MUKESHBHAI VALLABHBHAI ABHANGIversusSTATE OF GUJARAT

                        [2023] 4 S.C.R. 1137                             1137


           MUKESHBHAI VALLABHBHAI ABHANGI                                A
                                  v.
                       STATE OF GUJARAT
                 (Criminal Appeal No. 1391 of 2023)
                           MAY 04, 2023                                  B
 [AJAY RASTOGI AND AHSANUDDIN AMANULLAH, JJ.]
        Bail : Grant of – Appellant, along with accused no.1 who
was operating an organised crime syndicate involving, inter alia,
extortion, land grabbing, contract killing, money-laundering,
                                                                         C
pressurized Secret Witness 11 to enter into a deal – SW11 was
threatened to execute around 18 separate sale deeds with either
creditors of the leader of the organized crime syndicate-accused
no. 1 or creditors of the appellant – Allegedly the appellant had
extorted 50,000 square feet of land from the said persons – FIR
against the appellant for offences punishable under the 2015 Act         D
and Penal Code, 1860 – Bail application by the appellant –
Dismissed by the High Court – On appeal, held : There was only
one case prior to the instant case, that too of the year 2014 and the
FIR thereof having been quashed by the High Court, even prior to
the filing of the charge-sheet, if accepted, helps the appellant and
                                                                         E
tilt the balance in his favour – Appellant has succeeded in making
out a prima facie case for the grant of bail – Furthermore, the
appellant is in jail for past 2½ years and it is the first time, he is
accused of such nature of crimes – Thus, the appellant be released
on bail on such terms and conditions as found appropriate by the
trial court – Gujarat Control of Terrorism and Organised Crime           F
Act, 2015 – ss. 3(1), 3(2), 3(3), 3(4) and 3(5) and 4 – Penal Code,
1860 – ss. 386, 387, 506(1), 506(2), 507, 201, 120B.
      State of Gujarat v Sandip Omprakash Gupta 2022 SCC
      OnLine SC 1727; State of Maharashtra v Shiva alias
      Shivaji Ramaji Sonawane (2015) 14 SCC 272 : [2015]                 G
      9 SCR 211; Mohammed Iliyas Mohammed Bilal
      Kapadiya v State of Gujarat 2022 SCC OnLine SC
      713; Gudikanti Narasimhulu v Public Prosecutor, (1978)
      1 SCC 240 : [1978] 2 SCR 371; Niranjan Singh v
      Prabhakar Rajaram Kharote (1980) 2 SCC 559 : [1980]
                                                                         H
                                1137
1138            SUPREME COURT REPORTS                           [2023] 4 S.C.R.


 A           3 SCR 15; Vilas Pandurang Pawar v State of
             Maharashtra (2012) 8 SCC 795 : [2012] 8 SCR 270 –
             referred to.
                                Case Law Reference
       [2015] 9 SCR 211                  referred to               Para 7
 B
       [1978] 2 SCR 371                  referred to               Para 10
       [1980] 3 SCR 15                   referred to               Para 11
       [2012] 8 SCR 270                  referred to               Para 12
             CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
 C
       1391 of 2023.
             From the Judgment and Order dated 28.11.2022 of the High Court
       of Gujarat at Ahmedabad in CRMA No. 13783 of 2021.
              Maninder Singh, Ms. Nitya Ramakrishnan, Sr. Advs., E. C.
 D     Agrawala, Sunil Murarka, Ankur Saigal, Gunnam Venkantewara Rao,
       Ms. S. Lakshmi Iyer, Ms. Anwesha Padhi, Pradhuman Gohil, Mrs. Taruna
       Singh Gohil, Ms. Ranu Purohit, Alapati Sahithya Krishna, Ms. Nidhi Mittal,
       Advs. for the Appellant.
           S. V. Raju, ASG, Ms. Swati Ghildiyal, Ms. Devyani Bhatt, Praveen
 E     Kumar Singh, Advs. for the Respondent.
             The Judgment of the Court was delivered by
             AHSANUDDIN AMANULLAH, J.
                Leave granted.
 F           2. The present Appeal is directed against the Final Judgment and
       Order dated 28.11.2022 (hereinafter referred to as the “Impugned
       Judgment”) passed by the High Court of Gujarat at Ahmedabad
       (hereinafter referred to as the “High Court”) in Criminal Miscellaneous
       Application No.13783 of 2021, whereby the Appellant’s prayer for release
       on bail has been dismissed.
 G
             THE FACTUAL PRISM:
              3. The Appellant is accused along with others in FIR Cr No.I-
       11202008202186 of 2020 registered with the “A” Division Police Station,
       Jamnagar, Gujarat for offences punishable under Sections 3(1), 3(2),
 H     3(3), 3(4) and 3(5) and 4 of the Gujarat Control of Terrorism and Organised
    MUKESHBHAI VALLABHBHAI ABHANGI v. STATE OF                                1139
       GUJARAT [AHSANUDDIN AMANULLAH, J.]

Crime Act, 2015 (hereinafter referred to as the “GCTOC Act”) read             A
with Sections 386, 387, 506(1) and 506(2) of the Indian Penal Code,
1860 (hereinafter referred to as the “IPC”). The present Appellant is
arrayed as accused no.8 in the said FIR.
      4. The case was registered on the basis of secret information
received that accused no.1 Jaysukh Muljibhai Ranpariay @ Jayesh Patel         B
was operating an organised crime syndicate in the city of Jamnagar in
the State of Gujarat, involving, inter alia, extortion, land grabbing,
contract killing, money-laundering etc.
        5. It was revealed that for such purpose, to derive monetary
benefits, he threatened land-owners and realtors/developers by                C
intimidating and threatening them with physical injury and threats to their
lives. It was also unearthed that various WhatsApp calls were intercepted,
revealing the names of other persons, who stand arrayed as co-accused.
The Appellant is associated with Shivdhara Buildcon, a construction
company involved in several land development projects in Jamnagar. It
was alleged by Secret Witness 11 (hereinafter referred to as “SW11”)          D
that in order to pay Rs.16,00,00,000/- (Rupees Sixteen Crores) debt with
regard to J.J. Jasodanath Scheme, the Appellant had offered a property
near his office. When SW 11 refused the offer, the very next day, the
Appellant involved accused no.1 in order to pressurize SW11. Thereafter,
SW11 was threatened and pressurised by the organised crime syndicate          E
to explore the proposal, under which approximately 50,000 square feet,
comprising of 26,000 square feet from the appellant’s J.J. Jasodanath
Scheme and 24,000 square feet from one Ashvin Virani (PW85) who
was running the scheme Jay Hari-3 (Khodal Villa) were to be shown to
be returned to SW11. But it is alleged that SW 11 was later on threatened
to execute around 18 seperate sale deeds with either creditors of the         F
leader of the organised crime syndicate (accused no.1), or creditors of
the Appellant-accused no.8, or persons known to the present Appellant.
In effect, it was alleged that the Appellant had extorted 50,000 square
feet of land from the afore-described persons.
      SUBMISSION BY THE APPELLANT:                                            G
       6. It was submitted that the High Court erroneously relied on the
First Information Report filed against the Appellant in the year 2014,
despite the factum that it stood quashed by the High Court vide order
dated 24.12.2014. Moreover, it was contended thattheincident, for which
the 2014 FIR was lodged, was of a personal nature and there was no            H
1140            SUPREME COURT REPORTS                          [2023] 4 S.C.R.


 A     allegation of the Appellant whatsoever being, in any way, concerned
       with any organised crime syndicate. It was pointed out that no charge-
       sheet had been filed against him.
             7. Learned counsel drew the Court’s attention to State of Gujarat
       v Sandip Omprakash Gupta, 2022 SCC OnLine SC 1727, dated
 B     15.12.2022, the relevant being at Paragraphs No. 49, 56 and 57, which
       affirms State of Maharashtra v Shiva alias Shivaji Ramaji Sonawane,
       (2015) 14 SCC 272, which stipulates that the defence of “organised
       crime” could be said to have been constituted by at least one incident of
       continuation apart from continuing unlawful activity evidenced by more
       than one chargesheets in the preceding ten years.
 C
              8. Learned counsel also referred to the decision dated 30.05.2022
       passed by this Court in SLP (Crl.) No. 1815 of 2022 titled ‘Mohammed
       Iliyas Mohammed Bilal KapadiyavState of Gujarat’, since reported
       as 2022 SCC OnLine SC 713, wherein also Section 2(c) of the GCTOC
       Act was involved and bail was granted on the ground that “only one
 D
       charge sheet was filed in respect of an activity which can be said to
       have been undertaken by the appellant/applicant as a member of
       an organised crime syndicate on behalf of such syndicate” as opposed
       to the requirement of “more than one chargesheet” under Section 2(c)
       of the GCTOC Act.
 E
             SUBMISSIONS OF THE RESPONDENT STATE:
              9. Mr S V Raju, learned Additional Solicitor General of India
       appearing for the State submits that the appellant was in close contact
       with accused no.1 Jaysukh @ Jayesh Muljibhai Ranpara (Patel) and
       during interrogation, the co-accused have stated that the Appellant used
 F
       to supply information to Jaysukh @ Jayesh Muljibhai Ranpara (Patel)
       relating to projects of the developers and thus, facilitated the whole
       exercise of extortion. It was further submitted that the mobile phone(s)
       seized from the Appellant during the investigation revealed that he was
       in touch with the organised crime syndicate. It was submitted that the
 G     Impugned Judgment did not warrant any interference by this Court.
             ANALYSIS, REASONING AND CONCLUSION:
             10. Our discretion must be exercised judiciously. Guidance is
       forthcoming from Gudikanti Narasimhulu v Public Prosecutor, (1978)
       1 SCC 240:
 H
    MUKESHBHAI VALLABHBHAI ABHANGI v. STATE OF                               1141
       GUJARAT [AHSANUDDIN AMANULLAH, J.]

      “3. What, then, is “judicial discretion” in this bail context? In      A
      the elegant words of Benjamin Cardozo [ The Nature of the
      Judicial Process — Yale University Press (1921)]:
      “The Judge, even when he is free, is still not wholly free. He
      is not to innovate at pleasure. He is not a knight-errant
      roaming at will in pursuit of his own ideal of beauty or of            B
      goodness. He is to draw his inspiration from consecrated
      principles. He is not to yield to spasmodic sentiment, to vague
      and unregulated benevolence. He is to exercise a discretion
      informed by tradition, methodized by analogy, disciplined by
      system, and subordinated to “the primordial necessity of order
      in the social life”. Wide enough in all conscience is the field        C
      of discretion that remains.”
      Even so it is useful to notice the tart terms of Lord Camden
      that [ 1 Bovu, Law Dict., Rawles’ III Revision p. 885 — quoted
      in Judicial Discretion — National College of the State
      Judiciary, Rano, Nevada p. 14] “the discretion of a Judge is           D
      the law of tyrants: it is always unknown, it is different in
      different men; it is casual, and depends upon constitution,
      temper and passion. In the best, it is oftentimes caprice; in
      the worst, it is every vice, folly and passion to which human
      nature is liable....”                                                  E
      4. Some jurists have regarded the term “judicial discretion”
      as a misnomer. Nevertheless, the vesting of discretion is the
      unspoken but inescapable, silent command of our judicial
      system, and those who exercise it will remember that discretion,
      when applied to a Court of Justice, means sound discretion             F
      guided by law. It must be governed by rule, not by humour; it
      must not be arbitrary, vague and fanciful, but legal and
      regular.
      An appeal to a Judge’s discretion is an appeal to his judicial
      conscience. The discretion must be exercised, not in opposition        G
      to, but in accordance with, established principles of law.
      [Judicial discretion, (ibid) p. 33]”
                                                     (emphasis supplied)
       11. In order not to prejudice either side, we are eschewing copious
reference to the evidentiary material available on the record. In Niranjan   H
1142            SUPREME COURT REPORTS                          [2023] 4 S.C.R.


 A     Singh v Prabhakar Rajaram Kharote, (1980) 2 SCC 559, this Court
       observed:
             “3… Detailed examination of the evidence and elaborate
             documentation of the merits should be avoided while passing
             orders on bail applications. No party should have the
 B           impression that his case has been prejudiced. To be satisfied
             about a prima facie case is needed but it is not the same as an
             exhaustive exploration of the merits in the order itself.”
                                                            (emphasis supplied)

 C            12. In Vilas Pandurang Pawar v State of Maharashtra, (2012)
       8 SCC 795, this Court opined “…Moreover, while considering the
       application for bail, scope for appreciation of evidence and other
       material on record is limited. The court is not expected to indulge in
       critical analysis of the evidence on record…”.

 D            13. Being in respectful agreement with the law exposited in these
       cases, we refrain from detailing our views on the merits.
              14. Having considered the matter, the Court finds that for the
       purposes of considering grant of bail to the Appellant, at this stage, the
       fact that there was only one case prior to the present case, that too of
 E     the year 2014 and the FIR thereof having been quashed by the High
       Court, even prior to the filing of the charge-sheet, even for the sake of
       argument, if accepted, helps the Appellant and tilt the balance in his
       favour. The Appellant has succeeded in making out a prima facie case
       for the grant of bail.

 F          15. The Appellant is in jail since 16.10.2020 viz. for over 2½ years.
       Admittedly, it is the first time, he is accused of such nature of crimes.
             16. Accordingly, let the Appellant be released on bail on such
       terms and conditions as found appropriate by the learned Trial Court.
             17. With a view to protect the State’s interests, we impose the
 G     following conditions in addition:
             I. The Appellant shall report to the Investigating Officer on every
             Monday between 10AM to 1PM.
             II. The Appellant would give an undertaking to the Trial Court
 H           with regard to his good behaviour.
    MUKESHBHAI VALLABHBHAI ABHANGI v. STATE OF                                  1143
       GUJARAT [AHSANUDDIN AMANULLAH, J.]

       III. The Appellant shall in no way attempt to influence the witnesses    A
       or tamper with the record.
       IV. The Appellant’s passport, if not already surrendered, shall be
       surrendered to the Trial Court.
       18. Any violation of the terms and conditions of the bonds or the
undertaking would entitle the respondent to move swiftly for cancellation       B
of the bail to the Appellant.
       19. The Appeal is allowed accordingly. Any pending application(s)
is/are closed in this light.

                                                                                C
Nidhi Jain                                                    Appeal allowed.
(Assisted by : Rakhi, LCRA)




                                                                                D




                                                                                E




                                                                                F




                                                                                G




                                                                                H