Forum Shopping- To sought for bail under the pretext of challenging the constitutionality of a law is highly deprecated and in such instances bail should not be Allowed: Supreme Court of India
After realizing that the learned Single judge hearing his bail application would not grant him bail, the accused herein had withdrawn that application and had then proceeded to file a writ petition before the High Court challenging the vires of certain sections of the Maharashtra Control of Organised Crime Act (MCOCA). Without noticing the above, the Division Bench of the High Court had released the accused on bail that too by way of interim relief, which otherwise the accused would not have gotten before the learned Single Judge. The aforesaid can be said to be forum shopping by the accused which is highly deprecated and which cannot be approved. The same was observed by Hon’ble Mukeshkumar Rasikbhai Shah, J in the matter of The State of Maharashtra vs. Pankaj Jagshi Gangar – [Criminal Appeal No. 1493 of 2021]. In this case, an FIR was registered for the offences under the IPC against the accused. During the course of the investigation, it was also found that the respondent herein paid money to organized crime syndicate and other gangs. After investigation a charge sheet was submitted under the provisions of the IPC as well as under the MCOCA. The respondent herein filed a bail application before the learned Special Judge which was rejected and the accused approached the High Court and when the High Court was not inclined to grant any relief, the learned counsel on instructions withdrew the said bail application. Immediately on withdrawal of the aforesaid bail application the respondent filed a writ petition before the Division Bench of the High Court and prayed to strike down Section 23(1)(a) and Section 21(4) of the MCOCA on grounds of it being ultra vires the constitutional in violation of the Articles 14, 19 and 21 of the Constitution of India. As such the constitutionality of the of aforesaid two provisions is yet to be considered by the High Court in the pending writ petition. But after holding so and while admitting the writ petition, the High Court granted the interim relief by directing that the respondent be released on bail. Due to this, the State Government has preferred the present appeal. The learned Advocate appearing on behalf of the appellant – State submitted that in the facts and circumstances of the case, the High Court has committed a grave error in releasing the respondent on bail and that too by way of interim relief. It is submitted that while releasing the accused on bail, the High Court did not consider the gravity of the offences alleged. It was 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). The learned advocate general appearing on behalf of the respondents 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 was submitted that the respondent has been released on bail by the High Court in the year 2019 and more than two years have passed and there are no allegations that the accused has misused the liberty while granting bail to him. Therefore, it was requested not to cancel the bail granted by the High Court, in exercise of powers under Article 136 of the Constitution of India. Supreme court after perusing the facts and arguments presented, held that – “While releasing the accused on bail that too by way of interim relief the High Court had not at all considered the seriousness of the offences alleged against the accused. By the impugned order, the High Court had observed that the sanction to invoke the provisions of the MCOCA is bad in law as there is no evidence on record. Therefore, it is noted that the High Court had not considered the allegations with respect to other offences under the IPC, even if such an observation at the interim relief stage on the sanction to prosecute/invoke the provisions of MCOCA was not warranted. It is required to be noted that the bail application preferred by the accused was heard by the learned Single judge who 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 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 released on bail and the impugned order passed by the High Court releasing the accused on bail deserves to be quashed and set aside.”
1. Feeling aggrieved and dissatisfied with the impugned order 4639 of 2018 by which the Division Bench by way of an interim relief directed the respondent herein accused be Station the State of Maharashtra has preferred the present 2. At the outset it is required to be noted that the present is a glaring example of fourm shopping by the accused which offences under Sections 384 386 387 read with Section 34 Raju. The case on behalf of the prosecution has been JudgeThane in his order dated 26.03.2018 passed Special Judge rejected the application submitted by the respondent herein for bail and therefore the same is not by international gangster Shakil Babu Mohiddin Shaikh Chhota Shakil @ C.S. and Iqbal Ibrahim Kaskar @ Iqbal to time the respondent herein was paying the amount to used to use the said amount for taking help of other Borivali Mumbai after prior sanction the provisions of to be applied. After investigation a charge sheet was 3. Feeling aggrieved and dissatisfied with the rejection of the application No.855 of 2018. The same was heard by the learned Single Judge. From the order dated 13.07.2018 learned counsel on instructions withdrew the said bail order dated 13.07.2018. Immediately on withdrawal of the unguided being absolutely arbitrary uncanalized and thus unconstitutional being violative of the Articles 14 19 and 21 of the Constitution of India or to save it from unconstitutionality to read down expound empty formality dependent upon whims fancies prejudices and caprices of the concerned officer for release on bail as encapsulated therein to be unconstitutional and violative of Article 14 and c) To quash and set aside the impugned prior petitioner and consequently to quash the Case no.217 under Section 384 386 387 34 & 120of IPC and 3(1)(ii) 3(2) 3(4) and 3(5 2017 of Kasarvadavli Police Station at Thane and Charge Sheet dated under Sec 3(1)(ii) 3(2) 3(4) and 3(5) of MCOCA disposal of the instant Application the Petitioner No.l­190 2017 registered with Kasarvadavli Police Station Thane on such interim bail on suitable terms and conditions as this Hon ble of the MCOCA and on the prayer to strike down 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 challenging the vires of aforesaid two provisions the High Court has also considered and dealt with on merits the to invoke the provisions of MCOCA and though a detailed Section 482 Cr.PC and or considering the discharge application the High Court has observed that the order passed by the Additional Commissioner of Police dated has granted the interim relief by directing that the MCOC No.24 of 2017 arising out of C.R. No.I­190 2017 which the respondent accused could not get before the 4. Feeling aggrieved and dissatisfied with the impugned too by way of interim relief the State Government has has vehemently submitted that in the facts and 5.1 It is submitted that while releasing the accused on bail the High Court has not at all considered the gravity of the by a detailed judgment and order the learned Special thereafter the accused preferred the bail application before the High Court which was heard by the learned Single Judge the respective parties 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 relief which has been filed by the investigating agency against the the case of M s Neeharika Infrastructure Pvt. Ltd. Vs State of Maharashtra and Others (Criminal Appeal No.330 Court has virtually acquitted the accused for the offences under the MCOCA and that too at the interim stage. It is aside the approval sanction given by the appropriate authority invoking the MCOCA which is inopportune and 6. Making the above submissions it is prayed to allow the 7. The present appeal is opposed by Shri Siddhartha Dave learned Senior Advocate appearing on behalf of the 7.1 It is submitted that in the facts and circumstances of the High Court has rightly held that the sanction to prosecute have passed and there are no allegations that the accused it is requested not to cancel the bail granted by the High Court in exercise of powers under Article 136 of the 8. We have heard the learned counsel appearing on behalf of 9. At the outset it is required to be noted that the allegations 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 MCOCA. After investigation a charge sheet has been filed under the MCOCA. By the impugned order the Division Bench of the High Court has released the accused on bail this Court in the catena of decisions the Division Bench ought not to have released the 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 9.1 It is required to be noted that while releasing the accused on at all considered the seriousness of the offences alleged that the respondent accused is running the Matka business is providing funds to the Chhota Shakil and his 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 MCOCA was not warranted. Virtually the High Court has interim stage exonerating the respondent from MCOCA 9.2 It is required to be noted that by the detailed judgment and writ petition before the Division Bench of the High Court under the guise of challenging the vires of MCOCA and 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 High Court releasing the accused on bail deserves to be 10. Now so far as the submissions on behalf of the accused that on bail therefore the impugned order may not be quashed catena of decisions quashing and setting aside the wrong a question of cancellation of bail but it is a question of quashing and setting aside the wrong order passed by the 11. In view of the above and for the reasons stated above the present appeal succeeds. The impugned order dated in Criminal Writ Petition No.4639 of 2018 releasing the respondent accused on bail in connection with Special registered with Kasarvadavli Police is hereby quashed and concerned Court by issuing non­bailable warrant. The