Forum Shopping: Supreme Court Sets Aside Bail Granted To Accused Who Challenged Vires Of Provisions Invoked

While deprecating an act of Forum Shopping by the accused, a Bench of the Supreme Court consisting of Justice MR Shah and Justice Sanjiv Khanna has ruled that setting aside the wrong order releasing the accused on bail and cancellation of bail of the accused for misuse of liberty stand on different footing.

"It is required to be noted that as per the law laid down by this 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. 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," the Bench observed.

The Court noted above while rejecting a submission by the Counsel of the accused that he did not misuse the liberty granted by a Division Bench of the High Court by way of interim bail order in 2019.

The Appellant challenged an interim order issued by a Division Bench of the Bombay High Court granting interim bail to the Respondent who was arrested under the Maharashtra Control of Organised Crime Act (MCOCA) by the Bombay High Court.

Advocate Sachin Patil appeared for the Appellant while Senior Advocate Siddharth Dave represented the accused.

It was the case of the Appellant that the accused was booked under various sections of IPC related to extortion and MACOCA for funding members of the organized gang in 2017. He filed a bail application before the Single Judge after bail application was rejected by the Special Court. He withdrew the bail application when the Single Judge was not inclined to entertain it. Later, he challenged vires of the couple of provisions of MACOCA before the Division Bench.

It was further stated that the Division Bench had gone into the merits of the case and held that invocation of MACOCA upon the accused was bad in law. Then an interim order was passed granting bail to the accused.

After hearing the parties, the Supreme Court noted that the High Court ought to have taken note of the gravity of the offence while granting bail.

"It is required to be 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. After the investigation it has been found that the respondent – accused is running the Matka business; is providing funds to the Chhota Shakil and his gangs; that the accused is arranging funds for the expenses of purchasing weapons, information and he is active member of organized crime syndicate," the Bench observed.

The Bench further found that the High Court virtually acquitted the accused by appreciating evidence for granting sanction to invoke MACOCA.

"The High Court has observed that the sanction to invoke the provisions of the MCOCA is bad in law as there is no evidence on record. Therefore, even the High Court has not at all considered the allegations with respect to other offences under the IPC. Even such an observation at the interim relief stage on the sanction to prosecute/invoke the provisions of MCOCA was not warranted. Virtually the High Court has 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 Bench noted.

The Bench also deprecated the act of forum shopping and noted that the accused is not entitled to be released on bail on that ground also.

"It is required to be noted that the present is a glaring example of forum shopping by the accused which cannot be approved at all. The facts speak for itself," the Bench asserted.

It further stated, "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 Bench observed that the accused first approached the Single Judge and when he did not get success, filed a petition before the Division Bench challenging vires of the law and sought bail.

The Bench rejected the argument that the accused has been on bail for long and had not misused his liberty by stating that, "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".

The Bench set aside the order of the High Court and asked Respondent to surrender to face trial.

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