MHCC020070302020
IN THE COURT OF SESSION FOR GREATER BOMBAY
BAIL APPLICATION No. 865 OF 2020
IN
REMAND APPLICATION NO. 254/2020
IN
CR.NO. 61/2020
(CNR No.-MHCC02-007030-2020)
Mangesh Jaishankar Pandey alias
Vikas Jaiprakash Pandey
Age-24 years,
Indian Inhabitant , Occ N/A, R/o.
Nagappa Driver Chawal,
Shivaji Nagar, Cutting Number 5,
Near Bhagwati Store, Kurar Village,
Malad (East), Mumbai-97
…Applicant
V/s
1.The State of Maharashtra
at the instance of Kurar Police Station
CR No. 61/2020
….Prosecution/
Respondent
Adv. Mr. Vijendrakumar Rai for the accused
SPP Mr. Solkar for the State.
Coram :
C.R.No.

D. S. Deshmukh
Additional Sessions Judge
Gr.Mumbai.
21
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1.

ORAL ORDER
(Dated September 21st 2020)
This is an application for bail under section 439 of Cr.P.C. The
Dindoshi Division has registered offences punishable u/s. 307, 387,
506(2), 120B r/w. 34 of the IPC and sections 3, 25, 27 of Arms Act and
section 37 (1) (A) 135 of Maharashtra Police Act and subsequently it was
registered under sections 3(1)(ii), 3(2),3 (4) of the Maharashtra Control
Organized Crime Act, 1999 against the applicant.
2.

Dindoshi Division filed chargesheet against the applicant
under the provisions of Maharashtra Control Organized Crime Act, 1999.
By filing this application under section 21 (4) of the MCOCA 1999 read
with section 439 (2) of the Cr.P.C. The applicant prayed for bail.
3.

The prosecution has filed reply vide Ex.3 and contested the
application.
4.

Heard learned advocate Mr. Vijendrakumar Rai for the
applicant and learned SPP Mr. Solkar for the State. Learned Adv.Mr.
Vijendrakumar Rai relied on following citations:1) Madhukar S/o. Babu Shinde V.s The State of Maharashtra and another
(Cri. Appeal 297-2017 decided by the HonТble Bombay High Court on
31.07.2018)
2) State of Rajasthan , Jaipur V/s. Balchand @ Baliay (1977 AIR 2447)
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5.

In short, the prosecution’s case is that the complainant Mukesh
Sharma working as a salesman in medical shop. On 01.02.2020, he was in
the shop. At about 01.00 p.m. his colleague went for lunch. One unknown
person height of 5.9 ft wearing blue coloured sleeves shirt and blue
coloured jeans pant covering his face came and pull one country made gun
and fired towards complainant direction, the said fire pass from the
complainant and hit the shop glass, which got broken and complainant got
hurt by piece of that broken glass. It is further case of the prosecution that
complainant after listening the gun fir Pawan and he ran to save their lives
and Sajan ran outside of the shop to save his life. After listening the gun
fire and in the fear all the neighbour and surrounding shops owners closed
their shops. After firing the Gun, the unknown person went ahead from the
complainantТs shop. Thereafter, one envelop was found. In envelope
message of theft has been given and name of gangster Uday Pathak has
been mentioned in the envelope. Therefore, complaint was lodged. On the
basis of complaint , FIR no. 61/2020 u/s. 307, 387, 506(2), 120B r/w. 34
of the IPC and sections 3, 25, 27 of Arms Act and section 37 (1) (A) 135 of
Maharashtra Police Act and section 3(1)(ii), 3(2),3 (4) of the Maharashtra
Control Organized Crime Act, 1999 has been registered. Applicant is
arrested and now he is in JC. Applicant approached this court for bail on
the grounds of innocence and false implication. According to him, entire
statement of informant, he has not described anyway applicant is involved
in the offence. His description is not matching in the FIR. There is no
documentary proof that applicant is not appearing in CCTV footage.
Investigating officer has not served the notice u/s.41A of the Cr.P.C. and
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not followed the procedure laid down by Hon’ble Apex Court in
Arneshkumar V/s. State of Bihar ( Cri.Appeal 1277/2014 in SLP
9127/2013). There is absolutely no evidence against the applicant for
insertion of provisions of MCOC Act. He is permanent resident of Mumbai.
He is earning member of his family. Therefore, he be released on bail.
6.

The prosecution objected the application on the grounds that
the applicant is a main member of Organized Syndicate run by accused
Uday Pathak. On the day of incident applicant was with other member,
who has fired bullet on medical shop, where informant was present.
Offence has been committed for benefit of organized syndicate. Before
incident being a member of Organized crime syndicate criminal conspiracy
has been hatched and applicant is present. Therefore, application be
rejected.
7.

Following points arise for my determination and my findings
to them are as stated below for the following reasons.
Points
Findings
1.Whether the applicant made out Е..No.
primafacie case for bail?
2.Whether the applicant is entitled Е..No.
for bail?
3.What Order?

…As per final order.

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REASONS
As to Point nos.1 and 2
8.

Heard from both the sides. Perused the copy of charge-sheet. I
have gone through the complaint and statement of witnesses. The
allegations against the applicant, he being a member of organized crime
syndicate, he is involved in criminal conspiracy. Before incident one pistol
has been brought for inspection at that time, applicant was there. It
appears from the statement, co-accused Uday Pathak is a head of crime
syndicate and others are members. It appears from the statement,before
incident, one bullet has been fired on the air for inspection of pistol. At
that time also applicant is present. Therefore, the question to be decided in
this application whether the applicant is concerned with a particular
offence which is committed by the other accused can prosecuted for the
offence punishable u/s. 3, (4) of MCOC Act and he is a member of
Organised Syndicate headed by Uday Pathak. Sub section 4 of the Act says
that any person to the member of Organised Crime Syndicate shall be
punishable with imprisonment for a term which may extend to
imprisonment for a term which shall not be less than five years but which
may extend for imprisonment for life and shall also be liable to a fine
subject to minimum fine of Rs.5 lakhs.
9.

It is to be noted that before involving the accused u/s. 3,4 of
the MCOC Act, the prosecution has to brought on record there is continue
unlawful activities at the hands of the applicant/accused, the definition of
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continue unlawful activities is provide in section 2 of the Act. It reads as
under:У Continuing unlawful activityФ means an activity
prohibited by law for the time being in force, which is a
cognizable offence punishable with imprisonment 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
proceeding period of ten years and that Court has taken
cognizance of such offence.Ф
10.

Thus, the activities which is prohibited by law in respect of
cognizable offence punishable with imprisonment of three years or more.
УOrganised crimesФ means any continuing unlawful activities
by an individual and, singly or jointly either as a member of an
organised crime syndicate are on behalf of such syndicate by use of
violence or threat of violence or intimidation or coercion or other
unlawful means with the objective of gaining pecuniary benefits or
gaining undue economic or other advantage for himself or any
person or promoting insurgencyФ.
11.

In the light of the above provision , it is the case of the
prosecution the applicant is continuously involved for doing unlawful
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activities with accused Uday Pathak. The prosecution placed list of cases
registered against the accused Uday Pathak and Babu Chintale in different
police stations. The cases are registered within preceding of 10 years. It
appears from the charge-sheet the competent court has taken cognizance.
Thus, considering these circumstances, the applicant is involved in the
commission of Organised Crime and he is a member of Organised
Syndicate headed by accused Uday Pathak. Therefore, if the applicant is
released on bail, again he join the syndicate and commit organize crime,
therefore, in my view, this is not fit case to release the applicant on bail.
Thus, I answer point nos.1 to 3 accordingly. With this, I pass the following
order.
ORDER
BA No.865/2020 is rejected.

Date.21.09.2020
Date of Dictation
Date of typing
:21.09.2020
:21.09.2020
Date of signature
:
(D.S.Deshmukh)
Additional Sessions Judge
Gr.Mumbai
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УCERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.Ф
24.09.2020
11.00 am
( M.P Tathe)
UPLOAD DATE AND TIME
NAME OF STENOGRAPHER
Name of the Judge (With Court
HHJ Shri. D.S.Deshmukh (C.R.No.21)
room No.)
Date of Pronouncement of
JUDGMENT/ORDER
21.09.2020
JUDGMENT/ORDER signed by
P.O.on
24.09.2020
JUDGMENT/ORDER uploaded on
24.09.2020
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