'Forum Shopping Cannot Be Approved; A Ground To Refuse Relief' : Supreme Court Sets Aside Interim Bail

While setting aside an interim bail granted by the High Court in a MCOCA case, the Supreme Court observed that "forum shopping" can also be a ground to refuse relief.

The accused was facing offences under the Maharashtra Control of Organized Crimes Act(MCOCA) and various IPC offences. He was refused bail by the Special Judge/MCOCA and also the single judge of the Bombay High Court.  After that, he filed a writ petition before the division bench challenging the validity of MCOCA. In the writ petition, the division bench passed an interim order to realise him on bail.

Challenging the division bench order, the State approached the Supreme Court. The Supreme Court noted that the accused had filed a writ petition under the guise of challenging the vires of the statute, after unsuccessful attempts at securing bail from jurisdictional courts. The Court termed this as "forum shopping" and deprecated this conduct in strong words.

"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," the Supreme Court said.

A Bench comprising Justice MR Shah and Justice Sanjiv Khanna also noted that while releasing the accused on bail that too by way of interim relief, the High Court has not at all considered the seriousness of the offences alleged against the accused.

 In present case, the accused was charged with offences under Sections 384, 386, 387 of the IPC and provisions of the MCOCA were invoked against him. Thereafter a charge sheet was filed against the accused for the offences under the IPC as well as under the MCOCA. Further, after investigation it was found that:

• The accused is running the Matka business
• The accused is providing funds to the Chhota Shakil and his gangs
• The accused is arranging funds for the expenses of purchasing weapons, information
• The accused is active member of organized crime syndicate

The Supreme Court has observed that the High Court has not at all considered the allegations with respect to offences under the IPC.

With regard to the High Court's observation that the sanction to invoke the provisions of the MCOCA is bad in law as there is no evidence on record, the Bench has observed that such an observation at the interim relief stage on the sanction to prosecute or invoke the provisions of MCOCA was not warranted.

According to the Bench, the High Court has virtually acquitted the accused for the offence under the MCOCA at the interim relief stage and has granted the final relief at the interim stage exonerating the respondent from MCOCA, which is wholly impermissible.

The Top Court has further observed that as per the law laid down by Supreme Court in the catena of decisions, quashing and setting aside the wrong order releasing the accused on bail and to cancel the bail of the accused on misuse of liberty etc., both stand on different footing and the different criteria shall be applicable.

Therefore, in the present case, it is not a question of cancellation of bail but it is a question of quashing and setting aside the wrong order passed by the court releasing the accused on bail.

Observing so, the Bench found it appropriate to set aside the bail order which led to release of the accused in 2019, and has directed the accused to surrender forthwith and face the trial. If the respondent does not surrender forthwith, the Bench has directed that his presence be secured by the concerned Court by issuing non-­bailable warrant.

The observations have been made and directions been issued by the Apex Court while delivering its judgement in State of Maharashtra's criminal appeal challenging Bombay High Court's order directing accused to be released on bail by way of an interim relief after a Single Bench dismissed the bail application as withdrawn.

Case Title: State of Maharashtra vs Pankaj Jagshi Gangar

Citation : LL 2021 SC 716

Click here to read/download the judgment