Detention Of Person Under MCOCA Should End Once Sanction To Prosecute Is Denied: Bombay HC

While speaking out most vocally in favour of ensuring the right to personal liberty as enshrined in Article 21 of the Constitution, the Bombay High Court in a most learned, laudable, landmark, logical and latest judgment titled Dinesh Ganesh Indre and Others vs State of Maharashtra in Bail Application No.-210 of 2024 and cited in Neutral Citation No.: 2024:BHC-AS:14690 in the exercise of its criminal appellate jurisdiction that was heard on March 18, 2024 and then finally pronounced on March 26, 2024 has minced just no words absolutely to unequivocally hold that the detention of an accused under the Maharashtra Control of Organised Crimes Act (MCOCA/Act) cannot be continued once the competent authority under the Act has refused to grant sanction to prosecute the accused. We must certainly note here that the Single Judge Bench comprising of Hon’ble Mr Justice NJ Jamadar held so while very rightly granting bail to the four persons who were accused under the MCOCA. It must also be noted that the Judge opined that there could possibly be no case of MCOCA if competent authority does not grant sanction to prosecute. So no wonder that the Bombay High Court very rightly directed that all the accused be released on bail.

At the very outset, this brief, brilliant, bold and balanced judgment the Single Judge Bench comprising of Hon’ble Mr Justice NJ Jamadar sets the ball in motion by first and foremost putting forth in para 1 that, “The applicants, who have been arraigned in CR No. 497 of 2023 registered with Malad Police Station, for the offences punishable under Sections 120B, 394, 395 and 412 read with Section 34 of the Indian Penal Code, 1860 (“the Penal Code”), Sections 37 (1)(A) 135 read with Section 142 of Maharashtra Police Act, 1951, have preferred this application to enlarge him on bail.”

To put things in perspective, the Bench envisages in para 2 that, “The gravamen of indictment against the applicants and the co-accused is that in pursuance of a criminal conspiracy, on 20th August, 2023, the first informant was robbed of cash of Rs.1,25,00,000/- kept in two bags by threatening to cause death by pointing a knife. It is further alleged that the applicant and the co-accused had retained the cash amount despite having known that the cash was robbed from the first informant.”

As we see, the Bench discloses in para 3 that, “Applicant No. 1 – Dinesh (A5), the applicant No. 2-Pratik Bhojane (A6) were arrested on 2nd September, 2023 and applicant No. 4-Ravi Yashawante (A8) was arrested on 4th September, 2023.”

As it turned out, the Bench enunciates in para 4 that, “During the course of investigation, it transpired that the co-accused Krushna Godambe (A11), who came to be arrested on 10th September, 2023, was the leader of an organized crime syndicate. Thus, with the prior approval of the competent authority under Section 23(1)(a), the offences punishable under Section 3(1)(ii), 3(2), 3(3), 3(4) of the MCOC Act, 1999 were invoked.”

To recapitulate, the Bench recalls in para 5 that, “Post invocation of MCOCA, the applicant and the co-accused were produced before the Special Court. On 20th November, 2023, an application for extension of period of investigation under Section 21 (2) of the Maharashtra Control of Organized Crime Act, 1999 was filed before the Special Court. By an order dated 28th November, 2023, the learned Special Judge, MCOC Court granted 21 days extension to complete the investigation.”

In hindsight, the Bench then further recalls in para 6 that, “The investigating agency moved a proposal for sanction under Sub Section (2) of Section 23 of the MCOCA, 1999. By an order dated 12th December, 2023, the competent authority declined to grant sanction as envisaged by sub-Section (2) of Section 23 of the MCOCA, 1999. Thereupon, on 12th December, 2023, an application was filed before the learned Special Judge, seeking direction to remit the record and proceedings to the jurisdictional Magistrate as the competent authority refused to grant sanction under Section 23 (2) of the MCOCA, 1999. The learned Special Judge, thus, directed that the record of proceedings be sent to the Court of learned Chief Metropolitan Magistrate. The proceedings in MCOC MA No. 1478 of 2023 were thus disposed of.”

Truth be told, the Bench then discloses in para 7 that, “In the aforesaid backdrop on 13th December, 2023, the applicants preferred an application for default bail under Section 167 (2) of the Code of Criminal Procedure, 1973, before the learned Additional Chief Metropolitan Magistrate, 24th Court, Borivali. On that day, the learned Additional Chief Metropolitan Magistrate directed the prosecution to file its say. In the meanwhile, on 14th December, 2023, the Investigating Officer lodged the charge-sheet at 1.20 pm.”

As things stands, the Bench then lays bare in para 8 stating that, “By the impugned order, the learned ACMM was persuaded to reject the applications for default bail holding, inter alia, that since the learned Special Judge had extended the period by 21 days and that period was to expire on 18th December, 2023 and, in the meanwhile, on 14th December, 2023, the charge-sheet was lodged, the applicants were not entitled to default bail. The learned Magistrate was also of the view that since the application for default bail had not been finally decided by the Court before filing of the charge-sheet, there was no question of grant of bail under Section 167 (2) of the Code, 1973.”

Needless to say, the Bench then stipulates in para 13 that, “I have given anxious consideration to the submissions canvassed across the bar. In the light of the facts of the case and the submissions canvassed by the Counsel for the parties, the pivotal question which crops up for consideration is :

When the right of the accused to seek default bail accrues where during the extended period for completion of investigation, the competent authority declines to grant sanction under Section 23 (2) of MCOC Act, 1999 ?”

Do note, the Bench notes in para 14 that, “Before adverting to explore an answer the aforesaid question, the facts which are rather incontrovertible deserve to be noted. The applicant Nos. 1 and 2 were arrested on 2nd September, 2023. The applicant No. 4 was arrested on 4th September, 2023. Since the applicants and the co-accused have been arraigned for the offences punishable under Sections 120B, 394, 395 and 412 read with Section 34 of the Penal Code, 1860, the case would be covered by the Sub Clause (i) of Clause (a) of the proviso to Section 167 (2) of the Code, 1973. Before the period of 90 days could expire, on 28th November 2023, in exercise of the power conferred under Section 21 (2), the Special Court extended the period to complete the investigation by 21 days. The said extended period was to expire on 18th December, 2023.”

It is then further noted in para 15 that, “As noted above, the competent authority declined to grant sanction to prosecute the applicants and the co-accused for the offences punishable under MCOCA, 1999 on 12th December, 2023. On the very day, the learned Special Court was moved and the matter was remitted to the jurisdictional Magistrate. On the following day i.e. 13th December, 2023, the applicants filed an application for default bail. It is a matter of record that on 14th December, 2023, the charge-sheet was lodged.”

Further, the Bench then points out in para 44 that, “In the case at hand, the learned Magistrate proceeded to hold that as the extended period of 21 days was to expire on 18 December 2023 and the chargesheet was lodged on 14 December 2023, the right to default bail did not accrue even though on 12 December 2023 itself, the competent authority had declined to grant sanction for prosecution under the Act, 1999 and on the following day i.e. 13 December 2023, the applicants had “availed” the right to default bail by filing the application.”

Most significantly, what constitutes the cornerstone of this notable judgment is then laid bare succinctly in para 45 wherein it is mandated that, “In my considered view, the aforesaid approach cannot be countenanced. It may lead to anomalous consequences. It would imply that if the Special Court extends the time for investigation, say on 89th day, by a further 90 days, and on 92nd day, the competent authority refuses sanction for prosecution under the MCOC Act, 1999, the detention of the accused would still be authorized till 180th day. Such a construction has the propensity to impair the cherished personal liberty irredeemably. The correct approach which is in consonance with the constitutional guarantee under Article 21, would be to hold that once the competent authority declines to grant sanction under Section 23(2) of the Act, 1999, the extended period for completion of investigation, would terminate on the day the competent authority declines to grant sanction and on the next day, the right to seek default bail, in the event chargesheet is not filed, accrues to the accused.”

As a corollary, the Bench then very rightly directs ultimately in para 46 that, “I am, therefore, inclined to hold that, in the case at hand, the learned Magistrate was not justified in rejecting the application for default bail. Since the applicants had ‘availed’ their right to default bail by filing an application on 13 December 2022, a day before the chargesheet came to be lodged, the indefeasible right of the applicants stood cemented and, thus, they deserve to be released on bail.”

In a nutshell, we thus see that the Bombay High Court has made it abundantly clear that detention of person under MCOCA should end once sanction to prosecute is denied. It is the bounden duty of the Courts to strictly abide by what the Bombay High Court has held in this leading case so cogently, clearly and convincingly! No denying it!

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.