2025 INSC 13
SUPREME COURT OF INDIA
(HON’BLE C.T. RAVIKUMAR, J.)
JAYSHREE KANABAR
Petitioner
VERSUS
STATE OF MAHARASHTRA
Respondent
Criminal
Appeal No. of 2025(@ SLP (Crl.) No. 15341 of 2023) With Criminal Appeal No. of
2025 (@ SLP (Crl.) No. 15820 of 2023)-Decided on 03-01-2025
Criminal, MCOCA, Bail
Criminal Procedure Code, 1973,
Section 439 - Maharashtra Control of Organized Crime Act, 1999, Section 21(4) –
Bail – Challenge as to - Offences punishable under Sections 302, 120B, 201 and 212
IPC’, Section 3/25 of the Arms Act, 1959; Section
37(1)(3) read with Section 135 of the Maharashtra Police Act,
1951 and Sections 3(1)(ii), 3(2) and 3(4) of the ‘the
MCOCA’ - Appreciation of materials on record for the purpose of forming a
definite opinion with respect to the question as to whether an accused
person(s) had played roles or not, in the crime concerned is not
permissible while considering an application for grant of bail - Observations
ought not to have been made by the High Court regarding the roles played or not
played by the accused Nos.1, 2 and 3 in the above mentioned MCOCA case - Impugned
order is also infected with absence of consideration which ought to have been
bestowed by the Court in the matter of grant of bail taking note of the
involvement of allegation of offence(s) under the MCOCA Act against
the respondent Nos. 2 and 3 - In spite of the fact that the accused No.3 was
not a party before the High Court, the High Court made specific finding to the
effect that he played a direct role - Application for bail moved by the
respondent Nos.2 and 3 ought to have been considered in view of the involvement
of the allegation of commission of offences under MCOCA in view of Section
21(4) of MCOCA, the impugned order invites interference - Grant of bail
was not in exercise of power of the High Court as a constitutional Court on the
ground of violation of Part-III of the Constitution - Case on hand
involves allegation of commission of offences of murder punishable
under Section 302, IPC - Impugned order liable to be set aside and
Criminal Bail Application restored into the file of the High Court in its
original number to be considered afresh in accordance with law.
(Para
12 to 14)
JUDGMENT
C.T. Ravikumar, J. :- Leave granted.
2.
The widow of the victim in MCOCA No.274/2021 arising out of Crime No.413/2020
registered at Bundgarden Police Station, Pune against respondent Nos.2 and 3
herein, who are respectively accused Nos.2 and 3 therein, filed this Special
Leave Petition against the order dated 06.11.2023 in Criminal Bail
Application No.2164/2022 of the High Court of Judicature at Bombay. Date:
2025.01.02 The said crime was registered for offences punishable under Sections
320, 120B, 201 and 212 of the Indian Penal Code, 1860
(for short, ‘the IPC’), Section 3/25 of the Arms Act,
1959; Section 37(1)(3) read with Section 135 of the
Maharashtra Police Act, 1951 and Sections
3(1)(ii), 3(2) and 3(4) of the Maharashtra Control of
Organized Crime Act, 1999 (for short, ‘the MCOCA’). As per the impugned order,
accused Nos.2 and 3 were granted bail in the said case. Manifold contentions
have been raised to challenge the grant. Before delving into them,
compendiously, we will refer to the prosecution’s case which led to the case on
hand.
3.
There was a long-drawn civil dispute between the deceased Rajesh Haridas
Kanabar on one side and families of respondent Nos.2 and 3 on the other over
certain extent of land comprised in Gat No.348 situated at Bavdhan in Pune.
Respondent Nos.2 and 3, who are accused Nos.1 and 2, appointed accused No.3 as
their agent to take care of their legal matter and other issues relating to the
aforesaid property. Though, a settlement was seemingly arrived at, the accused
were under the impression that the deceased was not favourably responding to
the settlement. On 05.10.2020, the revenue proceeding, which is an off-shoot of
the civil dispute, was listed before the Collector of Pune. The accused, as
also the deceased attended the proceedings. On coming out of the office of
the Collector, when the deceased was purchasing fruits near the gate of State
Bank of India at about 2:45 pm, accused No.4 viz., one Hasmukh Patel shot him
with a country made pistol. The informant Sri Vishwas Dayanand Gangavane
carried him to a nearby hospital where he was declared dead. Initially, charge
sheet was filed against the accused sans accusation of commission of offences
under MCOCA. However, a supplementary charge sheet was filed on 03.04.2021
whereunder offences under MCOCA were also inserted against them alleging that
accused Nos.1 to 4 are members of the Organised Crime Syndicate of which
accused No.4 is the gang leader and based on the conspiracy hatched between
them, they killed Rajesh Kanabar to have unlawful gains.
4.
It is the core contention of the appellant that a bare perusal of the impugned
order itself would bring home the fact that the order granting bail to
respondent Nos.2 and 3 (accused Nos.1 and 2 in the MCOCA case) is an outcome of
consideration akin to a mini-trial. Instances of observations, partaking the
character of findings on the merits of the case, have been pointed out by the
learned Senior Counsel appearing for the appellant. It is further contention
made on behalf of the appellant that though there was an irrecusable duty
on the Court to consider whether the twin conditions to be satisfied in terms
of Section 21 (4) of MCOCA the Court transgressed into impermissible
area, ignoring the fact that it was only considering an application for bail
and made appreciation of the materials on record and arrived at findings that
respondent Nos.2 and 3 had not played any role in the incident of shooting,
that there is no evidence, even to suggest that respondent Nos.2 and 3/accused
Nos.1 and 2 were directly or indirectly in contact with accused No.4, the gang
leader and that a perusal of the evidence would indicate that accused No.3 was
directly in contact with accused No.4, the gang leader and other members of the
Crime Syndicate. It is submitted by the learned Senior Counsel appearing for
the appellant that it is such highly improper and impermissible manner of
consideration that culminated in the impugned order of granting bail to
respondent Nos.2 and 3 and it would certainly deprive a fair trial to the
prosecution. Raising such contentions, the impugned order granting bail to
respondent Nos.2 and 3 is sought to be quashed and set aside and that they be
made to surrender soon.
5.
Per contra, the learned counsel appearing for Respondent Nos.2 and 3 would
contend that the impugned order invites no interference. The contention of
the learned counsel is to the effect that initially, the accused were not
accused of commission of offence(s) under MCOCA and they were inserted later,
through supplementary report, solely with the intention to ensure non-grant of
bail to the accused. It is also submitted that the respondent Nos.2 and 3 were
arrested in connection with the subject crime on 06.10.2020 and they were
enlarged on bail as per the order impugned only on 06.11.2023. A perusal of the
conditions of bail would reveal that they were adequate and appropriate to ensure
that the accused would not flee from justice and would face the trial, it was
further submitted.
6.
There cannot be any doubt with respect to the position that since MCOCA is
involved in this case on hand, the accused/respondent Nos.2 and 3 could not have
sought for bail in exercise of the discretion available under Section 439,
Cr.P.C., in the matter, in view of the rigours under Section 21(4) of
the MCOCA. A perusal of the impugned order would reveal that the public
prosecutor resisted the prayer for grant of bail and prayed the Court to
consider the question of grant of bail taking into account the rigour
of Section 21(4) of the MCOCA. In fact, the impugned judgment would
reveal that the said contention was taken note of by the High Court. At the
same time, it is a fact that the impugned order did not reflect such
consideration as has been required in respect of matter involving offences
under MCOCA in terms of the provisions thereunder as also the decisions
rendered by this Court in respect of grant of bail. When there is an embargo
put in by a specific provision under a special enactment in the matter of grant
of bail in respect of offences allegedly committed thereunder, the power to
grant bail should necessarily be subject to satisfaction of the conditions
mentioned in such specific provision. In the case on hand, such a specific
provision is contained under Section 21(4) of the MCOCA. The learned
counsel for the petitioners would submit that bail was granted to respondent
Nos.2 and 3 herein sans considering their entitlement in view of the decision
of this Court in Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwan &
Anr.1 At the same time, the learned counsel appearing for the respondent
would submit that even in the case of offences under Prevention of Money
Laundering Act (for short, ‘the PMLA’) which carries similar rigour in the
matter of grant of bail under Section 45(1), PMLA, this Court held that such
stringent provisions for the grant of bail would not take away the power of
Constitution of Courts to grant bail on grounds (2021) 6 SCC 230; 2021
INSC 265 of violation of Part-III of the Constitution of India. But we may
hasten to add that a critical examination of the impugned order would reveal
that bail was granted to respondent Nos.2 and 3 in the case on hand not on the
ground of violation of Part-III of the Constitution of India and instead, the
High Court has considered the sufficiency or otherwise of the evidence against
them available on record. There can be no doubt with respect to the position
that materials collected during the investigation would not mature into
evidence at the stage of consideration of an appeal and as such, the
admissibility and evidentiary value are matters to be decided during the trial
and are not matters for consideration at the present stage of the proceedings.
7.
In the light of the core contention raised by the appellant that the High Court
had transgressed into impermissible area inasmuch as the question of
sufficiency or otherwise and correctness of the prosecution case were
considered while passing the impugned order instead of confining the
consideration in regard to the question of satisfaction or otherwise of the
stringent conditions in the matter of grant of bail where offences under MCOCA
are involved. As noted above, grant of bail to respondent Nos.2 and 3 by
the High Court is not on the ground(s) of violation of Part-III of the
Constitution of India.
8.
A mere glance at the impugned order would go to show that there is substance in
the contentions of the appellant. No serious effort is required to pick out
such observations in the form of findings made in the impugned order by the
High Court in regard to the role of the accused persons involved in the crime
in question, including that of respondent Nos.2 and 3. In paragraph 11 of the
impugned order it was observed and held thus:-
“……It is seen on perusal of the
record that accused No.1 and 2 did not directly or indirectly deal with the
deceased at any point of time. Accused Nos.1 and 2 had given this responsibility
to accused No.3……”
9.
In paragraph 12 of the impugned order with regard to respondent Nos.2 and 3
(accused Nos.1 and 2) and also accused No.3 the High Court observed and held as
under:-
“……There is no evidence even to
suggest that accused Nos.1 and 2 were directly or indirectly in contact with
the gang leader accused and 3 had attended the Office of the Collector for
the purpose of the case. Similarly, the deceased has also attended the Office
of the Collector for attending the said case. It is not the case of prosecution
that before the actual incident of shooting of the deceased by accused
No.4, there was any quarrel or any dispute between accused Nos.1, 2 and 3 on
one hand and deceased on the other hand. The presence of accused Nos.1, 2 and 3
in the Office of the Collector was for the purpose of the case. It is seen that
in the incident of shooting, no role was played by accused Nos.1, 2 and 3. It
is seen that the witnesses, whose statements have been recorded by the
Investigating Officer, have not attributed any specific role or overt act to
the accused Nos.1 and 2 at any time.”
10.
In paragraph 14 of the impugned order, it was observed and held:-
“Perusal of the evidence
indicates that accused No.3 was directly in contact with the gang leader and
other members of the Crime Syndicate. Accused Nos.1 and 2 were not at all in
their contact. Accused No.3 was appointed as an agent by accused Nos.1 and 2 to
take care of their litigation and to look after their interest. It is seen that
the role played by accused No.3 was direct role…”
11.
In paragraph 22 of the impugned order, it was observed and held thus:-
had
not connection with the gang leader or Crime Syndicate…”
12.
In the light of the afore extracted observations partaking the character of
findings, the appellant is purportedly justified in contending that the
manner of consideration and the conclusions arrived at in pursuance thereof
would cause prejudice to the prosecution during the trial and if they are
allowed to remain, it would deprive them of a fair trial. The fact is that
besides such specific observations in the nature of findings in regard to the
roles played (or not played) by accused Nos.1, 2 and 3 and the consequential
conclusion that respondent Nos.2 and 3 are entitled to bail, as accused No.3
who played direct role was granted bail there was no consideration in the
manner required under law considering the fact that the case on hand carries
allegation of commission of offences under MCOCA against respondent Nos.2 and
3. We may hasten to add that we shall not be understood to have held that
respondent Nos.2 and 3 had played a definite roles in the commission of the
offence involved in the case on hand which resulted in the death of Rajesh
Haridas Kanabar. Certainly, the question whether his death is homicide and if
so, who is or are the culprit(s) are matters to be decided by the trial Court
on conclusion of the trial. In short, appreciation of materials on record for
the purpose of forming a definite opinion with respect to the question as to
whether an accused person(s) had played roles or not, in the
crime concerned is not permissible while considering an application for
grant of bail. At any rate, the afore extracted observations ought not to have
been made by the High Court regarding the roles played or not played by the
accused Nos.1, 2 and 3 in the above mentioned MCOCA case. Add to the aforesaid
situation, the impugned order is also infected with absence of consideration which
ought to have been bestowed by the Court in the matter of grant of bail taking
note of the involvement of allegation of offence(s) under the MCOCA
Act against the respondent Nos. 2 and 3. It is also a matter of concern
that in spite of the fact that the accused No.3 was not a party before the High
Court, the High Court made specific finding to the effect that he played a
direct role.
13.
In view of the observations tantamounting to findings, as referred above and in
the absence of consideration in the required manner, the application for bail
moved by the respondent Nos.2 and 3 ought to have been considered in view of
the involvement of the allegation of commission of offences under MCOCA in view
of Section 21(4) of MCOCA, the impugned order invites interference.
As noted hereinbefore, it is a fact that the grant of bail was not in exercise
of power of the High Court as a constitutional Court on the ground
of violation of Part-III of the Constitution. It is also a fact that the
case on hand involves allegation of commission of offences of murder punishable
under Section 302, IPC.
14.
In the circumstances we are of the considered view that the matter has to be
remanded for fresh consideration by the High Court of the application moved by
respondent Nos.2 and 3 for bail in MCOCA case No.274 of 2021 arising out of
Crime No.413/2020 registered at Bundgarden Police Station, Pune. In that regard
the impugned order dated 06.11.2023 is set aside and Criminal Bail Application
No.2164 of 2022 is restored into the file of the High Court in its original
number to be considered afresh in accordance with law. The parties including
the appellant herein who was the petitioner in Intervention Application No.4644
of 2022 would be at liberty to raise all contentions legally permissible to
raise before the High Court during consideration of the application. In this
regard, the parties shall appear before the High Court on 29.01.2025 and the
High Court may fix a date for hearing of that application. Taking note of the
fact that the respondent Nos.2 and 3 were on bail from 06.11.2023, they shall
be permitted to be on bail, despite the setting aside of the order, with the
same conditions as have been imposed under the impugned order till the disposal
of the abovementioned Criminal Bail Application No.2164 of 2022. The
appeals are allowed as above.
15.
In view of the fact that the crime is of the year 2020, the High Court is
requested to dispose of the application expeditiously, preferably within one
month from the receipt of the copy of this order. Let a copy of this order be
sent to the Registrar General of the High Court of Judicature at Bombay.
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