Power To Grant Bail Should Be Subject To Embargo Put In By Specific Provision Under Special Enactment: SC Sets Aside Bail Order In MCOCA Case

The Apex Court clarified that when there is an embargo put in by a specific provision under a special enactment in the matter of grant of bail in respect of offences allegedly committed thereunder, the power to grant bail should necessarily be subject to satisfaction of the conditions mentioned in such specific provision.

The widow of the victim in the Maharashtra Control of Organized Crime Act Case approached the Apex Court with a Special Leave Petition against the Bombay High Court Order granting bail to the accused respondents.

The Division Bench of Justice C.T. Ravikumar and Justice Sanjay Karol said, “There can be no doubt with respect to the position that materials collected during the investigation would not mature into evidence at the stage of consideration of an appeal and as such, the admissibility and evidentiary value are matters to be decided during the trial and are not matters for consideration at the present stage of the proceedings.”

The facts of the case suggested that there was a long-drawn civil dispute between the deceased Rajesh Haridas Kanabar on one side and the families of respondents on the other over a certain extent of land situated at Bavdhan in Pune. The Respondents-accused appointed the third accused as their agent to take care of their legal matter and other issues relating to the aforesaid property. The accused were under the impression that the deceased was not favourably responding to the settlement. In the year 2020, the parties attended a revenue proceeding. On the way back, the deceased was shot by the fourth accused person and was declared dead at the Hospital.

Initially, a charge sheet was filed against the accused sans accusation of commission of offences under MCOCA. However, a supplementary charge sheet was filed later whereunder offences under MCOCA were also inserted against them alleging that the accused persons are members of the Organised Crime Syndicate of which accused No.4 is the gang leader and based on the conspiracy hatched between them, they killed Rajesh Kanabar to have unlawful gains.

One of the core contentions of the Appellant was that a bare perusal of the impugned order itself would bring home the fact that the order granting bail to the respondents-accused Nos.1 and 2 in the MCOCA case was an outcome of consideration akin to a mini-trial. It was argued that though there was an irrecusable duty on the Court to consider whether the twin conditions were to be satisfied in terms of Section 21 (4) of MCOCA the Court transgressed into impermissible area, ignoring the fact that it was only considering an application for bail.

The Bench, at the outset, observed, “There cannot be any doubt with respect to the position that since MCOCA is involved in this case on hand, the accused/respondent Nos.2 and 3 could not have sought for bail in exercise of the discretion available under Section 439, Cr.P.C., in the matter, in view of the rigours under Section 21(4) of the MCOCA.”

The Bench noticed that the public prosecutor, before the High Court, resisted the prayer for grant of bail and prayed the Court to consider the question of grant of bail taking into account the rigour of Section 21(4) of the MCOCA. However, the impugned judgment revealed that the order did not reflect such consideration as has been required in respect of matters involving offences under MCOCA in terms of the provisions thereunder.

“When there is an embargo put in by a specific provision under a special enactment in the matter of grant of bail in respect of offences allegedly committed thereunder, the power to grant bail should necessarily be subject to satisfaction of the conditions mentioned in such specific provision”, it said.

It was further held that no serious effort was required to pick out such observations in the form of findings made in the impugned order by the High Court in regard to the role of the accused persons involved in the crime in question. In light of the observations partaking the character of findings, the Bench held that the appellant was purportedly justified in contending that the manner of consideration and the conclusions arrived at in pursuance thereof would cause prejudice to the prosecution during the trial and if they are allowed to remain, it would deprive them of a fair trial.

“In short, appreciation of materials on record for the purpose of forming a definite opinion with respect to the question as to whether an accused person(s) had played roles or not, in the crime concerned is not permissible while considering an application for grant of bail. At any rate, the afore extracted observations ought not to have been made by the High Court regarding the roles played or not played by the accused Nos.1, 2 and 3 in the above mentioned MCOCA case”, it held.

The Bench also emphasized that the impugned order was infected with absence of consideration which ought to have been bestowed by the Court in the matter of grant of bail taking note of the involvement of allegation of offence(s) under the MCOCA Act against the respondent Nos. 2 and 3. “It is also a matter of concern that in spite of the fact that the accused No.3 was not a party before the High Court, the High Court made specific finding to the effect that he played a direct role”, it said.

It was, thus, observed that the bail application moved by respondent Nos.2 and 3 ought to have been considered in view of the involvement of the allegation of commission of offences under MCOCA in view of Section 21(4) of MCOCA. Allowing the appeal, the Bench remanded the application back to the High Court for fresh consideration.

Cause Title: Jayshree Kanabar v. State of Maharashtra & Ors (Neutral Citation: 2025 INSC 13)

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