HC erred in granting final relief at interim stage by exonerating accused from MCOCA; Apex Court calls it glaring example of forum shopping by accused

Read Judgment: State of Maharashtra vs. Pankaj Jagshi Gangar 

Pankaj Bajpai

New Delhi, December 8, 2021: The Supreme Court has held that the action of accused in withdrawing bail application before the Single Judge and thereafter approaching the Division Bench of High Court under the guise of challenging the vires of MCOCA and without noticing the same, the measure taken by the Division Bench in releasing the accused on bail that too by way of interim relief, which otherwise the accused could not get before the Single Judge, amounts to forum shopping by the accused which is highly deprecated. 

A Division Bench of Justice M.R. Shah and Justice Sanjiv Khanna observed that the accused is not entitled to be released on bail and therefore directed Pankaj Jagshi Gangar (Respondent–accused) to surrender forthwith and to face the trial. 

Going by the background of the case, the an FIR came to be registered for the offences u/s 384, 386, 387 r/w/s 34 of the IPC against three named accused persons namely Iqbal Ibrahim Kaskar, Israr Jamil Sayyed and Mumtaz Ejaj Shaikh @ Raju. During the course of investigation, it was found that there is organized crime by international gangster Shakil Babu Mohiddin Shaikh @ Chhota Shakil @ C.S. and Iqbal Ibrahim Kaskar @ Iqbal Hasan Shaikh Ibrahim. 

It was also found that Pankaj Jagshi Gangar (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 is running the Matka business in Borivali, Mumbai, 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–accused accordingly filed the bail application before the Special Judge, which was however rejected. The matter reached High Court, where it was observed that the order passed by the Additional Commissioner of Police granting approval for invocation of the provisions of the MCOCA suffers from non-application of mind. Accordingly, the High Court granted the interim relief by directing that the Respondent be released on bail. Hence, present appeal by State. 

After considering the arguments, the Top Court noted that while releasing the accused 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 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”, observed the Court. 

Speaking for the Bench, Justice Shah noted that 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. 

Even the High Court has not at all considered the allegations with respect to other offences under the IPC, and even such an observation at the interim relief stage on the sanction to prosecute/invoke the provisions of MCOCA was not warranted, added Justice Shah. 

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 stage exonerating the respondent from MCOCA, which is wholly impermissible, concluded the Apex Court.