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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realizing that the learned Single judge hearing his bail application would not grant him bail, the accused herein had withdrawn that application and had then proceeded to file a writ petition before the High Court challenging the vires of certain sections of the Maharashtra Control of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.”

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Judgement reviewed by Mehvish Alam

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