IN THE COURT OF SPECIAL JUDGE,MCOCA FOR GR.BOMBAY
AT MUMBAI.
BAIL APPLICATION NO. 776 OF 2021
IN
MCOCA REMAND APPLICATION NO. 882 OF 2021
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Shiva Rajesh Varma
Age: 25 years.
R/a: Gharonda Village,
Behind Gharonda Bus Depot,
Near Sai Mandir, Ghansoli,
Navi Mumbai-400 000.
Е Applicant/
Accused
Versus
The State of Maharashtra
(At the instance of Chembur Police
Station Mumbai)
Е Respondent.
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Learned Advocate Mr.Anil Bansode for applicant.
Learned S.P.P. Mr. S. E. Soshte for State.
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CORAM : HIS HONOUR THE SPECIAL JUDGE
SHRI. DINESH E. KOTHALIKAR (C.R.NO.25)
DATED : 27th September, 2021.
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(DICTATED AND PRONOUNCED IN OPEN COURT)
ORAL ORDER
By this application the applicant, who has been arrested in
C.R. No.I-355 of 2021 registered with Govandi Police Station, Mumbai
for the offence punishable under Section 392 read with 34 of the IP
Code and Section 3(1)(ii), 3(2) and 3(4) of the MCOC Act, has claimed
bail under Section 439 of the Code of Criminal Procedure, 1973.
2.
The applicant has come with the contention that in the aforesaid
crime he has been arrested on 10.07.2021. It has been alleged by the
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informant that on 6.7.2021 at 8.30 a.m. she came to Shatabdi Hospital
along with her husband for vaccination. Thereafter, at about 4.50 p.m.
the informant had left the hospital and was proceeding on the road.
According to her, at about 5.00 p.m. she came opposite to Lunar
Lubricants, Shivaji Road, Govandi (East) and that at that time two
unknown persons have come from behind, on a motorcycle and that the
pilon rider had snatched the Mangalsutra from the person of the
informant and the both have fled away. Thereafter, the informant had
lodged the report.
3.
During investigation the applicant and co-accused were arrested.
According to the applicant, the report was lodged against unknown
persons and that he has been falsely implicated in this crime and that
the identification of the applicant in the crime is doubtful. It is claimed
that the applicant is facing only one criminal case, which is pending
before the learned Metropolitan Magistrate. There is absolutely nothing
on record to show the involvement in the crime. The investigation in the
crime is over and thus, no purpose would be served, by putting the
applicant behind bar. Hence, it is prayed for grant of bail.
4.
The prosecution has opposed the application by filing reply Exh.2.
It is claimed that during investigation involvement of the applicant and
the co-accused was revealed and therefore they were arrested. During
interrogation at the instance of applicant, the motorcycle used in the
commission of the crime, came to be seized. It was also revealed that
the applicant is the person, who had snatched the Mangalsutra from the
person of the informant. Further, the Muddemal Property involved in
this crime has been seized at the instance of co-accused. Further, it was
found that the applicant was the member of an organized Crime
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Syndicate headed by the co-accused and that he and other members of
the syndicate were involved in the continuous unlawful activity.
Therefore provisions of MCOC Act have been invoked.
5.
According to the prosecution investigation in the crime is in
progress, the test identification parade is yet to be conducted. Hence it
is prayed for rejection of the application.
6.
I have heard the submissions made by Learned Advocate Mr. Anil
Bansode for the applicant and Learned S.P.P. Mr. Soshte.
7.
Mr. Anil Bansode, learned advocate for the applicant has
submitted that there is no material available against the applicant, to
connect him with the crime. However, upon perusal of the reply filed by
the investigation officer it would reveal that in pursuant to the
statement made by the co-accused, the ornaments and chain involved in
this crime has been seized. Further, at the instance of the applicant, the
motorcycle involved in the crime was seized. This can be said to be
sufficient material to show the involvement of the applicant in the
present crime. There is no second opinion that the investigation in this
crime is in progress, as it is reported that the test identification parade,
is yet to be conducted. In view of the material available before me there
is no hesitation to conclude that there is prima facie material against the
applicant showing his involvement in the commission of the crime.
Therefore, I do not find merit in the submission made by the learned
advocate for the applicant.
8.
Learned advocate for the applicant has submitted that the
applicant is facing only one criminal case and that in the said case, the
gang leader was not an accused. Further, in the cases which are pending
against the gang leader, the applicant has not been shown as an
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accused. Therefore, he has claimed that the applicant, on this count, is
entitled to be released on bail. In this backdrop, it would be just to
make reference to the judgment of the Hon’ble Bombay High Court, in
the case of Sachin Bansilal Ghaiwal versus State of Maharashtra
(Through Crime Branch, Pune) decided on 16.07.2014, wherein it has
been held that;
“33. The fourth contention raised in paragraph 4 above
by the Appellants is that, mere submitting antecedents
by the police of the person is not sufficient to invoke
the provisions of the MCOC Act and there must be a
common thread amongst all the persons to say that the
crime must have been committed on behalf of the
crime syndicate. The said submission has only to be
recorded, to be rejected, at its threshold. The reason
being twofold. Firstly, the said submission is made
without taking into consideration the ratio laid down
by the Division Bench of this Court in the case of
Govind Sakharam Ubhe (supra) which clearly clarifies
and settles the position of law as to the filing of the
charge-sheets. The Division Bench has in unequivocal
terms laid down the ratio that the requirement of
more than one charge-sheet is qua the unlawful
activities of the organised crime syndicate and not qua
the individual member thereof. The second reason is
that, construing the said Section 2(1)(d) of the MCOC
Act in the manner as submitted by Mr. S.V. Kotwal,
learned counsel for the Appellant in Criminal Appeal
25 of 2014, would indubitably not only frustrate but
would also further lead to give nugatory effect to the
intention of the legislature in enacting the said
provision. We therefore refrain ourselves from
accepting such a narrow and constricted
interpretation of the said provision viz. Section 2(1)(d)
of the MCOC Act.”
9.
Thus, as stated above, the Hon’ble High Court has held that
requirement of more than one charge-sheet is qua the unlawful activities
of the organized crime syndicate and not qua individual member
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thereof. Therefore, the contention raised by the learned advocate for the
applicant cannot be accepted.
10.
Be that as it may, upon perusal of the prior approval dated
09.08.2021 which was granted by the Additional Commissioner of
Police, East Region Chembur, it would reveal that the gang leader has
been charge-sheeted in more than one charge-sheets i.e. 1. C.R.
NO.56/2018 for the offence punishable Under Section 341, 327, 323
read with 34 of I.P. Code, 2. C.R. No.402 of 2018 for the offences
punishable under Sections 307, 324 and others of I. P. Code (KoparKhairane Police Station), 3. C.R. No.456 of 2018 (Satara Shahupuri
Police Station) for the offence punishable under Sections 392 read with
34 of IP Code, have been considered by the Additional Commissioner of
Police for invoking the provisions of MCOC Act. Upon perusal of the
reply it would reveal that additionally the members of the gang were
prosecuted in 1. C.R. No.316 of 2016 for the offences punishable under
Section 397, 395 and others of IP Code and 2. C.R. No.295 of 2020
(Kopar Khairane Police Station) for the offences punishable under
Sections 392 read with 34 of IP Code and 3. C.R. No.297 of 2020 (Kopar
Khairane Police Station) for the offence punishable under Section 392
read with 34 of IP Code.
11.
It is found from the prior approval that the authority granting
prior approval has concluded that the offences which were punishable
with more than three years have been committed by the applicant and
the members of the gang with the motive of pecuniary gain within the
period of preceding ten years. He has further observed that the accused
being the members of the Organised Crime Syndicate, singly or jointly
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have committed violent crime for pecuniary gains and thus, prior
approval was granted. Therefore, I do not find merit in the submissions
made by the learned advocate for the applicant.
12.
The conspectus of the aforesaid consideration is that there is
prima facie material available on record against the applicant showing
his involvement and as such he is not entitled to be released on bail. Up
shot of above discussion, leads me to pass the following order;
ORDER
Bail Application No.776 of 2021 is hereby rejected.
Date: 27.09.2021.
Dictated on : 27.09.2021.
Typed on : 27.09.2021.
Signed on : 27.09.2021.
(Dinesh E. Kothalikar)
Special Judge, MCOCA
City Civil and Sessions Court,
For Greater Mumbai.
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У CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDERФ
UPLOAD DATE AND TIME
NAME OF STENOGRAPHER
: 27.09.2021 AT 5.21 pm
: Mrs.Prajakta K. More
NAME OF THE JUDGE
HHJ SHRI.D.E.KOTHALIKAR
(C.R.No.25)
Date of Pronouncement of Order
27.9.2021
Order signed by the P.O. On
27.9.2021
Order uploaded on
27.9.2021