THE STATE OF MAHARASHTRAversusPANKAJ JAGSHI GANGAR

                          [2021] 9 S.C.R. 307                             307


                THE STATE OF MAHARASHTRA                                  A
                                  v.
                    PANKAJ JAGSHI GANGAR
                 (Criminal Appeal No. 1493 Of 2021)
                       DECEMBER 03, 2021                                  B
          [M. R. SHAH AND SANJIV KHANNA, JJ.]
       Penal Code, 1860 – ss.384,386,387 r/w. s.34 – Maharashtra
Control of Organised Crime Act, 1999 – s.23(1)(a) and s.21(4) –
Prosecution case that there was a organized crime by one
                                                                          C
international gangster and it was also found that from time to time,
the respondent was paying the amount to such organized crime
syndicate and other gangs which they used to use the said amount
for taking help of other members by paying amount to them and it
was also found that the respondent was running the Matka business
– After investigation a charge sheet was submitted under the              D
provisions of the IPC as well as under the Maharashtra Control of
Organised Crime Act, 1999 (MCOCA) – The respondent-accused
filed the bail application before the Special Judge, which was
rejected – The Single Judge of the High Court was also not inclined
to grant any relief to the respondent and the application was
                                                                          E
withdrawn – Thereafter, the accused filed writ petition before the
Division Bench of the High Court and sought to strike down
s. 23(1)(a) and s.21(4) of the MCOCA, as the said provisions were
unconstitutional and violative of Arts.14 and 21 of the Constitution
– The Division Bench of the High Court observed that the order
passed by the Additional Commissioner of Police granting approval         F
for invocation of the provisions of the MCOCA suffers from non
application of mind and granted interim relief to the respondent by
releasing the him on bail – On appeal, held: The High Court has
not at all considered the seriousness of the offences alleged against
the accused – After the investigation it was found that the respondent-
                                                                          G
accused is running the Matka business; is providing funds to a
international gangster and his gangs; that the accused is arranging
funds for the expenses of purchasing weapons, information and he
is active member of organized crime syndicate – High Court has
not considered the allegations with respect to other offences under
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                                 307
308            SUPREME COURT REPORTS                      [2021] 9 S.C.R.


A     the IPC – High Court acquitted the accused for the offence under
      the MCOCA at the interim relief stage and granted the final relief at
      the interim stage exonerating the respondent from MCOCA, which
      is wholly impermissible – This can be said to be forum shopping by
      the accused which is highly deprecated and which cannot be
      approved – Therefore, the impugned order passed by the Division
B
      Bench of the High Court is quashed and set aside – Respondent-
      accused directed to surrender and face trial.
            Allowing the appeal, the Court
             HELD: 1. At the outset, it is required to be noted that the
C     allegations against the respondent – accused are very serious in
      nature i.e. offences under Sections 384, 386, 387 read with Section
      34 of the IPC. On considering the material on record the
      investigating agency has invoked the provisions of the
      Maharashtra Control of Organised Crime Act, 1999 (MCOCA).
      After investigation a charge sheet has been filed against the
D     accused for the offences under the IPC as well as under the
      MCOCA. By the impugned order, the Division Bench of the High
      Court has released the accused on bail that too by way of interim
      relief. As per the law laid down by this Court in the catena of
      decisions, the Division Bench ought not to have released the
E     accused on bail by way of interim relief [see the decision of this
      Court in the case of M/s Neeharika Infrastructure Pvt. Ltd. vs.
      State of Maharashtra and Others (Criminal Appeal No.330 of 2021
      decided on 13.04.2021)]. [Para 9][314-E-H]
            2. It is required to be noted that while releasing the accused
F     on bail that too by way of interim relief the High Court has not at
      all considered the seriousness of the offences alleged against
      the accused. After the investigation it has been found that the
      respondent – accused is running the Matka business; is providing
      funds to a international gangster and his gangs; that the accused
      is arranging funds for the expenses of purchasing weapons,
G     information and he is active member of organized crime syndicate.
      By the impugned order, the High Court has observed that the
      sanction to invoke the provisions of the MCOCA is bad in law as
      there is no evidence on record. Therefore, even the High Court

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     THE STATE OF MAHARASHTRA v. PANKAJ JAGSHI                            309
                     GANGAR

has not at all considered the allegations with respect to other           A
offences under the IPC. Even such an observation at the interim
relief stage on the sanction to prosecute/invoke the provisions
of MCOCA was not warranted. Virtually the High Court has
acquitted the accused for the offence under the MCOCA at the
interim relief stage and has granted the final relief at the interim
                                                                          B
stage exonerating the respondent from MCOCA, which is wholly
impermissible. [Para 9.1][314-H; 315-A-C]
       3. It is required to be noted that by the detailed judgment
and order, the Special Judge/MCOCA refused to release the
accused on bail. The accused challenged the same before the
High Court. The bail application preferred by the accused was             C
heard by the Single judge. Learned Single Judge was not inclined
to release the accused on bail and therefore the accused withdrew
the same and thereafter preferred the writ petition before the
Division Bench of the High Court under the guise of challenging
the vires of MCOCA and without noticing the above, the Division           D
Bench of the High Court has released the accused on bail that
too by way of interim relief, which otherwise the accused could
not get before the learned Single Judge and he withdrew the bail
application. The aforesaid can be said to be forum shopping by
the accused which is highly deprecated and which cannot be
approved. On this ground also, the accused is not entitled to be          E
released on bail and the impugned order passed by the High Court
releasing the accused on bail deserves to be quashed and set
aside. [Para 9.2][315-D-F]
      M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of
      Maharashtra and Others (Criminal Appeal No.330 of                   F
      2021 decided on 13.04.2021)] – referred to.
     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.1493 of 2021.
      From the Judgment and Order dated 29.01.2019 of the High Court      G
of Judicature at Bombay in Criminal Writ Petition No.4639 of 2018.
       Sachin Patil, Rahul Chitnis, Aaditya A. Pande, Geo Joseph, Advs.
for the Appellant.

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310            SUPREME COURT REPORTS                           [2021] 9 S.C.R.


A           Siddhartha Dave, Sr. Adv., Aditya Verma, Ms. Priyamvada Mishra,
      Aditya Singh, Advs. for the Respondent.
            The Judgment of the Court was delivered by
            M. R. SHAH, J.
B            1. Feeling aggrieved and dissatisfied with the impugned order dated
      29.01.2019 passed by the Division Bench of the High Court of Judicature
      at Bombay in Criminal Writ Petition No. 4639 of 2018 by which the
      Division Bench by way of an interim relief directed the respondent herein
      – accused be released on bail in Special MCOC No.24 of 2017 arising
      out of C.R. No.I-190 of 2017, registered with Kasarvadavli Police Station,
C     the State of Maharashtra has preferred the present appeal.
            2. At the outset, it is required to be noted that the present is a
      glaring example of fourm shopping by the accused which cannot be
      approved at all. The facts speak for itself, which are as under:-

D            2.1 That an FIR was registered as C.R. No.I-190 of 2017 for the
      offences under Sections 384, 386, 387 read with Section 34 of the IPC
      against three named accused persons namely Iqbal Ibrahim Kaskar, Israr
      Jamil Sayyed and Mumtaz Ejaj Shaikh @ Raju. The case on behalf of
      the prosecution has been elaborately dealt with and considered by the
      learned Special Judge (MCOC), Thane, in his order dated 26.03.2018,
E     passed below Exh. 15 in MCOC No.24 of 2017, by which the learned
      Special Judge rejected the application submitted by the respondent herein
      for bail and therefore the same is not repeated. However, it is to be
      noted that during the course of the investigation, it was found that there
      is organized crime by international gangster Shakil Babu Mohiddin Shaikh
F     @ Chhota Shakil @ C.S. and Iqbal Ibrahim Kaskar @ Iqbal Hasan
      Shaikh Ibrahim and it was also found that from time to time, the respondent
      herein was paying the amount to such organized crime syndicate and
      other gangs which they used to use the said amount for taking help of
      other members by paying amount to them and it was also found that the
      respondent herein is running the Matka business in Borivali, Mumbai,
G     after prior sanction the provisions of Maharashtra Control of Organised
      Crime Act (MCOCA) came to be applied. After investigation a charge
      sheet was submitted under the provisions of the IPC as well as under
      the MCOCA. The respondent herein – accused filed the bail application
      before the learned Special Judge. By a detailed and reasoned judgment
      and order and after considering the statements relied upon by the
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     THE STATE OF MAHARASHTRA v. PANKAJ JAGSHI                                  311
                GANGAR [ M. R. SHAH, J.]

prosecution which are part of the charge sheet, the learned Special Judge       A
rejected the said bail application vide order dated 26.03.2018.
       3. Feeling aggrieved and dissatisfied with the rejection of the bail
application by the learned Special Judge, the respondent herein – accused
approached the High Court by way of bail application No.855 of 2018.
The same was heard by the learned Single Judge. From the order dated            B
13.07.2018 passed by the learned Single Judge, it appears and it cannot
be disputed that after hearing the learned counsel appearing on behalf of
the respondent herein - accused at length and when the High Court was
not inclined to grant any relief, the learned counsel on instructions
withdrew the said bail application. Therefore, the aforesaid bail application
came to be dismissed as withdrawn by the learned Single Judge vide              C
order dated 13.07.2018. Immediately on withdrawal of the aforesaid
bail application the respondent – accused filed the writ petition before
the Division Bench of the High Court and prayed for the following reliefs:-
      “(a) Strike down Section 23(1)(a) of the MCOCA being absolutely
      arbitrary, unguided, uncanalized and thus, unconstitutional being         D
      violative of the Articles 14, 19 and 21 of the Constitution of India;
      or to save it from unconstitutionality to read down, expound,
      delineate the ambit & scope of the words ‘prior approval’ occurring
      in Section 23(1)(a) of MCOCA so as to ensure that the same is
      not rendered an empty formality dependent upon whims, fancies,            E
      prejudices and caprices of, the concerned officer;
      (b) Strike down the provision of Section 21(4) of MCOCA and
      declare the twin conditions imposed for release on bail, as
      encapsulated therein, to be unconstitutional and violative of Article
      14 and 21 of the Constitution of India;                                   F
      (c) To quash and set aside the impugned prior approval Order
      dated 10.10.2017 (Exh-B supra) issued under impugned Section
      23(1)(a) qua the petitioner, and consequently to quash the
      proceedings qua the Petitioner in Special MCOCA Case no.24 of
      2017 under Section 384, 386, 387, 34 & 120 (b) of IPC and 3(1)(ii),       G
      3(2), 3(4) and 3(5) of MCOCA, 1999 arising out of C.R. No. I/
      190 of 2017 (Exh-A supra) of Kasarvadavli Police Station, at Thane
      and Charge Sheet dated 29.11.2017 (Exh-F supra) insofar as the
      offences under Sec 3(1)(ii), 3(2), 3(4) and 3(5) of MCOCA have
      been invoked qua him;
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312            SUPREME COURT REPORTS                          [2021] 9 S.C.R.


A           (d) To set the petitioner at liberty on such terms as deemed fit in
            the interest of justice;
            (e) At the interim/ad-interim stage, pending final disposal, of the
            instant Application, the Petitioner may please be released from
            custody in Special MCOCA Case No.24 of 2017, arising out of
B           C.R. No.l-190/2017 registered with Kasarvadavli Police Station,
            Thane, on such interim bail, on suitable terms and conditions, as
            this Hon’ble Court deems fit and proper;”
             3.1 By the impugned order the High Court has directed to issue
      RULE in the writ petition challenging vires of Section 23(1)(a) of the
C     MCOCA and on the prayer to strike down the provisions of Section
      21(4) of the MCOCA and to declare the twin conditions imposed for
      release on bail to be unconstitutional and violative of Articles 14 and 21
      of the Constitution of India. Therefore, as such the constitutionality of
      aforesaid two provisions is yet to be considered by the High Court in the
      pending writ petition. However, in writ petition challenging the vires of
D     aforesaid two provisions, the High Court has also considered and dealt
      with on merits the sanction/approval by the Additional Commissioner of
      Police to invoke the provisions of MCOCA and though a detailed
      appreciation of evidence is not required at this stage, and as if the High
      Court was exercising the powers conferred under Section 482 Cr.PC
E     and/or considering the discharge application, the High Court has observed
      that the order passed by the Additional Commissioner of Police dated
      10.10.2017 granting approval for invocation of the provisions of the
      MCOCA suffers from non application of mind.
             Thereafter after holding so and while admitting writ petition
F     challenging vires of aforesaid two provisions, the High Court has granted
      the interim relief by directing that the respondent herein – accused be
      released on bail in Special MCOC No.24 of 2017 arising out of C.R.
      No.I-190/2017. Thus, the High Court has as such granted the relief of
      bail which the respondent – accused could not get before the learned
      Single Judge in the bail application.
G
            4. Feeling aggrieved and dissatisfied with the impugned judgment
      and order passed by the Division Bench of the High Court releasing the
      respondent herein – accused on bail that too by way of interim relief, the
      State Government has preferred the present appeal.

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     THE STATE OF MAHARASHTRA v. PANKAJ JAGSHI                               313
                GANGAR [M. R. SHAH, J.]

      5. Learned counsel appearing on behalf of the appellant – State        A
has vehemently submitted that in the facts and circumstances of the
case, the High Court has committed a grave error in releasing the
respondent – accused on bail and that too by way of interim relief.
        5.1 It is submitted that while releasing the accused on bail, the
High Court has not at all considered the gravity of the offences alleged.    B
It is submitted that the High Court has also not properly appreciated and
considered the fact that earlier by a detailed judgment and order the
learned Special Judge/MCOCA Judge rejected the bail application and
even thereafter the accused preferred the bail application before the
High Court, which was heard by the learned Single Judge and after
hearing the learned counsel appearing on behalf of the respective parties    C
including the learned counsel appearing on behalf of the accused, as the
learned Single Judge was not inclined to release the accused on bail, the
accused withdrew the said bail application and thereafter filed a writ
petition before the Division Bench of the High Court under the guise of
challenging the vires of the provisions of MCOCA and prayed for interim      D
relief which unfortunately has been granted by the Division Bench of
the High Court.
       5.2 It is submitted that the High Court has not at all considered
the fact that after the investigation a detailed charge sheet has been
filed by the investigating agency against the accused.                       E
      5.3 It is submitted that as such releasing the accused on bail by
the Division Bench of the High Court by way of interim relief is
unsustainable in law in view of the decision of this court in the case of
M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra
and Others (Criminal Appeal No.330 of 2021 decided on 13.04.2021)            F
       5.4 It is submitted that as such by the impugned order the High
Court has virtually acquitted the accused for the offences under the
MCOCA and that too at the interim stage. It is submitted that at the
interim stage, the High Court has set aside the approval/sanction given
by the appropriate authority invoking the MCOCA, which is inopportune        G
and untimely.
       5.5 It is submitted that as such there was sufficient material on
record collected by the investigating agency, which was part of the charge
sheet that the respondent – accused arranges funds for the expenses of
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314             SUPREME COURT REPORTS                           [2021] 9 S.C.R.


A     purchasing weapons, information and he is active member of the organized
      crime syndicate.
            6. Making the above submissions, it is prayed to allow the present
      appeal.
            7. The present appeal is opposed by Shri Siddhartha Dave, learned
B     Senior Advocate appearing on behalf of the respondent – accused.
             7.1 It is submitted that in the facts and circumstances of the case
      and on considering the material available on record, the High Court has
      rightly held that the sanction to prosecute the accused under the MCOCA
      is bad in law. It is submitted that the High Court has specifically observed
C     that there is no tangible material to invoke the provisions of the MCOCA.
      It is submitted that therefore the High Court has rightly released the
      accused on bail.
             7.2 It is submitted that the respondent has been released on bail
      by the High Court in the year 2019 and more than two years have passed
D     and there are no allegations that the accused has misused the liberty
      while granting bail to him. Therefore, it is requested not to cancel the
      bail granted by the High Court, in exercise of powers under Article 136
      of the Constitution of India.
            8. We have heard the learned counsel appearing on behalf of the
E     respective parties at length.
              9. At the outset, it is required to be noted that the allegations
      against the respondent – accused are very serious in nature i.e. offences
      under Sections 384, 386, 387 read with Section 34 of the IPC. On
      considering the material on record the investigating agency has invoked
F     the provisions of the MCOCA. After investigation a charge sheet has
      been filed against the accused for the offences under the IPC as well as
      under the MCOCA. By the impugned order, the Division Bench of the
      High Court has released the accused on bail that too by way of interim
      relief. As per the law laid down by this Court in the catena of decisions,
      the Division Bench ought not to have released the accused on bail by
G
      way of interim relief [see the decision of this Court in the case of M/s
      Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra and
      Others (Criminal Appeal No.330 of 2021 decided on 13.04.2021)]
             9.1 It is required to be noted that while releasing the accused on
      bail that too by way of interim relief the High Court has not at all
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     THE STATE OF MAHARASHTRA v. PANKAJ JAGSHI                                  315
                GANGAR [M. R. SHAH, J.]

considered the seriousness of the offences alleged against the accused.         A
After the investigation it has been found that the respondent – accused
is running the Matka business; is providing funds to the Chhota Shakil
and his gangs; that the accused is arranging funds for the expenses of
purchasing weapons, information and he is active member of organized
crime syndicate. By the impugned order, the High Court has observed
                                                                                B
that the sanction to invoke the provisions of the MCOCA is bad in law
as there is no evidence on record. Therefore, even the High Court has
not at all considered the allegations with respect to other offences under
the IPC. Even such an observation at the interim relief stage on the
sanction to prosecute/invoke the provisions of MCOCA was not
warranted. Virtually the High Court has acquitted the accused for the           C
offence under the MCOCA at the interim relief stage and has granted
the final relief at the interim stage exonerating the respondent from
MCOCA, which is wholly impermissible.
       9.2 It is required to be noted that by the detailed judgment and
order, the learned Special Judge/MCOCA refused to release the accused           D
on bail. The accused challenged the same before the High Court. The
bail application preferred by the accused was heard by the learned Single
judge. Learned Single Judge was not inclined to release the accused on
bail and therefore the accused withdrew the same and thereafter preferred
the writ petition before the Division Bench of the High Court under the
guise of challenging the vires of MCOCA and without noticing the above,         E
the Division Bench of the High Court has released the accused on bail
that too by way of interim relief, which otherwise the accused could not
get before the learned Single Judge and he withdrew the bail application.
The aforesaid can be said to be forum shopping by the accused which is
highly deprecated and which cannot be approved. On this ground also,            F
the accused is not entitled to be released on bail and the impugned order
passed by the High Court releasing the accused on bail deserves to be
quashed and set aside.
        10. Now so far as the submissions on behalf of the accused that
as the accused is released in the year 2019 pursuant to the impugned            G
order passed by the High Court and thereafter he has not misused the
liberty shown to him while releasing him on bail therefore the impugned
order may not be quashed and the bail may not be cancelled is concerned,
it is required to be noted that as per the law laid down by this Court in the
catena of decisions quashing and setting aside the wrong order releasing
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316                SUPREME COURT REPORTS                           [2021] 9 S.C.R.


A     the accused on bail and to cancel the bail of the accused on misuse of
      liberty etc., both stand on different footing and the different criteria shall
      be applicable. 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.
B            11. In view of the above and for the reasons stated above, the
      present appeal succeeds. The impugned order dated 29.01.2019 passed
      by the Division Bench of the High Court in Criminal Writ Petition No.4639
      of 2018 releasing the respondent – accused on bail in connection with
      Special MCOC No.24 of 2017 arising out of C.R. No. I-190 of 2017
      registered with Kasarvadavli Police, is hereby quashed and set aside.
C     Consequently the respondent – accused is directed to surrender forthwith
      and to face the trial. If the respondent does not surrender forthwith, his
      presence be secured by the concerned Court by issuing non-bailable
      warrant. The present appeal is accordingly allowed.

D     Ankit Gyan                                                       Appeal allowed.




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