Protection From Arrest In MCOCA Case Can Be Granted If There Is No Mens Rea : Bombay HC [Read Judgment]

A division bench of Justice Ranjit More and Justice Bharati Dangre held that there was non-application of mind on part of the IG, CID who granted sanction to prosecute the petitioner under MCOCA and there was absence of mens rea.

There is specific bar to grant of anticipatory bail in a case registered under MCOCA as per Section 21 (3) of the Act. Citing this provision, the petitioner was denied pre-arrest bail by the Sessions Court. After that, he filed a writ petition in the High Court, challenging the constitutionality of Section 21(3) of MCOCA, and seeking protection from arrest.

Case Background

The petitioner Gambhir was allotted a tender to run the Sai Bhushan canteen at civil hospital in Ahmednagar. On February 12, 2017, at a dinner party hosted by winning candidates of panchayat samiti and zila parishad elections, liquor was served and 9 people died as a result of consuming the said liquor and 13 others became seriously ill. Police investigation revealed that the fatalities happened as a result of consuming illicit liquor that was being manufactured at the civil hospital canteen.

Amongst the attendees of the said dinner party were two brothers of the complainant Baban Avhad. The FIR was registered under Sections 304, 328 read with Section 34 of the and Sections 65A, 65B, 65C, 65D, 65E, 68A and 68B and Section 18(1) and (2) of the Maharashtra Prohibition Act, 1949.

During investigation, it was revealed that the alcohol, which was supplied in the party was manufactured in Sai Bhushan canteen at the City Civil Hospital, District Ahmednagar. Thereafter, the said canteen fell within the loop of investigation and the petitioner was arraigned as an accused after a nexus was established. Apart from the petitioner, 19 others were named as accused. A proposal was made to invoke MCOCA against the accused.

On receipt of the proposal, the Special Inspector General of Police, CID, Pune, accorded his approval under Section 23(1)(a) of the MCOCA on July 13, 2017. The approval order brought out that Jagjitsingh Gambhir (petitioner's cousin) had formed an Organized Crime Syndicate and was engaged in unlawful activities with the object of gaining pecuniary benefits for himself and other members of the gang.

Subsequent sanction under sub-Section (2) of Section 23 of MCOCA was granted by the Additional Director General of Police, CID, Pune, by an order dated August 10, 2017.

Submissions and Judgement

The petitioner submitted that the High Court while exercising its writ jurisdiction should weigh and decide as to whether such proceedings are to be quashed or not and this is distinct from the grant of interim protection against arrest. The petitioner argued that there was clear absence of mens rea as far as petitioner's culpability was concerned.

Petitioner being the successful bidder, was awarded the tender to run the said canteen. However, he never complied with the condition in the tender document of depositing the security and Bank Guarantee and therefore the possession of the canteen was never made over to him, argued the petitioner.

It was also pointed out that during the course of investigation it was revealed that rent for four months, was deposited by another accused Zakir Shaikh. The petitioner submitted that his client was not involved in the conduct of its day-to-day affairs.

Upon examining the arguments advanced, Court noted-

"Perusal of the entire material relied upon by the prosecution disclose that the canteen was allotted by tender process to the petitioner but since the Petitioner did not complete the formalities, he was never physically placed in possession of the canteen and at the most, the case of the prosecution can be believed to the extent that though the canteen was allotted to the Petitioner, he had sublet it in the year 2013 itself and Jagjit Singh Gambhir, a distant cousin was running the canteen through Mohan Duggal who had made a statement that he had deposited an amount of Rs.50,000/- with Jitu and was paying rent to Zakir Shaikh.

The prosecution has not collected any evidence in form of any statement leading to a conclusion and establishing that in the year 2017 when the incident took place in the month of February, the Petitioner was in any way connected to the running of Sai Bhushan canteen of the Civil Hospital at Ahmednagar."

Referring to the element of mens rea essential for prosecuting the accused in the first place, Court observed-

"The essence of criminal law has been said to lie in the maxim - "actus non facit reum nisi mens sit rea". There can be no crime without an evil mind and therefore the essence of an offence be it under the IPC or any other law for the time being in force, is the wrongful intent, without which an offence cannot be established."

Further,

"In the case of Bharat Shantilal Shah & Ors. v. State of Maharashtra, which decided the constitutional validity of the MCOCA, the Division Bench of this Court while upholding the validity pronounced that the provisions of Sections 3 and 4 of the MCOCA contemplate the existence of mens rea inherently and shall always be read therein as a necessary ingredient of the offence."

Thus, Court allowed the petition noting-

"In such circumstances, we are prima facie satisfied that the order granting sanction to prosecute the Petitioner by the Special Inspector General of Police, CID, Pune, suffers from non-application of mind as no material is brought on record in the form of Charge Sheet justifying invocation of the provisions of MCOCA against the Petitioner. In absence of any mens rea, knowledge or intention, if the Petitioner is subjected to the rigors of trial and with the stringent provisions of being incarcerated in the absence of a provision for anticipatory bail and the grant of bail being subjected to stringent condition enumerated in Section 23 of the Act, in our considered view the Petitioner is entitled for protection against his arrest in the said offence reserving the question of determination of validity of Section 21(3), in appropriate proceedings."

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