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Synopsis

The Supreme Court on January 2, 2025, said that when there is an embargo put in by a specific provision under a special enactment in the matter of grant of bail in respect of offences allegedly committed thereunder, the power to grant bail should necessarily be subject to satisfaction of the conditions mentioned in such specific provision.

A bench of Justices C T Ravikumar and Sanjay Karol also emphasised that appreciation of materials on record for the purpose of forming a definite opinion with respect to the question as to whether an accused person had played a role or not in the crime concerned is not permissible while considering an application for grant of bail.

The apex court set aside the Bombay High Court's order of November 6, 2023, granting bail to Rahul Ananda Kamble and Rupesh Ananda Kamble in a case lodged against them under the stringent Maharashtra Control of Organised Crime Act (MCOCA) for their alleged involvement in daylight murder of Rajesh Haridas Kanabar on October 5, 2020, in Pune following a civil dispute.

Jayshree Kanabar, widow of the deceased, challenged the order, contending the High Court's order was an outcome of consideration akin to mini-trial.

Her counsel said though there was an irrecusable duty on the court to consider whether the twin conditions were to be satisfied in terms of Section 21 (4) of MCOCA, the court transgressed into impermissible area, ignoring the fact that it was only considering an application for bail and made appreciation of the materials on record and arrived at findings that respondent Nos 2 and 3 had not played any role in the incident of shooting.

"It is such highly improper and impermissible manner of consideration that culminated in the order of granting bail that it would certainly deprive a fair trial to the prosecution," her counsel said.

The respondents' counsel said they were not accused of commission of offence(s) under MCOCA and those were inserted later, through supplementary report. They were arrested on the date of incident and enlarged on bail only by the impugned order with adequate and sufficient conditions.

Court agreed that the High Court's order did not disclose consideration of specific provisions contained under Section 21(4) of the MCOCA.

The counsel for respondents argued that even in PMLA cases, the top court held that such stringent provisions for the grant of bail would not take away the power of Constitutional Courts to grant bail on grounds of violation of Part-III of the Constitution of India.

"But we may hasten to add that a critical examination of the impugned order would reveal that bail was granted to respondent Nos.2 and 3 in the case on hand not on the ground of violation of Part-III of the Constitution of India and instead, the High Court has considered the sufficiency or otherwise of the evidence against them available on record," the bench said.

The court opined there was substance in the contentions of the appellant that the High Court had transgressed into an impermissible area inasmuch as the question of sufficiency or otherwise and correctness of the prosecution case were considered while passing the impugned order instead of confining the consideration in regard to the question of satisfaction or otherwise of the stringent conditions in the matter of grant of bail where offences under MCOCA were involved.

"There can be no doubt with respect to the position that materials collected during the investigation would not mature into evidence at the stage of consideration of an appeal and as such, the admissibility and evidentiary value are matters to be decided during the trial and are not matters for consideration at the present stage of the proceedings," the bench said.

Taking note of the High Court's observations partaking the character of findings, the bench said, the appellant was purportedly justified in contending that the manner of consideration and the conclusions arrived at in pursuance thereof would cause prejudice to the prosecution during the trial and if they were allowed to remain, it would deprive them of a fair trial.

"The fact is that besides such specific observations in the nature of findings in regard to the roles played (or not played) by accused Nos 1, 2 and 3 and the consequential conclusion that respondent Nos 2 and 3 are entitled to bail, as accused No 3 who played direct role was granted bail there was no consideration in the manner required under law considering the fact that the case on hand carries allegation of commission of offences under MCOCA against respondent Nos 2 and 3," the bench said.

The court, however, clarified it should not be understood to have held that respondent no. 2 and 3 had played a definite role in the commission of the offence involved in the case on hand which resulted in the death of Rajesh Haridas Kanabar.

"Certainly, the question whether his death is homicide and if so, who is or are the culprit(s) are matters to be decided by the trial Court on conclusion of the trial," the bench said.

The court said at any rate, the observations ought not to have been made by the High Court regarding the roles played or not played by the accused nos 1, 2 and 3 in the MCOCA case. It also found the impugned order was also infected with absence of consideration which ought to have been bestowed by the court in the matter of grant of bail taking note of the involvement of allegation of offence(s) under the MCOCA Act.

"It is also a matter of concern that in spite of the fact that the accused No 3 was not a party before the High Court, the High Court made specific finding to the effect that he played a direct role," the bench said.

While setting aside the impugned order, the bench remanded the matter to the High Court for fresh consideration in accordance with law preferably within a period of one month since the crime is of year 2020. The court clarified the accused would remain on bail till disposal of the matter. It directed the parties to appear before the High Court on January 29, 2025.

Case Title: Jayshree Kanabar Vs State of Maharashtra & Ors