MHCC020031442024
IN THE COURT OF SPECIAL JUDGE,
CITY CIVIL AND SESSIONS COURT OF GR. BOMBAY
BAIL APPLICATION NO.162 OF 2024
Sanidhya Sambhaji Desai
Е Applicant
/Accused
V/s.
The State of Maharashtra
(Through, Chunabhatti Police Station, Mumbai
Vide C.R. No.544/2023)
… Prosecution.

Appearances:Advocate Mr. Sudeep Pasbola for applicant/accused.
SPP Mr. Vijay Malankar for prosecution.
CORAM : THE SPECIAL JUDGE,
SHRI R.J. KATARIYA (C.R.NO.25).
DATE : 15th APRIL 2024
(DICTATED AND PRONOUNCED IN OPEN COURT)
ORAL ORDER
Read application and say. Heard both sides.
2.

Present application is filed by the applicant/accused no.6
for grant of bail in regard to crime no.544 of 2023, registered at
Chunabhatti Police Station for the offences under Sections 302, 307,
120(B), 201, 212 read with 34 of Indian Penal Code (in short УIPC),
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Sections 3, 25, 27 of Indian Arms Act and Sections 3(1)(i)(ii), 3(2),
3(4) of the Maharashtra Control of Organized Crime Act, 1999 (In short
УMCOCA).
3.

It is the case of the prosecution that on 24.12.2023 at about
3.10 pm, while informant and his friends came to Shri Photo Studio
Azad Galli, Chunabhatti, Mumbai for taking snaps for the banner in
regard to birthday of informantТs friend Sumit Yerunkar, accused
persons due to grudge of previous quarrel, conspired and committed
murder of deceased Sumit Yerunkar and injured other 3 persons by
firing bullets. On the basis of report lodged by the informant, C.R.
No.544 of 2023, came to be registered against the accused persons for
the offences under Sections 302,307,12B of IPC, Sections 3 read with
25 of Indian Arms Act, Section 37(1)(a) read with 135 of Maharashtra
Police Act against the accused persons. During course of investigation,
it revealed that accused persons are members of organized crime
syndicate. On 03.02.2024, prior approval as per section 23(1)(a) of
MCOCA came to be granted by the Additional Commissioner of Police
East Region, Mumbai and provisions of MCOCA came to be invoked.
On 26.12.2023, applicant came to be arrested in the crime. After grant
of sanction dated 20.03.2024, as per Section 23(2) of MCOCA against
the accused persons, chargesheet came to be filed.
4.

Learned advocate for applicant submitted that the applicant
is falsely implicated in the crime. The alleged role of the applicant is
harboring the co-accused. Name of the applicant is not mentioned in the
FIR.

He was not present at the spot. Applicant is a goldsmith by
occupation. Accused used to buy gold from the applicant. There is no
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mens rea on the part of the applicant for commission of the crime. The
name of the applicant is added subsequently. The applicant is the bread
earner of his family. He has no criminal antecedents. Hence, prayed for
grant of bail.
5.

Learned advocate for applicant placed reliance on the
following case laws:(a) Maruti Navnath Sonawane Vs. State of Maharashtra [2022 SCC
OnLine Bom 955], wherein it is held as under:-
У24. Analysis of the aforesaid provisions show that
there should be an agreement between the persons who
are alleged to conspire doing of an illegal act by illegal
means and which by itself may not be illegal; that such
an agreement can be proved either by direct or
circumstantial evidence or by both; hence the
circumstances proved before, during and after the
occurrence need to be considered to decide about the
complicity of the accused, needless to state that if the
circumstances prove the innocence of the accused then
it cannot be held that the prosecution is correct in
applying the provisions of the MCOC Act to the
accused, that even if it is proven that certain acts have
been permitted it needs to be clear that the said acts
were so committed in pursuance of an agreement made
between the accused who are party to the alleged
conspiracy; that inferences from such proved
circumstances regarding the guilt may be drawn only
when such circumstances are incapable of any other
reasonable explanation. It has also been held by the
Supreme Court in a catena of cases that in a criminal
case the onus lies on the prosecution to prove
affirmatively that the accused was directly and
personally connected with the acts or omissions
attributed to the crime committed by him.Ф
(b) Ranjitsing Brahmajeetsing Sharma Vs. State of Maharashtra and
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another [(2005) 5 SCC 294], wherein it is held as under:-
УThe interpretation clause as regard the expression abet
does not referto the definition of abetment as contained
in Section 107 of IPC. It refers to such meaning which
can be attributed to it in the general sense with
grammatical variations and cognate expressions.
However, having regard to the cognate meaning, the
term may be read in the light of the definition of these
words under Sections 107 and 108 of the Indian Penal
Code. The inclusive definition although expansive in
nature, “communication” or “association” must be read
to mean such communication or association which is in
aid of or render assistance in the commission of
organized crime. In our considered opinion, any
communication or association which has no nexus with
the commission of organized crime would not come
within the purview thereof. It must mean assistance to
organised crime or organised crime syndicate or to a
person involved in either of them. It, however, includes
(a) communication or (b) association with any person
with the actual knowledge or (c) having reason to
believe that such person is engaged in assisting in any
manner, an organised crime syndicate. Communication
to, or association with, any person by itself, as was
contended by Mr. Sharan, would not, in our considered
opinion, come within meaning of the aforementioned
provision. The communication or association must
relate to a person. Such communication or association
to the person must be with the actual knowledge or
having reason to believe that he is engaged in assisting
in any manner an organised crime syndicate. Thus, the
offence under Section 3(2) of MCOCA must have a
direct nexus with the offence committed by an
organised crime syndicate. Such abetment of
commission of offence must be by way of accessories
before the commission of an offence. An offence may be
committed by a public servant by reason of acts of
omission and commission which would amount to
tampering with the investigation or to help an accused.
Such an act would make him an accessory after the
commission of the offence. It is interesting to note that
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whereas Section 3(2) having regard to the definition of
the term ‘abet’ refers directly to commission of an
offence or assisting in any manner an organised crime
syndicate, Section 24 postulates a situation where a
public servant renders any help or support both before
or after the commission of an offence by a member of
an organised crime syndicate or abstains from taking
lawful measures under this Act.Ф
6.

Per contra, vide say filed at Exh.2, learned SPP opposed
application. It is submitted that the accused persons had fired bullets
on the deceased and 3 injured due to past quarrel. The applicant had
helped accused persons to hide their weapons and clothes and screen
the said evidence. The applicant had provided motorcycle and mobile
phone to the accused persons. The applicant had been part of
conspiracy. The weapons used in the crime and the clothes of the
accused are seized during investigation. It is submitted that applicant
was in contact with the accused persons and he was getting
pecuniary gain from them. There is prima-facie material against the
applicant. Hence, prayed for rejection of the bail application.
7.

Considering the matter, it is alleged that the accused
persons due to grudge of the previous quarrel fired bullets on the
deceased and injured. Prosecution relied upon inquest panchanama
dated 24.12.2023 of the deceased (page nos.54 to 56 of the
chargesheet) which shows that bleeding injuries caused to deceased due
to firing of arms. Prosecution relied upon spot panchanama dated
24.12.2023 (page nos.57 to 60 of the chargesheet) which shows that
about various bullet caps, cartridges, country made pistol and blood
swabs are seized at the spot. Prosecution relied upon panchanama
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(page nos.61 to 64 of chargesheet) regarding seizure of blood stained
clothes of the injured. Prosecution relied upon disclosure panchanamas
(page nos.65, 66 & 74, 75 of chargesheet) of co-accused no.1,
panchanama (page nos.72 & 73 of chargesheet) of co-accused no.5,
producing fire arms used in the crime. Prosecution also relied upon
disclosure panchanama of the applicant (page nos.68 & 69 of
chargesheet) producing motorcycle provided by the applicant to the coaccused and mobile phone of the applicant. There is prima facie
material which shows that the applicant had accorded help to the
accused persons by hiding their clothes and weapons and providing
motorcycle and mobile phone to them.
8.

Considering the material and allegation against the
applicant, there are reasonable grounds for believing that the
accusation against applicant are prima facie true. The offence is very
serious in nature. I have gone through the case laws relied by the
learned advocate for the applicant, with great respect to the ratio laid
down therein, same are not helpful to the applicant. In view of
allegations against the applicant and impediment under Section 21(4)
of MCOCA, applicant is not entitled for grant of bail. Hence, I proceed
to pass following order:ORDER
Bail Application No.162 of 2024 is rejected and disposed of.
RAJESH
JAGURAM
KATARIYA
Digitally signed
by RAJESH
JAGURAM
KATARIYA
Date:
2024.04.16
11:03:18
+0530
(Rajesh J. Katariya)
Special Judge
Date: 15.04.2024
City Civil and Sessions Court,
Gr. Mumbai
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Dictated on : 15.04.2024
Typed on : 15.04.2024
Signed on : 15.04.2024
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDERФ
UPLOAD DATE
TIME
NAME OF STENOGRAPHER
16.04.2024
11.15 am
Umesh G. Jadhav
Name of the Judge
HHJ SHRI R.J.KATARIYA (CR No.25)
Date of Pronouncement of Judgment/Order.

15.04.2024
Judgment/order signed by P.O on
15.04.2024
Judgment/order uploaded on
16.04.2024