kaskar, Israr Jamil Sayyed and Mumtaz Ejaj Shaikh @ Raju. During investigation, the respondent herein, who runs a Matka business was also found to be providing funds to the notorious gangsters for purchasing weapons, information and also alleged to be the active member of organized crime syndicate. Therefore the provisions of Maharashtra Control of Organised Crime Act (MCOCA)
The respondent could successfully get interim bail from the Division Bench of the High Court of Judicature at Bombay. On appeal in the Supreme Court of India, the Government of Maharashtra could successfully challenged the impugned order of the High Court of Judicature at Bombay,
The present appeal is the result of the impugned order of the Division Bench of the High Court , where the respondent was granted interim bail disregarding the detailed order of the Learned Special Judge.
In the trial Court, he accused persons were chargesheeted under the Penal Sections as well as under the Maharashtra Control of Organised Crime Act (MCOCA). They are alleged to be funding the organized crime syndicate by the international gangster Shakil Babu Mohiddin Shaikh @ Chota Shakil @ C.S and Iqbal Ibrahim Kaskar @ Iqbal Hasan Shaikh Ibrahim and other gangs. During investigation it was found that the Respondent, Pankaj Jagshi Gangar was also paying the amount to such organized crime syndicate
The respondent filed the bail application before the Learned Special Judge (MCOCA) which was rejected through a detailed and reasoned judgement after considering the statements relied upon by the prosecution.
After feeling aggrieved and dissatisfied by the order of rejection of bail, the respondent approached the High Court and the bail application was heard by the Single Judge and after hearing the learned counsel of accused/respondent was not inclined to grant any relief, so the learned counsel withdrew the case.
Immediately the respondent/accused filed writ petition in the Division Bench of the High Court of Judicature at Bombay praying for the reliefs
1. striking down Sections 23 (1) (a) and Section 21(4) of the MCOCA being unconstitutional and violative of Articles 14 19 and 21 ;
2. to quash and set aside the impugned order of prior approval Order and to quash the proceedings under the Special MCOCA case;
3. to set the petitioner/respondent at liberty on terms as deemed fit in the interest of justice; and
4. to release from custody on interim bail
Though the constitutionality of the aforesaid two provisions of the MCOCA was yet to be considered by the High Court, the Court released the respondent on interim bail which he could not get before the Single Judge.
The Learned Counsel of the State vehemently opposed the bail of the respondent, submitting that the High Court has committed grave error by not considering the gravity of offences alleged. The Court has also not considered or appreciated the detailed judgement refusing to grant bail to the respondent.
It was also submitted that after withdrawing bail application before the Single Judge who disinclined to release the accused/respondent, he immediately filed writ petition under the guise of challenging the vires of the provisions of the MCOCA. And that setting aside of sanction/approval of the appropriate authority for invoking the MCOCA was inopportune and untimely.
Whereas on the other hand the respondent’s counsel argued that the High Court has rightly held that sanction of the appropriate authority to prosecute the accused is bad in law
Therefore releasing the accused on bail by way of interim relief in the interim stage is unsustainable in law – the learned counsel submitted.
The bench of Justice M.R. Shah and Justice Sanjiv Khanna quashed the impugned order and directed the respondent/accused to surrender forthwith failing which the Ld. Special Judge established under the Maharashtra Control of Organised Crime Act shall issue non-bailable warrant to the Respondent.
Before quashing the impugned order, the Court relied on the case of M/S Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra and Others (Cr. Appeal no. 330 of 2021)
The Apex Court bemoaned on the fact that while releasing the respondent on interim bail, the High Court has not at all considered the seriousness of the offences alleged against him. The fact that the respondent provided fund to the international gangster like Chota Shakil and his gangs said to be serious offence.
According to Supreme Court, impugned order of the High Court observing that “the sanction to invoke the provisions of the MCOCA is bad in law” at the interim stage was not warranted and granting relief for the offence under the MCOCA at the interim stage was impermissible.
As per the submission of the respondent’s counsel that the respondent has not misused the liberty while on bail and thus the impugned order may not quashed and the bail may not be cancelled. At this the Apex Court viewed according to catena of judgment that quashing and setting aside the wrong order releasing the accused on bail and to cancel the bail of the accused on misuse of liberty etc. , both stand on different footing. It is not a question of cancellation of bail but it is a question of quashing and setting aside the wrong order passed by the Court releasing the accused on bail.
The accused is not entitled to bail if he is found to be forum shopping. It is highly deprecated and cannot be approved – Supreme Court said.
Therefore the impugned order passed by the High Court releasing the accused on bail deserves to be quashed and set aside - Supreme Court said.
Coram:
Justice M.R. Shah and Justice Sanjiv Khanna.
Case: The State of Maharashtra vs. Pankaj Jagshi Gangar ( Crl. Appeal No. 1493 of 2021)
DOJ: 3.12.2021
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