2015 (4) TMI 1222 - SC - Indian Laws

Bail application - Section 21 of the MCOCA - the Special Judge in his order dated 31.07.2009 took the view that MCOCA was not applicable to Special Case No.1/2009 and consequently by invoking Section 11 of MCOCA, directed the case to be tried by the regular Court - Whether the common order of the Division Bench dated 19.07.2010 in having set aside the order of the Special Judge in Special Case No.1 of 2009 discharging the appellants from the said case on the ground that MCOCA was not applicable to the said case and consequently the case was to be tried by the Regular Court under Section 11 of MCOCA calls for interference? - Held that - we are able to state the legal position without any ambiguity to the effect that in the event of a Judicial first class Magistrate or an empowered second class Magistrate having taken cognizance of an offence based on a police report as stipulated under Section 173(2)(i), such cognizance of an offence would fulfill the requirement of that part of the definition under Section 2(1)(d) of MCOCA. Once we are able to ascertain the said legal position by way of strict interpretation, without any ambiguity, we also wish to refer to various decisions relied upon by either party to note whether there is any scope of contradiction with reference to said legal position. There is no scope even for the limited purpose of Section 21(4)(b) to hold that application of MCOCA is doubtful. We have held that the said appellant A-7 had every nexus with all the three crimes, namely, Parbhani, Jalna and Malegaon and, therefore, the bar for grant of bail under Section 21 would clearly operate against him and there is no scope for granting any bail. Insofar as the rest of the appellants are concerned, for the purpose of invoking Section 21(4)(b), namely, to consider their claim for bail, it can be held that for the present juncture with the available materials on record, it is not possible to show any nexus of the appellants who have been proceeded against for their involvement in Malegaon blast with the two earlier cases, namely, Parbhani and Jalna. There is considerable doubt about their involvement in Parbhani and Jalna and, therefore, they are entitled for their bail applications to be considered on merits. Whether for the purpose of grant of bail under Section 21(4)(b) of MCOCA, can it be held that the application of the said Act is not made out against the appellants and consequently the rejection of bail by the trial Court and as confirmed by the learned Single Judge of the Bombay High Court is justified? - Held that - The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. Since the occurrence is of the year 2008 and nearly seven years have gone by, it is imperative that the Special Court commence the trial at the earliest and conclude the same expeditiously. Bail application disposed off.

Issues Involved:
1. Applicability of the Maharashtra Control of Organized Crime Act, 1999 (MCOCA).
2. Cognizance of earlier offences and competency of the court.
3. Nexus between the accused and organized crime syndicate.
4. Definition and scope of "organized crime" and "promoting insurgency."
5. Consideration of bail under Section 21(4)(b) of MCOCA.

Detailed Analysis:

1. Applicability of MCOCA:
The core issue across all appeals was whether the provisions of MCOCA were applicable. The appellants argued that the definition of "continuing unlawful activity," "organized crime," and "organized crime syndicate" under Section 2(1)(d), (e), and (f) of MCOCA were not satisfied. The prosecution contended that the appellants were part of an organization called "Abhinav Bharat" and were involved in multiple criminal activities, including the Malegaon bomb blast.

2. Cognizance of Earlier Offences and Competency of the Court:
The appellants argued that the earlier offences (Parbhani and Jalna bomb blasts) were not connected to "Abhinav Bharat" and that cognizance of these offences was taken after the Malegaon blast. The court held that cognizance of an offence is taken by a competent court when a Magistrate first takes judicial notice of an offence. It was established that the charge-sheets in Parbhani and Jalna were filed within the preceding 10 years from the Malegaon blast, satisfying the requirement of Section 2(1)(d) of MCOCA.

3. Nexus Between the Accused and Organized Crime Syndicate:
The appellants contended that the same gang must be involved in all three cases (Parbhani, Jalna, and Malegaon) to invoke MCOCA. The court found that A-7 (Rakesh Dattaray Dhawade) had a nexus with the organized crime syndicate involved in all three cases. However, for the other appellants, no such nexus was established with the earlier cases of Parbhani and Jalna.

4. Definition and Scope of "Organized Crime" and "Promoting Insurgency":
The appellants argued that "organized crime" under Section 2(1)(e) of MCOCA requires pecuniary gain. The court clarified that the definition includes activities done for pecuniary benefits, undue economic or other advantages, or promoting insurgency. The term "promoting insurgency" was interpreted to mean creating a breakdown of peace and tranquility, which can be independent of pecuniary gain.

5. Consideration of Bail Under Section 21(4)(b) of MCOCA:
The court examined whether there were reasonable grounds to believe that the appellants were not guilty of offences under MCOCA for the purpose of granting bail. For A-7, the court found sufficient nexus with the organized crime syndicate and denied bail. For the other appellants, the court found enough doubt about their involvement in the earlier cases and directed the Special Judge to consider their bail applications on merits.

Conclusion:
- The court upheld the Division Bench's decision that cognizance is of the offence, not the offender.
- The appeals of A-7 (Rakesh Dattaray Dhawade) were dismissed, and he was denied bail.
- The other appellants were granted the opportunity to have their bail applications considered on merits by the Special Judge.
- The court emphasized the need for a speedy trial and requested the Chief Justice of the Bombay High Court to ensure the early commencement and conclusion of the trial.

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