Balasaheb Barku Kolhe vs Commissioner Of Police Nashik ...
2021 Latest Caselaw 10906 Bom

                                                  CRIWP2431-2021.DOC
                                                                     Santosh

       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CRIMINAL APPELLATE JURISDICTION


                     WRIT PETITION NO. 2431 OF 2021

     Balasaheb Barku Kolhe
     Age : 54 years, Occu. Businessman
     Address - Rajbangala Colony, Chavan
     Colony, Pumping Station, Gangapur
     Road, Nashik
     (Presently lodged in Central Jail, Nashik)           ...Petitioner

                     Versus
1. Commissioner of Police
   Nashik City, Nashik
2. Assistant Commissioner of Police
   Nashik City, Nashik
3. Police Inspector
   Gangapur Road Police Station,
   Gangapur Road, Nashik.
4. State of Maharashtra
   (to be served through the Offce of
   Learned Public Prosecutor, High Court,
   Mumbai)                                           ...Respondents

                             WITH
              INTERIM APPLICATION NO. 1894 OF 2021

     Vishal Ramesh Mandlik                             ...Intervenor/
                                                            Applicant
     In the matter between
     Balasaheb Barku Kolhe                                ...Petitioner
                      Versus
     Commissioner of Police, Nashik                    ...Respondent


Mr. Sandeep Pasbola, i/b Mr. Pratik R. Kalantri, for the
      Petitioner.
Mr. J. P. Yagnik, APP for the State/Respondent.
Mr. Akshay Bankapur, for the Intervenor/Applicant.



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                                                       CRIWP2431-2021.DOC

                                        CORAM: S. S. SHINDE &
                                               N. J. JAMADAR, JJ.

RESERVED ON: 3rd AUGUST, 2021.

PRONOUNCED ON: 12th AUGUST, 2021.

JUDGMENT:- PER : N. J. JAMADAR, J.

1. Rule. Rule made returnable forthwith and, with the

consent of the Counsels for the parties, heard fnally.

2. This petition under Article 226 of the Constitution of India

takes exception to an order dated 6th May, 2021, passed by the

Commissioner of Police, Nashik City, whereby approval under

Section 23(1)(a) of the Maharashtra Control of Organized Crime

Act, 1999 ("the MCOC Act") has been granted to invoke the

provisions of Sections 3(1)(i),(ii), 3(2) and 3(4) of the MCOC Act

to CR No.37 of 2021, registered with Gangapur Police Station,

Nashik, for the offences punishable under Section 302, 201,

120-B, 115 read with 34 of the Indian Penal Code, 1860 ("the

Penal Code") and Section 4 read with 25 of the Indian Arms Act,

1959, against the petitioner and co-accused.

3. The petition arises in the backdrop of the following facts:

(a) Vishal Mandlik - the frst informant, lodged FIR with

the allegations that on 17th February, 2021, at about 5.30 pm.

while his father Ramesh (the deceased) was working in their

feld situated at Survey No.69/1 at Gangapur road, he was

CRIWP2431-2021.DOC

stabbed in the neck. The deceased was shifted to Civil Hospital.

However, he was declared dead. The frst informant alleged

that his father was done to death by Sachin Mandlik (A1) and

his associates, including the petitioner, in pursuance of a

criminal conspiracy as there was a dispute between the

deceased and Sachin Mandlik over an immovable property. On

the very day of occurrence, Sachin Mandlik (A1) had threatened

the deceased out of his life when the deceased and the accused

had attended the Court in connection with a criminal case,

which was fnally heard on that day.

(b) The petitioner herein was named as the person

through whom Sachin Mandlik and his associates were exerting

pressure on the deceased to enter into a settlement and

withdraw the cases instituted against Sachin Mandlik and

others. The petitioner came to be arrested on 18 th February,

2021.

(c) Investigation commenced. A proposal came to be

submitted to the Commissioner of Police, the competent

authority under Section 23(1)(a) of the MCOC Act, by the

Investigating Offcer to invoke the provisions of MCOC Act as the

investigation revealed that there was an organized crime

syndicate headed by Sachin Mandlik (A1), and Balasaheb Kolhe

CRIWP2431-2021.DOC

- the petitioner, Abasaheb Paraji Bhandage (A7) and Rammi

Rajput, the absconding accused, were the kingpins and mentors

of the said organized crime syndicate. The said crime syndicate

had indulged in heinous crimes such as murder, extortion,

forgery, cheating, land grabbing etc. by means of violence,

intimidation and coercion to gain pecuniary advantage.

(d) The competent authority was persuaded to accord

the approval under Section 23(1)(a) of the MCOC Act as more

than two charge-sheets were submitted in respect of the

unlawful activities of the organized crime syndicate, for the

offences punishable with imprisonment for three years or more

in the preceding ten years. It was noted that the absconding

accused Rammi Rajput was the kingpin of the land grabbing

activities in the city and he used fnancial power through

various conduits including the petitioner Balasaheb to grab the

lands which were entangled in litigation. After adverting to the

modus operendi of the syndicate and the continuing unlawful

activity, the competent authority passed the impugned approval

order dated 6th May, 2021.

(e) The petitioner has assailed the invocation of the

provisions of MCOC Act on the ground that, on the one hand,

there was no material to connect the petitioner with the alleged

CRIWP2431-2021.DOC

organized crime syndicate, and, on the other hand, the

impugned order suffers from manifest non-application of mind.

The petitioner has not been arrayed as an accused in the two

charge-sheets, bearing CR No.151 of 2013, registered at

Gangapur Police Station, and CR No.176 of 2018, registered at

Vani Police Station, referred to and relied upon by the competent

authority. In any event, those offences are of individualistic

nature and there is no nexus of the petitioner with the accused

therein or the alleged organized crime syndicate.

(f) An affdavit-in-reply is fled. The respondents have

resisted the challenge to the invocation of the MCOC Act by

banking upon the material which indicates that the petitioner

had fnancial transactions with the co-accused and also had

communication with the kingpin Rammi Rajput, even on the

day of occurrence. According to the respondent, the correctness

and legality of the approval order cannot be tested at this stage

and in this proceeding. Once the competent authority grants

sanction under Section 23(2) of the MCOC Act, for taking

cognizance of the offences punishable under the MCOC Act, the

question of legality and validity can be validly inquired into at

the stage of trial.

CRIWP2431-2021.DOC

4. The frst informant Vishal Mandlik has fled intervention

application seeking impleadment, and rejection of the petition.

5. We have heard Mr. Pasbola, the learned Counsel for the

petitioner, Mr. Yagnik, the learned APP for the State and Mr.

Bankapur, for the intervenor. With the assistance of the learned

Counsels for the parties, we have perused the material on

record including the documents tendered by the investigating

agency alongwith affdavit-in-reply.

6. Mr. Pasbola, the learned Counsel for the petitioner,

submitted that the petitioner had no role in the alleged property

dispute, which the deceased had with accused Sachin Mandlik

and his relatives/associates. An earnest endeavour was made

to draw home the point that the dispute between the petitioner

and the deceased in respect of the agricultural land bearing

Survey no.32/2 located at Anandballi, Nashik, was resolved way

back in the year 2011. Though the deceased had instituted a

suit bearing Civil Suit No.467/2019, to which the petitioner was

impleaded as defendant no.4, the principal dispute was with

defendant no.5. Thus, there was no subsisting dispute between

the petitioner and the deceased. In this context, the stray

allegation in the FIR that Sachin Mandlik and his associates

were administering threats to the deceased through the

CRIWP2431-2021.DOC

petitioner is by no stretch of imagination suffcient to establish

the nexus between the petitioner and alleged organized crime

syndicate, urged Mr. Pasbola. It was further submitted that the

allegations against the petitioner that there were fnancial

transactions with the co-accused and the petitioner

communicated with the alleged kingpin Rammi Rajput are also

ex facie untenable.

7. Per contra, Mr. Yagnik, the learned APP for the State

stoutly submitted that the endeavour of the petitioner to

question the legality and validity of approval under Section 23(1)

(a) of the MCOC Act is simply premature. If an accused desires

to challenge the legality and validity of the approval and

sanction under Section 23 of the Act, he has to assail the same

at the stage of trial so that the prosecution gets an opportunity

to lead evidence in justifcation thereof. Mr. Yagnik further

submitted that the fact that the petitioner is not named as an

accused in the crime in which charge-sheets have been lodged

in respect of continuing unlawful activity, is of no consequence.

It is not the requirement of law that two charge-sheets should

have been lodged against each and every member of the

organized crime syndicate. If the material on record, prima

facie, indicates that the accused is a member of such syndicate,

CRIWP2431-2021.DOC

no further inquiry is warranted at this stage, and the question

as to whether the accused has committed the offences

punishable under MCOC Act is then a matter for trial.

8. In order to lend support to the submission that the

question of legality and validity of the approval and sanction

under Section 23 of the MCOC Act can properly be decided at

the stage of trial, Mr. Yagnik placed a strong reliance on the

judgments of this Court in the cases of Anil Sadashiv

Nanduskar vs. State of Maharashtra1 and Farman Imran Shah

@ Karu vs. State of Mahrashtra2.

9. In the case of Anil Nanduskar (supra), a Division Bench of

this Court after adverting to the previous pronouncements

including the judgment of the Supreme Court in the case of

State of Bihar vs. P. P. Sharma3 enunciated the legal position as

regards the material by which the validity of sanction can be

sustained and the stage of consideration of the challenge to

legality and validity of the sanction in the following words:

"13. The settled law by a catena of decisions of the Apex Court is to the effect that it is desirable that every order whether the approval or sanction it should speak for itself, i.e. ex-facie it should disclose consideration of the materials placed before it and application of mind thereto. However, failure to reproduce or refer those recitals in the resolution or order itself would not render the order of approval or

1 2008(3) Mh.L.J.(Cri.) 650.

2         2014 All MR (Cri.) 1571.
3         1992 (Suppl) SCC 222.




                                                         CRIWP2431-2021.DOC

sanction to be invalid unless the prosecution fails to establish by leading evidence that all the materials necessary for the grant of approval or sanction were placed before the concerned authority for due application of mind by such authority before the grant of approval and or sanction. It apparently discloses that question of validity of approval or sanction cannot be decided unless the prosecution is afforded opportunity to lead evidence in that regard. Undoubtedly, an accused desiring to raise objection regarding the defects in such approval or sanction, or grant, he can raise such objection; however, for conclusive decision on the said point the accused has to wait till the trial is complete and on that ground he cannot insist for discharge unless the objection relates to inherent lack of jurisdiction to the concerned authority to grant sanction or approval and such issue can be decided on undisputed facts. The law being well settled to the effect that the prosecution in a case where sanction or the approval order does not ex-facie show consideration of all the materials and/or application of mind, is entitled to establish the same by leading necessary evidence regarding production of materials before the concerned authority, the question of discharge of accused merely on the basis of such objection being raised cannot arise. The decision on the point of defect, if any, in the order of approval or sanction will have to be at the conclusion of the trial.

24. The contention that the order of approval or order of sanction should disclose consideration of material qua each of the accused sought to be prosecuted is devoid of substance. That is not the import of section 23 of MCOC Act. Section 23(1)(a) as well as Section 23(2) with reference to approval and sanction speaks of commission of offence and cognizance of the offence. In fact the law on this aspect is also well settled and reiterated by the Apex Court in Dilawar Singh's case (AIR 2006 SC 389) (supra) itself. It was held therein that, court takes cognizance of offence and not of an offender when a Magistrate takes cognizance of an offence, under Section 190 Cr.P.C. Undoubtedly, it was also held that it was necessary for the Sanctioning Authority to take note of the persons against whom the sanction is sought to be granted. However, those were the requirement under Section 19 of the Prevention of Corruption Act. The said section specifcally requires sanction with reference to a particular person. That is not the case under Section 23 either in relation to the approval or in relation to the sanction. As already seen above section 23(1)(a) of MCOC Act speaks of approval for recording of information about commission of offence of organized crime under MCOC Act, whereas sanction is for initiating proceeding for the offence under MCOC Act. The sanction order or the approval order on the face of it need not speak of the individual role of each of the accused. Being so, contention that the order of approval or

CRIWP2431-2021.DOC sanction should reveal consideration of the overt acts or otherwise of each of the accused while granting approval or sanction is totally devoid of substance. Of course, the involvement in organized crime of each of the persons sought to be prosecuted should necessarily be considered by the concerned authority before the grant of approval or sanction, but need not be specifcally stated in the order and the consideration thereof can be established in the course of trial."

10. The aforesaid pronouncement, was followed by this Court

in the case of Sachin Bansilal Ghaiwal vs. State of Maharashtra4

and Farman Shah @ Karu (supra). This Court has consistently

held that before the question of validity of approval or sanction

is conclusively decided, the prosecution must be afforded

opportunity to lead evidence. The validity of the sanction can be

sustained from the sanction order itself where it discloses

consideration of the relevant material. In the absence thereof,

the prosecution may lead evidence aliunde to demonstrate that

the relevant material was placed before the competent authority

and the sanction came to be granted upon due application of

mind. It is a different matter where the objection relates to

inherent lack of jurisdiction of the authority which has

professed to grant the sanction or the facts are so glaring that

the unsustainability of the approval or sanction is manifest and

can be decided on the strength of the undisputed facts.

4         2014 Cri. L.J. 4217.




                                                  CRIWP2431-2021.DOC

11. On the aforesaid touchstone, reverting to the facts of the

case, upon perusal of the impugned order it becomes explicitly

clear that the competent authority had considered the relevant

material and even ascribed the specifc role of the petitioner

being one of the kingpins and mentors of the organized crime

syndicate, which indulges in the continuing unlawful activity in

the nature of the land grabbing by resorting to violence,

intimidation and coercion. It was further noted that the

petitioner is a conduit for unleashing fnancial prowess.

12. Mr. Pasbola, the learned Counsel for the petitioner

canvassed a submission that even if the case of the frst

informant is taken at its face value, at the highest, the petitioner

can at best be said to have played the role of a mediator. There

is no material to support the allegations of force having been

exerted upon the deceased to settle the dispute and withdraw

the cases, urged Mr. Pasbola.

13. It is true that the dispute which the deceased had with the

petitioner in respect of Survey no.32/2 was resolved on the

basis of the Consent Terms as evidenced by the order passed in

Special Civil Suit No.190 of 2008, on 18 th April, 2011. However,

the further submission that there was no subsisting dispute

seems to be belied by the copies of the pleadings in Special Civil

CRIWP2431-2021.DOC

Suit No.467 of 2019. From the perusal of the plaint therein,

especially prayer clause (b), it becomes evident that the

deceased had sought a declaration that the Sale Deed executed

by the petitioner herein in favour of Madhur Realtors, defendant

no.5 therein, on 24th July, 2018, was invalid, sham and not

binding on the rights of the deceased and the co-plaintiff Bhima

Mandlik.

14. Mr. Pasbola would further urge that the existence of the

civil dispute, even if taken at par, would not establish the nexus

of the petitioner with the alleged organized crime syndicate. The

material sought to be relied upon by the prosecution in the

nature of the fnancial transactions which the petitioner had

with the co-accused and the telephonic communication which

the petitioner had with absconding accused Rammi Rajput were

sought to be explained on the premise that fnancial

transactions were since the year 2008 and the telephonic

conversation with the co-accused Rammi Rajput was after the

occurrence and, therefore, no element of conspiracy can be

pressed into service.

15. We are not persuaded to agree with these submissions.

The copies of the statements of account annexed to the affdavit-

in-reply reveal that the petitioner had high value fnancial

CRIWP2431-2021.DOC

transactions with the co-accused as late as in the month of

May-2019. The telephonic conversation with the alleged kingpin

Rammi Rajput on the very day of occurrence, even if after the

occurrence, cannot be brushed aside as a mere coincidence.

16. At this juncture, the aforesaid material is required to be

considered in the backdrop of the role attributed to the

petitioner. It is alleged that the petitioner acted as a conduit for

fnancial transactions in the pursuit of the continuing unlawful

activity. It is pertinent to note that under Section 2(a) of the

MCOC Act, the term "abet" 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 organized crime syndicate;

(ii) the passing on or publication of, without any lawful

authority, any information likely to assist the

organized crime syndicate and the passing on or

publication of or distribution of any document or

matter obtained from the organized crime syndicate;

and

(iii) the rendering of any assistance, whether fnancial or

otherwise, to the organized crime syndicate.

CRIWP2431-2021.DOC

17. The aforesaid defnition, expands the meaning of the term

'abetment' as defned under Section 107 of the Penal Code.

Rendering of any assistance whether fnancial or otherwise

squarely falls within the dragnet of the abetment envisaged by

Section 2(a).

18. In our view, the material arrayed against the petitioner, at

this stage, prima facie appears adequate to establish the nexus

of the petitioner with the organized crime syndicate. In the light

of the situation which thus obtains, in the facts of the case at

hand, we are impelled to hold that no case for testing the

legality and validity of the order of approval, within the limited

scope of inquiry permissible at this stage, is made out.

19. A useful reference, in this context, can be made to the

judgment of the Supreme Court in the case of Lt. Col. Prasad

Shirkant Purohit vs. State of Maharashtra5 wherein it was, inter

alia, enunciated that even if one may not have any direct role in

the commission of an organized crime, but when the nexus of

such person with the accused, who is the member of the

organized crime syndicate or such nexus is related to the

offence in the nature of organized crime, is established by

showing his involvement with the accused or the offence in the

5 (2018) 11 SCC 458.

CRIWP2431-2021.DOC

nature of such organized crime, that by itself would attract the

provisions of MCOCA. This position was enunciated after

adverting to a Three Judge Bench decision of the Supreme

Court in the case of Ranjitsingh Brahmajeet Singh Shrama vs.

State of Maharashtra6. The observations in paragraph 37 in the

case of Prasad Purohit (supra) are material and hence extracted

below:

"37. A reading of paragraph 31 in Ranjitsingh Brahmaajee Sharma case (2005)5 SCC 294 shows that in order to invoke MCOCA even if a person may or may not have any direct role to play as regards the commission of an organized crime, if a nexus either with an accused who is a member of an "organized crime syndicate" or with the offence in the nature of an "organized crime" is established that would attract the invocation of Section 3(2) of MCOCA. Therefore, even if one may not have any direct role to play relating to the commission of an "organized crime", but when the nexus of such person with an accused who is a member of the "organized crime syndicate" or such nexus is related to the offence in the nature of 'organized crime' is established by showing his involvement with the accused or the offence in the nature of such "organized crime", that by itself would attract the provisions of MCOCA. The said statement of law by this Court, therefore, makes the position clear as to in what circumstances MCOCA can be applied in respect of a person depending upon his involvement in an organized crime in the manner set out in the said paragraph. In paragraphs 36 and 37, it was made further clear that such an analysis to be made to ascertain the invocation of MCOCA against a person need not necessarily go to the extent for holding a person guilty of such offence and that even a fnding to that extent need not be recorded. But such fndings have to be necessarily recorded for the purpose of arriving at an objective fnding on the basis of materials on record only for the limited purpose of grant of bail and not for any other purpose. Such a requirement is, therefore, imminent under Section 21(4)(b) of MCOCA."

6         (2005) 5 SCC 294.




                                                              CRIWP2431-2021.DOC

20. If the facts of the case at hand are considered in the light

of the aforesaid enunciation of the legal position, an inference

becomes inescapable that, at this stage, no fault can be found

with the invocation and application of the provisions of MCOC

Act qua the petitioner. Resultantly, no inference is warranted in

exercise of extraordinary writ jurisdiction. The petition thus

deserves to be dismissed.

21. Hence, the following order;

: ORDER :

The petition stands dismissed.

Rule stands discharged.

In view of the dismissal of the petition, the IA

No.1894/2021, also stands disposed of.

       [N. J. JAMADAR, J.]                         [S. S. SHINDE, J.]