B.A. (MCOC) No.761/22
MHCC020161322022
1
Order
IN THE COURT OF SPECIAL JUDGE UNDER MCOC ACT,
FOR GREATER MUMBAI AT MUMBAI
BAIL APPLICATION (MCOC) NO.761 OF 2022
(CNR NO.MHCC02-016132-2022)
IN
(MCOC) REMAND APPLICATION NO.1106 OF 2022
Mohd. Yakub Mohd. Kasim Shaikh
Е Applicant
Aged: about 46 years, Occ.: Self Employed, (Org. Accused No.9)
R/at- Room No.5, B-Sector, V-Line, Near
Gulshane Masjid, Cheeta Camp, Trombay,
Mumbai Ц 400 088.

Versus
The State of Maharashtra,
(At the instance of Trombay police station
vide C.R.No.332/2020.)

Е Prosecution
CORAM : THE ADDL. SESSIONS JUDGE AND
THE SPECIAL JUDGE UNDER
MCOC/NIA/POTA ACT
B.D. SHELKE (C.R. NO.55)
DATE : 13.12.2022.

Learned Advocates:
Mr. Sandesh More a/w. Mr. Siddharth Herode, for applicant.
Mr. Jaysing Desai, SPP for State.
ORDER
This is an application u/S.439 of Cr.P.C. and u/S.21(4)(b) of the
MCOC Act for bail, filed by applicant / accused no.9- Mohd. Yakub
Mohd. Kasim Shaikh. He is arrested in Crime No.332/2020 u/Ss.302,
504, 506, 427, 143, 144, 147, 148, 149 of Indian Penal Code (for short,
СIPCТ); Ss.4/25 of Arms Act; S.142 of Maharashtra Police Act and
u/Ss.3(1)(i), 3(2), 3(4) of the Maharashtra Control of Organized Crime
Act, 1999 (for short, С MCOC Act Т) registered with Trombay police
station. He has been arrested on 14.11.2022. He was remanded to
Police Custody and now he is in Judicial Custody.

B.A. (MCOC) No.761/22
2.

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Order
The prosecution case in brief is that :
(a)
Informant- Hasina Bano Shaikh lodged report alleging
therein that her brother Khuda Baksh has two sons namely- Abdul
Rehman @ Wasim and Abdul Karim @ Dubai Akram. Six months prior
to the incident quarrel took place between Abdul Karim, Abdul Rehman
on one side with accused no.1- Rashid and his friend- Ayyakanu Shaikh,
complaint was lodged in police station regarding said incident. In order
to avoid further dispute Khudabaksh Shaikh with his sons namelyWasim and Akram went to reside at Ulway, Navi Mumbai. Since said
incident the accused no.1 Rashid and his relatives and family members
were unnecessarily having grudge against the informant and were
hurling abuses to them. One Shabbo, the aunt of accused no.1 Rashid
Shaikh runs Grocery Shop in the lane of informant.
(b)
It is further alleged that, on 17.11.2020 at about midnight
accused no.1 Rashid had abused and threatened Abdullah the son of
informant, therefore he had lodged complaint, on which Crime
No.2179/2020 u/S.506, 504 of IPC was registered with Trombay police
station. Police reached to the spot, however till then the accused were
fled away from the spot.
(c)
It is further alleged that, on 17.11.2020 at about 12.30
a.m. midnight Abdul Karim @ Akram was came in B-Sector, Chita
Camp, at that time somebody gave information to him that accused
no.1 had hurled abuses and gave threats to Abdullah the son of
informant. At that time, Fajjo, Shabbo and other relatives of accused
no.1 Rashid Shaikh had quarreled with Abdul Karim Khuda Baksh @
Akram and also tried to caught-hold him but he succeeded in fleeing
away from the said spot.
(d)
It is further alleged that, on 17.11.2020 at about 03.20
a.m., Abdul Rehman @ Wasim, Abdul Karim @ Akram were came in the
B.A. (MCOC) No.761/22
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lane of informant Hasina Bano, and were hurling abuses to Shabbo
going near her Grocery Shop. Arbaaz the son of Shabbo used to sleep in
his Grocery Shop, therefore Wasim and Akram were banging the shutter
of said shop. The informant and her daughter Ruksana were trying to
pacify Wasim and Akram. Meantime, accused no.1- Rashid Rehmat
Shaikh, accused no.2- Mohd. Ali Sayyed @ Sameer, accused no.3Faizulla Inayatulla Shaikh @ Arbaaz, accused no.4- Javed Abdul Karim
Shaikh reached there armed with deadly weapons. Accused no.1Rashid hurled abuses to Wasim and Akram and inflicted blow of sword
on neck of Akram. He also inflicted blow of sword on head of Wasim.
Accused- Salman inflicted blow of iron rod and accused- Sameer
inflicted blow of wooden stick on Abdul Rehman @ Wasim. Other
accused uttered abuses and assaulted the victims- Wasim and Akram by
means of fist and kicks blows. The informant and her daughter were
intervening the said scuffle. At that time, accused also used criminal
force and violence against them. Informant and her daughter went to
their house and closed their door from inside. Some of the assailants
reached to her house, threatened her and were inflicting fist and kick
blows on the door of her house. They also broken the glasses of
windows. Ruksana the daughter of informant recorded said incident in
her mobile phone.
(e)
It is further alleged that, after sometimes police reached at
the spot. Then, informant came out of her house and she found that
near the shop of Barber and Grocery Shop, Abdul Rehman @ Wasim
was lying in the pool of blood. Informant and her daughter with the
help of police shifted him to Lokmanya Tilak Municipal Hospital, Sion,
Mumbai. When Abdul Rehman @ Wasim was under treatment, he
succumbed to injuries. On said report lodged by the informant above
referred crime has been registered against the accused including present
B.A. (MCOC) No.761/22
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accused no.9.
(f)
During investigation, the Investigating Officer transpired
that accused no.1- Rashid is head of organized crime syndicate, various
offences have been registered against him, more than one charge-sheet
in respect of cognizable offences punishable with imprisonment of three
years or more have been filed against him and the Courts have taken
cognizance, in the preceding 10 years. The Investigating Officer also
found that, accused no.1 and his associates formed an organized crime
syndicate and were indulging in continuing unlawful activities singly or
jointly either as members of said organized crime syndicate or on behalf
of such syndicate by use of violence with an object of gaining pecuniary
benefits for undue economic or other advantage for the members of the
said syndicate. Additional Commissioner of Police granted prior
approval u/S.23(1)(a) of MCOC Act. Thereafter, on completion of
investigation sanction was obtained u/S.23(2) of the MCOC Act and
charge-sheet came to be filed.
(g)
As referred above, this accused came to be arrested on
14.11.2022, now he is in judicial custody remand. Therefore, filed this
application for grant of bail.
3.

The prosecution has resisted this application by filing its reply
Ext.2, in which contents of earlier charge-sheet and remand application
and FIR have been reiterated.
4.

Following points arise for my determination and I have recorded
my findings against them for the reasons given there under :
Sr. No.

Points
Findings
1.

Whether the applicant/ accused no.9-
In the Negative.

Mohd. Yakub Mohd. Kasim Shaikh
B.A. (MCOC) No.761/22
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made out case for grant of bail?
2.

What order ?

As per final order.
REASONS
AS TO POINT NOS.1 AND 2:
5.

Ld. Counsel Mr. Sandesh More representing to accused submitted
that, this accused was arrested on 14.11.2022. He was remanded to
PCR till 24.11.2022. Since 24.11.2022, he is MCR. He further submitted
that, this applicant / accused was member of second group of accused.
HonТble High Court granted bail to Shabhana Parveen Inayatullah
Shaikh vide order dated 13.08.2021. Other four accused released on
regular bail. The findings recorded by the HonТble High Court shows
that provisions of MCOC Act not attracts. There is no name of this
accused in the FIR. In supplementary statement dated 06.12.2020 name
of this accused is implicated afterthought. Other accused from second
group of accused have been released on bail. No role attributed to this
accused in assaulting the victim. He is on better footing than other
accused released on bail. There are no criminal antecedents against this
accused. He is ready to obey the conditions. He was not absconding. He
was met with an accident and was under treatment, therefore could not
remain present before the Investigating Agency. He is a Rickshaw Driver
by profession. He will not flee from justice. Thus, as per his submission
this accused is entitled to bail on ground of parity.
6.

The Ld. SPP Mr. Jaysing Desai submitted that, the HonТble High
Court in Para 26, Clause-(vii) clearly observed that, the observations are
made for the limited purpose of determining the justifiablity of
invocation of the provisions contained in MCOC Act against petitioner
(Shabhana Parveen Inayatullah Shaikh) and her entitlement to the relief
B.A. (MCOC) No.761/22
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of pre-arrest bail and they may not be construed as expression of
opinion on the merits of the matter and trial Court shall not be
influenced by any of the observations here-in above while determining
guilt or otherwise of the petitioner and co-accused. It means those
observations are made only in respect of accused no.10. He further
submitted that, the contents of FIR and supplementary statement of the
informant clearly demonstrates that this accused no.9 / applicant was
present at the spot alongwith other accused. He also assaulted victim by
means of fist and blows. He was sharing common intention and
common object with other accused. This fact also clear from the
confessional statement u/S.18 of the co-accused. All accused were
having common object and common intention to commit the murder of
victim. The incident took place at about 03.00 a.m. Presence of this
accused at said spot was not accidental, but he had joined the unlawful
assembly of accused no.1 gang-leader Rashid Shaikh and committed the
serious offence of murder of victim, Abdul Rehman Khudabaksh Shaikh
@ Wasim. He was actively participated in this serious offence. Apart
from this, accused no.9 is having criminal antecedents. The chart of
offences registered against him is given in the reply Ext.2. Offence is of
serious nature. Competent authority gave prior approval u/S.23(1)(a)
of MCOC Act and also granted sanction u/S.23(2) of the MCOC Act.
Thus, as per this submission in view of the bar contained u/S.21(4)(b)
of MCOC Act and considering past criminal record of this accused, he is
not entitled for bail.
7.

I gave thoughtful consideration to the arguments advanced on
behalf of both sides and gone through the documents filed at page 11 to
68 alongwith Index submitted on behalf of accused. These documents
shows that the HonТble High Court granted pre-arrest bail to accused
B.A. (MCOC) No.761/22
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no.10 Shabhana Parveen Inayatullah Shaikh in Writ Petition No.1959 of
2021. However, the HonТble Bombay High Court in its order in Para 26
Clause- (vii) made observations that, the observations are made for the
limited purpose of determining the justifiablity of invocation of the
provisions contained in MCOC Act against petitioner (Shabhana
Parveen Inayatullah Shaikh) and her entitlement to the relief of prearrest bail and they may not be construed as expression of opinion on
the merits of the matter and trial Court shall not be influenced by any of
the observations here-in above while determining guilt or otherwise of
the petitioner and co-accused. Thus, these observations are not much
helpful to this accused. My Ld. Predecessor granted Anticipatory Bail to
accused no.11 Shakib Rehmat Shaikh on the ground of parity in A.B.A.
No.1911 of 2021 vide order dated 20.09.2021. My Ld. Predecessor also
granted bail to accused no.7- Atif Rahim Shaikh @ Atik in Bail
Application filed at Ext.12 vide order dated 16.12.2021 on the ground
of parity based on observations made by the HonТble High Court
referred above. However, in present bail application after going through
the charge-sheet, particularly, the confessional statement of co-accused
namely Ali Ayyakannu Shaikh (accused no.8) it appears that this
accused was also one of the assailant in group headed by accused no.1.
It is pertinent to note that the incident in question took place on
17.11.2020 at about 03.00 a.m. At the relevant time this accused was
not accidentally present there. The inference which can be drawn is that
he was associated with gang-leader accused no.1. He has taken active
participation in committing serious crime of murder of victim Abdul
Rehman @ Wasim. These accused also assaulted Abdul Karim
Khudabaksh Shaikh @ Dubai Akram, the real brother of deceased
Wasim. All accused including this accused formed an unlawful assembly
and then made attack on victim Wasim and committed his murder. As
B.A. (MCOC) No.761/22
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referred above, the confessional statement u/S.18 of the MCOC Act of
co-accused clearly demonstrates active participation of this accused.
Apart from this, the charge-sheet filed against other accused
demonstrates that the competent authority had given prior approval u/
S.23(1)(a) of MCOC Act vide order dated 30.11.2020 for invoking
provisions of MCOC Act against all accused including this accused.
Further, the competent authority granted sanction u/S.23(2) of MCOC
Act vide order dated 09.02.2021. Subsequently, the charge-sheet is filed
against other co-accused of this applicant / accused no.9. This accused
was shown wanted in said charge-sheet. Thus, considering his active
participation in commission of crime which is a serious offence
punishable upto death sentence, he is not entitled for bail. Even,
considering his complicity and association with gang-leader, he is not
entitled to bail on ground of parity.
8.

Apart from above discussion, the reply filed by the prosecution at
Ext.2 demonstrates the chart of offences registered against this accused.
It shows that various offences against property and body have been
registered against this accused. List of 11 offences registered against
him including offence u/Ss.307, 326 of IPC also registered against him.
Thus, the possibility of involving in other offences after release on bail
in this crime by this accused can not be ruled out. Thus, all these
documents shows that this applicant / accused no.9 is having criminal
antecedents. S.21(4)(b) of MCOC Act clearly says that, no bail can be
granted to such accused. Hence, I answer point no.1 in the negative. In
the result, I proceed to pass following order :
ORDER
The Bail Application (MCOC) No.761 of 2022 of applicant Ц
B.A. (MCOC) No.761/22
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Order
Mohd. Yakub Mohd. Kasim Shaikh is rejected and disposed of,
accordingly.

babarao
dnyanoba
shelke
Dated: 13.12.2022.

Dictated on
Typed on
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13.12.2022.
13.12.2022.
13.12.2022.
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Digitally signed
by babarao
dnyanoba
shelke
Date:
2022.12.13
18:00:52 +0530
(B.D. SHELKE)
ADDL. SESSIONS JUDGE
& SPECIAL JUDGE UNDER MCOC ACT
GREATER MUMBAI.

B.A. (MCOC) No.761/22
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Order
У CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDERФ.
UPLOAD DATE
UPLOAD TIME
NAME OF
STENOGRAPHER
13.12.2022
05.55 p.m.

N.S. Bakre
Name of the Judge (With Court Room No. 55) HHJ Shri. B.D. Shelke
Date of pronouncement of
JUDGMENT/ORDER
13.12.2022
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