Do the police have the right to arrest an accused twice in the same case — first under the Indian Penal Code and then by invoking the stringent Maharashtra Control of Organised Crime Act (MCOCA)?
The question was raised by Vijay Ahir, brother of gangster-turned-politician Arun Gawli, in a petition before the Bombay High Court challenging his arrest for the second time under MCOCA.
On March 26, Ahir was arrested in an extortion case filed by a city builder.
He was released on bail by the metropolitan magistrate on April 17 and released from custody.
The police then arrested Gawli in the same extortion case and later invoked MCOCA, which does not have bail provisions.
Crime Branch officers again arrested Ahir on April 29. They stated that he would now be tried under MCOCA.
Ahir’s petition states that the bail granted under sections of the Criminal Procedure Code should have continued until the said bail was cancelled by following procedure of law.
“Can the police arrest an accused granted bail without any warrant or applying for cancellation of bail? There is no proposition of law that any accused can be straight away taken into custody immediately upon registration of offence under MCOCA,” states Ahir’s petition.
Besides, once bail is granted it can be cancelled only after it is shown that the person has misused the concessions of bail by subverting the course of justice, the petition adds.
“Bail once granted cannot be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive for a fair trial,” the petition further adds.
Currently, both Ahir and Gawli are in judicial custody. The petition will come up for hearing next week.