Gujarat High Court
Mustufa Akbarbhai @ Hakubhai Khiyani vs State Of Gujarat on 11 December, 2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - AFTER
CHARGESHEET) NO. 7832 of 2023
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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MUSTUFA AKBARBHAI @ HAKUBHAI KHIYANI
Versus
STATE OF GUJARAT
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Appearance:
MR HARSHIT S TOLIA(2708) 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
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2020 registered with the Pradyuman 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) and 3(4) of The Gujarat Control of Terrorism and
Organized Crime Act, 2015 (for short "GUJCTOC Act")
2. Learned advocate Mr. H.S. Tolia 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 04.12.2020
and since then he is in jail. It is alleged in the first information
report that the so called incident has occurred during the
period between 01.01.2011 and 01.12.2020. 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. Tolia 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.1 in the FIR. As per the case of the prosecution, there are
total six cases registered against the applicant-accused, out of
which, in two cases mentioned at Serial Nos.2 and 4 of the
chart incorporated in the memo of the petition, the first
information report has been quashed by a Coordinate Bench of
this Court on the basis of the settlement arrived at between
the applicant-accused and the complainant and in the case at
Serial No.3, the applicant-accused has been acquitted by the
concerned trial court and at this juncture, only three cases are
pending before the Competent Court for adjudication. Learned
advocate Mr. Tolia has also submitted that the GUJCTOC came
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to be enacted on 01.12.2019 and, thereafter, three offences
have been registered against the applicant-accused and out of
those cases, in one case, the matter is settled between the
parties and in two cases are pending. Learned advocate Mr.
Tolia has also submitted that if the Hon'ble Court would make
cursory glance upon the chart, then it would be found out that
only the incidents of personal disputes have been narrated in
those complaints and, therefore, on the strength of the above
stated material, it can safely be said that the applicant-
accused is not the member of the Organized Crime Syndicate.
Learned advocate Mr. Tolia has further submitted that
the definition of 'Continuing Unlawful Activity' means an
activity prohibited by law for the time being in force which is a
cognizable offence. The Investigating Officer has shown three
offences registered against the applicant-accused after the
promulgation of the Act and out of these three offences, one
first information has already been quashed by the Coordinate
Bench of this Court and in another offence, the maximum
punishment prescribed under the law is two years and in the
third offence, there is a specific bar of Section 195 of the
Cr.P.C. and in view of that, the ingredients of the provisions of
'Continuing Unlawful Activity' mentioned in the statute cannot
be fulfilled and, therefore, the applicant-accused may be
enlarged on bail by imposing suitable terms and conditions.
Learned advocate Mr. Tolia has also submitted that the
offences upon which reliance is being place, the applicant-
accused has already been enlarged on bail at the relevant
point of time, and once again by putting emphasis upon the
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said FIRs, the applicant-accused has been arrested and,
therefore, it can safely be said that the case of the applicant
would squarely fall under the category of double jeopardy.
Learned advocate Mr. Tolia has read the provisions of the Act
and submitted that considering the above stated factual
aspect, by no stretch of imagination, it can be said that
involvement of the present applicant-accused is found out from
the police papers and, therefore, he may be enlarged on bail.
The applicant-accused was arrested on 04.12.2020 and since
then he is in judicial custody. It is further submitted that the
applicant-accused has already undergone the period of
incarceration for almost three years and yet the trial has not
commenced and looking to the number of witnesses as
mentioned in the charge-sheet papers, the trial may take
considerable long period of time to conclude. The applicant-
accused is not the gang leader of the syndicate. Recently, the
Hon'ble Apex Court has considered the bail application of the
accused solely on the ground of period of incarceration of two
years that the accused has already undergone. In support of
his submissions, learned advocate Mr. Tolia has relied upon the
following decisions;
i) In the case of Abhishek vs. State of Maharashtra & Ors.,
reported in (2022) 8 SCC282;
ii) In the case of State of Maharasthra vs. Rahul
Ramchandra Taru, Criminal Misc. Application No.239 of 2011;
iii) In the case of Maharashtra vs. vs. Jagan Gagansingh
Nepali @ Jagya & Anr., Criminal Appeal No.20 of 2011;
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3. In such circumstances, referred to above, learned
advocate Mr. Tolia prays that the applicant may be enlarged
on bail on any suitable terms and conditions.
4. The learned Public Prosecutor Mr. Mitesh Amin assisted
by learned APP Mr. Manan Mehta 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
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
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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 not a
single 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 showing
the 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 and despite the said fact no FIR has been filed
against them after promulgation of the Act.
5. 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
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
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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
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'.
6. 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
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is a fit case wherein discretionary power of this Court is not
required to be exercised in favour of the applicant-accused.
7. 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 six offences registered
against the applicant-accused.
8. 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:
"(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
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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."
9. 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
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
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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."
10. 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."
11. 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
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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;"
12. 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;"
13. 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
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."
14. 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
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activities of organised crime;"
15. 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."
16. Considering the ratio laid down by the Hon'ble Supreme
Court in the aforesaid decisions and considering the aforesaid
provisions of GUJCTOC Act as well as period of incarceration
undergone by the applicant accused, I am inclined to consider
the bail application of the applicant accused without discussing
anything on merits and demerits of the matter.
17. 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 six offences relied upon the
Investigating Agency, three offence were registered before the
promulgation of the Act and three offences have been
registered after the promulgation of the Act, in which, in one of
the offences mentioned at Serial No.4 of the chart incorporated
in the memo of the petition, the FIR has already been quashed
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by the Coordinate Bench of this Court whereas in the second
offence at Serial No.5, the maximum punishment is two years
imprisonment and in the third offence, in view of bar of
Section 195 of the Cr.P.C., the police authority are not
empowered to take the cognizance even though the
cognizance has been taken.
18. 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 three FIRs registered against the
applicant-accused after the enactment of the said Act, in
which, one of the FIRs has already been quashed by the
Corodinate Bench of this Court and in the second FIR, the
maximum punishment is two years imprisonment and in the
third FIR, there is a bar of Section 195 of the Cr.P.C. upon the
police officer to take the cognizance though the cognizance
has been taken by the police authority which do not constitute
an offence under the provisios of the GUJCTOC Act.
Furthermore, the applicant-accused is in jail almost since last
more than three years and recently in the Hon'ble Apex Court
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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.
19. 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.
20. 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.
21. 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 Pradyuman 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
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;
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[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;
22. 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.
23. 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.
24. At the trial, the trial Court shall not be influenced by the
observations of preliminary nature qua the evidence at this
stage made by this Court while enlarging the applicant on bail.
Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(DIVYESH A. JOSHI,J)
VAHID
