Gujarat High Court
Yasin @ Bhuro Osmanbhai Kaida vs State Of Gujarat on 11 December, 2023
NEUTRAL CITATION
R/CR.MA/20757/2022 CAV JUDGMENT DATED: 11/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - AFTER
CHARGESHEET) NO. 20757 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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YASIN @ BHURO OSMANBHAI KAIDA
Versus
STATE OF GUJARAT
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Appearance:
MR KRUNAL L SHAHI(6519) for the Applicant(s) No. 1
MR. MITESH AMIN, LD. PUBLIC PROSECUTOR with MR. MANAN MEHTA,
LD. APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 11/12/2023
CAV JUDGMENT
1. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with the FIR being C.R. No.11208044202185 of Page 1 of 15 Downloaded on : Mon Dec 11 20:45:24 IST 2023 NEUTRAL CITATION R/CR.MA/20757/2022 CAV JUDGMENT DATED: 11/12/2023 undefined 2020 registered with the Pradhyuman Nagar Police Station, Rajkot of the offence punishable under Sections 447, 386, 323, 504, 506(2) and 120B of the IPC and Sections 3(1)(1), 3(1)(2), 3(2), 3(4) and 4 of The Gujarat Control of Terrorism and Organized Crime Act, 2015 (for short "GUJCTOC Act")
2. Learned advocate Mr. K.L. Shahi appearing for the applicant has submitted that the first information report has been registered against the applicant-accused on 03.12.2020 and the applicant-accused came to be arrested on 12.12.2020 and since then he is in jail. It is further submitted that the investigation has already been completed and charge-sheet has also been filed in the present case. Learned advocate Mr. Shahi has also submitted that initially the first information report came to be filed against total eleven persons and the applicant-accused is shown as an accused No.8 in the FIR. Learned advocate Mr. Shahi has also submitted that total seven offences have been registered against the applicant- accused and out of those seven offences, in one offence the applicant-accused was acquitted by the learned Magistrate, Rajkot and in another offence, the matter was amicably settled between the parties and the FIR came to be quashed by a Coordinate Bench of this Court. Now so far as the other five offences are concerned, three offences have been registered against the applicant-accused prior to promulgation of the GUJCTOC Act and two offences have been registered after the enactment of the Act, in which, one offence is registered under the Motor Vehicles Act which is a separate and standalone offence not at all connected with the offence committed as the Page 2 of 15 Downloaded on : Mon Dec 11 20:45:24 IST 2023 NEUTRAL CITATION R/CR.MA/20757/2022 CAV JUDGMENT DATED: 11/12/2023 undefined member of the syndicate. Therefore, it appears that in none of the FIRs the present applicant-accused is involved or associated with the organized crime syndicate. All the offences are personal in nature. Learned advocate Mr. Shahi has further submitted that the co-accused persons who have committed offence of causing bodily injuries, offence of loot, robbery and land grabbing on behalf of the syndicate have already been enlarged on bail by a Coordinate Bench of this Court. One co-accused person namely Majid @ Pappu Suleman who is considered to be the right hand of the gang leader has also been enlarged on bail. It is further submitted that the applicant-accused as well as his wife had filed an application against the syndicate leader as well as members of the syndicate in the years 2014 and 2020. The two offences upon which reliance is being placed by the Investigating Agency which came to be registered after the promulgation of the Act have no connection whatsoever with the Organized Crime Syndicate. Both these offences are standalone offence. There are no offences of the applicant-accused with the syndicate. Learned advocate Mr. Shahi has further submitted that the continuance of unlawful activity means that an activity prohibited by law carried out singly or jointly on behalf of the syndicate. The material consideration is whether the activity is undertaken on behalf of the syndicate or not. It is further submitted that the GUJCTOC Act is aimed to target individuals who are connected and concerned with the organized crime syndicate and not meant for the purpose of individual who commits standalone offences. In short, in order to prosecute a person under the provisions of the GUJCTOC Act, there has to Page 3 of 15 Downloaded on : Mon Dec 11 20:45:24 IST 2023 NEUTRAL CITATION R/CR.MA/20757/2022 CAV JUDGMENT DATED: 11/12/2023 undefined be some activity concerning syndicate after the promulgation of the Act which is missing in the present case. It is further submitted that the applicant-accused had also filed an application against the syndicate leader as well as members of the syndicate in the year 2014 and thereafter in the year 2020 which clearly reveals that the applicant-accused is no longer associated with the said syndicate. Assuming for a moment for the sake of argument that had he been slightly connected with the members of the organized syndicate, in that event, he would not have registered the complaint against the members of the gang and the said fact itself is self- explanatory that the present applicant-accused is not at all associated with the members of the gang.
2.1 In such circumstances, referred to above, learned advocate Mr. Popat prays that the applicant may be enlarged on bail on any suitable terms and conditions.
3. The learned Public Prosecutor Mr. Mitesh Amin appearing on behalf of the respondent-State has opposed grant of regular bail looking to the nature and gravity of the offence. Learned Public Prosecutor Mr. Amin submits that the present applicant- accused is the real brother of the leader of the Organized Crime Syndicate and the said gang is indulged in doing illegal activities like extortion of money, land grabbing, contract killing and economical offences etc. and they are doing the said illegal activities since long. Number of cases have been registered against the members of the said syndicate. It is further submitted that all the accused persons are in constant touch with each other and the said fact is clearly found out Page 4 of 15 Downloaded on : Mon Dec 11 20:45:24 IST 2023 NEUTRAL CITATION R/CR.MA/20757/2022 CAV JUDGMENT DATED: 11/12/2023 undefined from the Call Data Record collected by the Investigating Officer during the course of investigation. Learned Public Prosecutor Mr. Amin has also submitted that during the course of investigation, confessional statement of the gang leader was recorded by the Investigating Officer wherein he has very categorically stated about the individual role played by the individual accused person and they are running the said syndicate since long. It is further submitted that there is a misconception with regard to invocation of the provisions of the GUJCTOC Act in respect of the members of the Organized Crime Syndicate. For the sake of argument, assuming for a moment, that the complaint is registered against ten persons and out of those ten persons, if some of the members are indulged into continuing unlawful activity and they fall under the definition of the continuing unlawful activity and there is no first information report filed against rest of the accused persons after the promulgation of the Act, but during the course of investigation, some incriminating material and specific nexus between the members of the organized crime syndicate is found out, in that event, the provisions of the GUJCTOC Act can also be invoked against those accused persons as an abettor as per the provisions of Section 2(1)(a) of the Act though no FIR has been filed against them after promulgation of the Act.
4. Learned Public Prosecutor Mr. Mitesh Amin has heavily relied upon the decision of Hon'ble Supreme Court in the case of Zakir Abdul Mirajkar v. the State of Maharashtra & Ors, rendered in Criminal Appeal No.1125 of 2022, and submitted Page 5 of 15 Downloaded on : Mon Dec 11 20:45:24 IST 2023 NEUTRAL CITATION R/CR.MA/20757/2022 CAV JUDGMENT DATED: 11/12/2023 undefined that so far as the controversy involved in the present case, the aforesaid judgment will hold the field. Learned Public Prosecutor Mr. Amin refers to the provisions of Section 2(1)(a) of the GUJCTOC Act and submits that so far as the act of 'abet' is concerned, any facilitation of commission of organized crime would amount to abetting the offence of organized crime. Learned Public Prosecutor further submits that one may be a principal offender and remaining persons of the syndicate would be the members of the syndicate but if some offence is committed by any accused person and someone has merely conspired and has committed some act of a nature of conspiracy then that section will be attracted. Learned Public Prosecutor Mr. Amin further submits that thereafter the gravity of the offence also need to be seen while dealing with the application of bail. Learned Public Prosecutor Mr. Amin further submits that when the Court examines the term 'continuing unlawful activity', there has to be more than one offence where the cognizance has been taken. Mr. Amin further submits that say for example if there are 10 members in an organized crime syndicate and one is the leader of the syndicate and others are the members then it is not prerequisite that against all the 10 members there has to be more than one offence requires to be registered and wherein cognizance is being taken by the competent Court. Learned Public Prosecutor Mr. Amin has, at this juncture, relied upon the observations made by the Hon'ble Apex Court in para 77 and 78 in the case of Zakir Abdul Mirajkar (supra) and submitted that in the aforesaid case, it has been specifically observed by the Hon'ble Supreme Court that, 'it is settled law Page 6 of 15 Downloaded on : Mon Dec 11 20:45:24 IST 2023 NEUTRAL CITATION R/CR.MA/20757/2022 CAV JUDGMENT DATED: 11/12/2023 undefined that more than one charge sheet is required to be filed in respect of the organized crime syndicate and not in respect of each person who is alleged to be a member of such a syndicate'.
5. Therefore, as per the law laid down by the Hon'ble Apex Court in the above referred decision, simply on the basis of non-registration of the FIR or less number of cases registered against some of the members of the syndicate after or before the promulgation of the GUJCTOC Act, those persons cannot be absolved from the clutches of the provisions of the said Act. Therefore, considering the above stated factual aspects, this is a fit case wherein discretionary power of this Court is not required to be exercised in favour of the applicant-accused.
6. I have heard the learned advocates appearing on behalf of the respective parties and perused the papers of the investigation and considered the allegations levelled against the applicant and the role played by the applicant. It is found out from the record that at the time of invoking provisions of GUJCTOC against the applicant-accused, the Investigating Officer has put much emphasis upon seven offences registered against the applicant-accused.
7. Before adverting to the issue involved in the present case, I would like to refer to and rely upon the following decisions rendered by the Hon'ble Apex Court. In the case of State of Gujarat v. Sandip Omprakash Gupta rendered in Criminal Appeal No.2291 of 2022, in para 51(f) & (g), the Hon'ble Apex Court has observed as under:
Page 7 of 15 Downloaded on : Mon Dec 11 20:45:24 IST 2023NEUTRAL CITATION R/CR.MA/20757/2022 CAV JUDGMENT DATED: 11/12/2023 undefined "(f) There would have to be some act or omission which amounts to organised crime after the Act came into force, in respect of which the accused is sought to be tried for the first time, in the Special Court (i.e. has not been or is not being tried elsewhere).
(g) However, we need to clarify something important. Shiva alias Shivaji Ramaji Sonawane (supra) dealt with the situation, where a person commits no unlawful activity after the invocation of the MCOCA. In such circumstances, the person cannot be arrested under the said Act on account of the offences committed by him before coming into force of the said Act, even if, he is found guilty of the same. However, if the person continues with the unlawful activities and is arrested, after the promulgation of the said Act, then, such person can be tried for the offence under the said Act. If a person ceases to indulge in any unlawful act after the said Act, then, he is absolved of the prosecution under the said Act. But, if he continues with the unlawful activity, it cannot be said that the State has to wait till, he commits two acts of which cognizance is taken by the Court after coming into force. The same principle would apply, even in the case of the 2015 Act, with which we are concerned."
8. In the case of Mukeshbhai Vallabhbhai Abhangi v. the State of Gujarat, Criminal Appeal No.1391 of 2023, the Hon'ble Apex Court has observed in para nos. 7 and 8 as under:
"7. The learned counsel drew the Court's attention to State of Gujarat v. Sandip Omprakash Gupta, 2022 SCC OnLine SC 1727, dated 15.12.2022, the relevant being at paras 49, 56 and 57, which affirms State of Maharashtra v. Shiva alias Shivaji Ramaji Sonawane, (2015) 14 SCC 272, which stipulates that the offence? of "organised crime" could be said to Page 8 of 15 Downloaded on : Mon Dec 11 20:45:24 IST 2023 NEUTRAL CITATION R/CR.MA/20757/2022 CAV JUDGMENT DATED: 11/12/2023 undefined have been constituted by at least one incident of continuation apart from continuing unlawful activity evidenced by more than one charge-sheets in the preceding ten years.
8. Learned counsel also referred to the decision dated 30.05.2022 passed by this Court in SLP (Crl.) No. 1815 of 2022 titled 'Mohammed Iliyas Mohammed Bilal Kapadiya v. State of Gujarat', since reported as 2022 SCC OnLine SC 713, wherein also Section 2(c) of the GCTOC Act was involved and bail was granted on the ground that "only one charge- sheet was filed in respect of an activity which can be said to have been undertaken by the appellant/applicant as a member of an organised crime syndicate on behalf of such syndicate" as opposed to the requirement of "more than one charge-sheets" under Section 2(c) of the GCTOC Act."
9. In the case of Anilbhai @ Mehtaji Dineshbhai Dangariya v. The State of Gujarat, rendered in Criminal Appeal No.3286 of 2023, the Hon'ble Apex Court has observed in para no. 9 as under:
"9. Having examined the records and on perusing the stand taken by the respondentState in the counter affidavit, we are of the opinion that undisputedly, there is only one case, that is the instant case, where the appellant has been made an accused. No other chargesheet has been filed against the appellant in the preceding ten years alleging offences punishable with more than three years' imprisonment. So, there is no "continuing unlawful activity" qua the appellant for attracting the provisions of the GCTOC Act. The appellant has remained in custody since 29th January, 2021, for two years and nine months and he does not have any other criminal antecedents."Page 9 of 15 Downloaded on : Mon Dec 11 20:45:24 IST 2023
NEUTRAL CITATION R/CR.MA/20757/2022 CAV JUDGMENT DATED: 11/12/2023 undefined
10. Now, I would like to refer to the relevant provisions of the GUJCTOC Act. Sections 2(1)(a) provides as under:
"(a) "abet" with its grammatical variations and cognate expression, includes-
(i) the communication or association with any person with the actual knowledge or having reason to believe that such person is engaged in assisting in any manner an organised crime syndicate;
(ii) the passing on or publication of without any lawful authority, any information likely to assist the organised crime syndicate and the passing on or publication of or distribution of, any document or matter obtained from the organised crime syndicate;
and
(iii)the rendering of any assistance, whether financial or otherwise, to the organised crime syndicate for committing an offence under this Act;"
11. Sections 2(1)(c) provides as under:
"(c) "continuing unlawful activity" means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment for a term of three years or more, undertaken either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a competent court within the preceding period of ten years and that court has taken cognizance of such offence;"
12. Sections 2(1)(e) provides as under:
"organised crime" means any continuing unlawful activity including extortion, land grabbing, contract killing, economic offences, cyber crimes having severe consequences, human trafficking racket for Page 10 of 15 Downloaded on : Mon Dec 11 20:45:24 IST 2023 NEUTRAL CITATION R/CR.MA/20757/2022 CAV JUDGMENT DATED: 11/12/2023 undefined prostitution or ransom by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion or other unlawful means."
13. Section 2(1)(f) provides as under:
"(f) "organised crime syndicate" means a group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulging in activities of organised crime;"
14. Section 3(1)(ii) reads as under;
"In any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extent to imprisonment for life and shall also be liable to fine which shall not be less than rupees five lakhs."
15. From a bare perusal of the aforesaid provisions, it clearly appears that to constitute an offence under the GUJCTOC Act, more than one charge-sheets need to be filed before a competent court within the preceding period of ten years which is a cognizable offence punishable with imprisonment for a term of three years or more, undertaken either singly or jointly as a member of an organized crime syndicate or on behalf of such syndicate and that court has taken cognizance of such offence. From the materials available on record, it appears that out of the seven offences relied upon by the Investigating Agency, only two offences have been registered after the promulgation of the Act in which one is under the provisions of the Motor Vehicles Act. Both these offences appear to be standalone offences and have no connection with the syndicate. Even the applicant-accused as well as his wife Page 11 of 15 Downloaded on : Mon Dec 11 20:45:24 IST 2023 NEUTRAL CITATION R/CR.MA/20757/2022 CAV JUDGMENT DATED: 11/12/2023 undefined had also filed a complaint against the leader as well as the members of the syndicate in the years 2014 and 2020 which clearly goes on to show that the applicant-accused is no longer associated with the said Organized Crime Syndicate otherwise he would not have filed the complaint against his gang members. The true and correct interpretation of the said Act is that to charge the accused under the provisions of the GUJCTOC Act, there has to be fresh activity after the amalgamation of the Act on behalf of the syndicate. Here, in the present case, out of the seven FIRs, five offences were registered before the promulgation of the Act and two offences were registered after the promulgation of the Act and both the offences appear to be standalone offences which have no connection with the organized crime syndicate. Even, one offence is under the provisions of the Motor Vehicles Act.
16. A close analysis of the term "organized crime" would indicate that there has to be an activity prohibited by law for the time being in force which is cognizable offence punishable with imprisonment for three years or more, undertaken as singly or jointly as a member of organized crime syndicate or on behalf of such syndicate in respect of which activity more than one charge-sheets have been filed before a competent court within the preceding period of ten years and court has taken cognizance of such offence. Here in the case on hand, there appears to be two FIRs registered against the applicant-
Page 12 of 15 Downloaded on : Mon Dec 11 20:45:24 IST 2023NEUTRAL CITATION R/CR.MA/20757/2022 CAV JUDGMENT DATED: 11/12/2023 undefined accused after the enactment of the said Act, in which, one of the FIRs was filed under the provisions of the Motor Vehicles Act and both the FIRs pertain to an absolute private dispute. Furthermore, the applicant-accused is in jail almost since last more than three years and recently the Hon'ble Apex Court has considered the bail application of the accused keeping in mind the period of incarceration of two years already undergone by the accused. Thus, I am of the view that the present bail application of the applicant deserves consideration.
17. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra v. Central Bureau of Investigation, reported in [2012]1 SCC 40.
18. In the facts and circumstances of the case and considering the nature of the allegations made against the applicant in the FIR, without discussing the evidence in detail, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.
19. Hence, the present application is allowed and the applicant is ordered to be released on regular bail in connection with the FIR being C.R. No.11208044202185 of 2020 registered with the Pradhyuman Nagar Police Station, Rajkot, on executing a personal bond of Rs.15,000/- (Rupees Fifteen Thousand only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions Page 13 of 15 Downloaded on : Mon Dec 11 20:45:24 IST 2023 NEUTRAL CITATION R/CR.MA/20757/2022 CAV JUDGMENT DATED: 11/12/2023 undefined that he shall;
[a] not take undue advantage of liberty or misuse liberty;
[b] not act in a manner injuries to the interest of the prosecution;
[c] surrender passport, if any, to the lower court within
a week;
[d] not leave the State of Gujarat without prior
permission of the Sessions Judge concerned;
[e] mark presence before the concerned Police Station on alternate Monday of every English calendar month for a period of six months between 11:00 a.m. and 2:00 p.m.;
[f] furnish the present address of residence to the
Investigating Officer and also to the Court at the
time of execution of the bond and shall not
change the residence without prior
permission of this Court;
20. The authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter.
21. Bail bond to be executed before the lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law.
22. At the trial, the trial Court shall not be influenced by the observations of preliminary nature qua the evidence at this Page 14 of 15 Downloaded on : Mon Dec 11 20:45:24 IST 2023 NEUTRAL CITATION R/CR.MA/20757/2022 CAV JUDGMENT DATED: 11/12/2023 undefined stage made by this Court while enlarging the applicant on bail. Rule is made absolute to the aforesaid extent. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(DIVYESH A. JOSHI,J) VAHID Page 15 of 15 Downloaded on : Mon Dec 11 20:45:24 IST 2023