MHCC020038352024
IN THE COURT OF SPECIAL JUDGE,
CITY CIVIL AND SESSIONS COURT OF GR. BOMBAY
BAIL APPLICATION NO.197 OF 2024
Vishal Krishna Utekar
Е Applicant
/Accused
V/s.
The State of Maharashtra
(Through, Chunabhatti Police Station, Mumbai
Vide C.R. No.544/2023)
… Prosecution.

Appearances:Advocate Mr. Tushar Khandare 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.17
for grant of bail in regard to crime no.544 of 2023, registered at
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Chunabhatti Police Station for the offences under Sections 302, 307,
120(B), 201, 212 read with 34 of Indian Penal Code (in short УIPC),
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. 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 13.02.2024,
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. He has no concern with the alleged
offence. Applicant is the photographer. He has no role with the said
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crime. The applicant has no criminal antecedents. Hence, prayed for
allowing the application.
5.

Learned advocate for applicant placed reliance on the
following case laws:(a) Ranjitsing Brahmajeetsing Sharma Vs. State of Maharashtra and
another [2005 (2) Bom. C.R. (Cri) 567], 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
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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
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
(b) Saju Vs. State of Kerala [AIR 2001 SC 175]. Learned advocate for
applicant pointed out para no.7 which reads as under:-
У7. 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
attributable to the crime committed by him. It is settled
position of law that act or action of one of the accused
cannot be used as evidence against other. However, an
exception has been carved out under Section 10 of the
Evidence Act in the case of conspiracy. To attract the
applicability of Section 10 of the Evidence Act, the
Court must have reasonable ground to believe that two
or more persons had conspired together for committing
an offence. It is only then that the evidence of action or
statement made by one of the accused could be used as
evidence against the otherЕ..Ф
6.

Per contra, vide say filed at Exh.2, learned SPP opposed
application. It is submitted that the accused persons had fired bullets
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on the deceased and 3 injured due to past quarrel. It is submitted that
applicant had initially called deceased at house at 12.30 pm for
taking photographs, however subsequently, under a pretext that the
photographs would not be snapped properly, thereafter about 3
hours, he had called deceased at the studio. It is alleged that the
accused persons had performed reikee at that place. There was
conspiracy fetched for commission of crime. It is contended in the say
that during investigation it revealed that the applicant had given
information to the accused persons about the arrival of the deceased
at studio, in advance. It is alleged that the applicant has involvement
in the crime. 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
(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. There are specific allegations in
the say that the applicant had initially called deceased at house for
taking photographs and subsequently asked him to come at photo
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studio at 3.10 pm. There are allegations that the accused persons had
performed reikee at the spot. It is alleged that the applicant in collusion
with the accused under pretext that the photograph would not be
snapped properly called him at the studio and had been part of
conspiracy.
8.

Considering the material and allegation against the
applicant, there are reasonable grounds for believing that the
accusation against applicant are prima facie true. 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.197 of 2024 is rejected and disposed of.
RAJESH
JAGURAM
KATARIYA
Digitally signed
by RAJESH
JAGURAM
KATARIYA
Date: 2024.04.16
11:04:09 +0530
(Rajesh J. Katariya)
Special Judge
Date: 15.04.2024
Dictated on : 15.04.2024
Typed on : 15.04.2024
Signed on : 15.04.2024
City Civil and Sessions Court,
Gr. Mumbai
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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