IN THE COURT OF SPECIAL JUDGE, MCOCA FOR GR.BOMBAY
AT BOMBAY
BAIL APPLICATION NO. 1202 OF 2020
Ashok Mohanraj Chhajed
Age: 60 years.
R/a: 701-702 Shilpa Building, Juhu
Lane, C.D.Barfiwala Road, Andheri (W),
Mumbai 400 058.
… Applicant.
Versus
The State of Maharashtra
(At the instance of DCB CID, Unit-IX )
… Respondent.
Learned Advocates M/s Ashok Sarogi and Aniket Nikam for applicant.
Learned Chief PP Mr. Jaysing Desai for State.
Learned Advocates Mr. Sudeep Pasbola and Ms. Trupti Shetty for the
intervener.
CORAM : HIS HONOUR THE SPECIAL JUDGE
SHRI. DINESH E. KOTHALIKAR (C.R.NO.25)
DATED : 15th January, 2021.
(DICTATED AND PRONOUNCED IN OPEN COURT)
ORAL ORDER
.
By this application the applicant, who has been arrested in C.R.
No.118 of 2020 registered with the DCB CID Unit IX, Mumbai for the
offence punishable under Section 302, 120-B, read with 34 of the
IPCode, Sections 37 (1) (A) read with 135 of the Maharashtra Police Act
and Section 3(1) (i), 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 30.10.2020 by D.N. Nagar
Police Station in Crime No.534 of 2020. In the report dated 01.11.2020,
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it has been alleged by the informant that the deceased Munaf was his
maternal uncle. In the year 2007 deceased Nunaf had started SRA
Project at Navbharat Co-Operative Housing Society. In the year 2008 he
had purchased land admeasuring 1200 Square Feet from Abdul Latif,
the father of accused No.1. However, it was objected by accused No.1. In
the year 2009 deceased Munaf had started meetings with Salim Baig,
the partner of Basera Project, so that he would be included in the
project. However, accused Nasim Khan and Peshkar Khan were not
favourable to it. According to the informant, in the month of October
2019, Anwar Shaikh had informed that accused No.1 and Naseem
Peshkar Khan had given contract to Ankit to kill deceased Munaf and a
criminal conspiracy was hatched to commit murder of Munaf at Irla
Masjid, however it was not accomplished.
3.
The informant has further claimed that on 17.08.2020 at
about 5.50 a.m. the deceased Munaf had gone to Irla Masjid for prayer.
While he was alighting from the car an unknown person had given the
blow of sharp edged weapon on his head. Therefore, the deceased had
tried to rush towards the gate of Masjid , the assailant had given blows
of the weapon on the back, chest and stomach. At that time the
deceased had raised shouts. Thereafter, the assailant had fled away
towards the direction of Gulmohar Road. Thereafter, the police had
reached at the said spot and took the injured to Cooper Hospital, but he
was declared dead. Thereafter, Crime under C.R. No.258/2020 was
registered.
4.
During investigation clothes which were on the person of
accused No.2, at the time of commission of the offence, were seized. On
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18.08.2020 witness Nadim had produced the compact disc containing
video recording. On the very day, the Investigation officer had seized
mobile phone containing Connection number 8898656194 from accused
No.1. During investigation, it was revealed that accused No.2 on the
instructions of accused No.6 had committed murder of the Munaf
Shaikh. Accused No.1 had made a phone call to accused No.2 Nadim on
his mobile connection No.9506040918. Thereafter after the incident
accused No.1 made the first phone call to accused No.2 and had given
intimation about the occurrence. The investigation further proceeded to
state that the witness had produced copy of the deed of partnership
dated 15.07.2003 between the applicant, Vijay Sharma and Salim Baig
in respect of Emel enterprises wherein applicant was having 25% shares
whereas Vijay and Salim were having 51% and 24% shares respectively.
Thereafter, the Hon’ble High Court had stayed project and for payment
of rent, other maintenance and for the litigation expenses said Vijay had
spent amount. However, after the stay was vacated said Vijay did not
have sufficient fund. Therefore, the deceased was introduced for making
investment in the said project. Accordingly in the month of March, 2019
a meeting was scheduled between Vijay, deceased Munaf and Nasar.
However, said meeting was not attended by the applicant. He had asked
to remove Vijay Sharma from the project. He had also opposed for the
entry of deceased Munaf in the said project. However vide agreement
dated 14.03.2019 Munaf Shaikh was introduced as a partner and his
share was determined at 10%. Said fact was disliked by the applicant.
Since during investigation, it was revealed that the applicant by
hatching criminal conspiracy with the co-accused had committed
murder of the deceased, he was arrested. On 06.11.2020, specimen of
voice of the applicant was collected.
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5.
During investigation, on 23.10.2020 prior approval for invoking
MCOCA was granted by the Joint Commissioner of Police (Crime)
Mumbai. Thereafter vide sanction order dated 02.12.2019, sanction
under Section 23 (2) of the MCOC Act has been accorded for
prosecuting the accused for the offence punishable under Section 3(1)
(i), 3(2), 3(4) of the MCOC Act was accorded. Accordingly report under
Section 173 of the Cr.P.Code has been submitted against the applicant
and the co-accused.
6.
According to the applicant he has been falsely implicated in this
crime at the behest of Mr.Vijay Sharma as he was having litigation with
him. According to him, he was not having any concerned with the MOU
dated 23.12.2018 nor he had got any benefit out of the said MOU nor it
had affected or prejudiced his rights. He claims that he has no business
transactions with the deceased. He had appointed the co-accused
Peshkar as a caretaker.
7.
According to the applicant, the cases on which reliance has been
placed, were relating to the incidents which have taken place before the
applicant had come in contact with said Peshkar Khan. It is claimed that
the sanctioning authority while according sanction to invoke the
provisions of MCOC Act has not applied mind. Therefore, according to
the applicant his arrest is illegal. Thus, the applicant has claimed bail.
8.
The application has been objected by the prosecution by filing
reply Exh.7. It is claimed that during investigation it is revealed that
accused No.6 was the gang leader and in order to gain pecuniary
advantages he had participated in the Basera co-operative housing
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society JVPD Andheri (W), Mumbai (SRA project). In order to pressurize
the local residence, the applicant had formed a gang. However since
other two partners with a view to get financial support have introduced
deceased Munaf as a partner in the said project, the applicant and the
co-accused have hatched criminal conspiracy to commit murder of
deceased Munaf. It was further revealed during investigation that the
applicant had arranged for the vehicle, spot, weapon and provided
financial aid for executing the agreement of conspiracy.
9.
According to the prosecution during investigation it is
revealed that the applicant had introduced a person having criminal
background with a view to pressurize co-partners and the local
residence. The audio recording in respect of the same gives support to
the version of the witness. Further the applicant had introduced accused
No.5 as a partner in the said project without giving information about
the same to the co-partners and had entered into an written agreement
with accused No.5. Therefore, the prosecution has claimed that this
aspect goes to suggest that criminal conspiracy was hatched.
10.
It has been further claimed that while introducing deceased
Munaf a discussion had taken place amongst all the partners. However,
at the time of meeting the applicant had remained absent, which
suggest that he was not in favor of introducing deceased Munaf as a
partner in the said project. It has been further claimed that investigation
qua accused Nos.5 and 6 is still in progress. Therefore, it is prayed for
rejection of the application.
11.
The learned advocate for the applicant has submitted that
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the restriction on the power of the court to grant bail cannot be pushed
too far and that if the court is of the opinion that the material placed on
record is not sufficient to convict the accused, in that case the accused
can be released on bail. In support of the submission he has relied upon
the judgment in the case of RANJITSING BRAMHAJEETSING SHARMA
Vs STATE OF MAHARASHTRA 2005 SCC (CRI) 1057, wherein it has
been held that;
“The wording of Section 21(4), in our opinion, does
not lead to the conclusion that the Court must arrive at
a positive finding that the applicant for bail has not
committed an offence under the Act. If such a
construction is placed, the court intending to grant bail
must arrive at a finding that the applicant has not
committed such an offence. In such an event, it will be
impossible for the prosecution to obtain a judgment of
conviction of the applicant. Such cannot be the
intention of the Legislature. Section 21(4) of MCOCA,
therefore, must be construed reasonably. It must be so
construed that the Court is able to maintain a delicate
balance between a judgment of acquittal and
conviction and an order granting bail much before
commencement of trial. Similarly, the Court will be
required to record a finding as to the possibility of his
committing a crime after grant of bail. However, such
an offence in futuro must be an offence under the Act
and not any other offence. Since it is difficult to
predict the future conduct of an accused, the court
must necessarily consider this aspect of the matter
having regard to the antecedents of the accused, his
propensities and the nature and manner in which he is
alleged to have committed the offence.
It is, furthermore, trite that for the purpose of
considering an application for grant of bail, although
detailed reasons are not necessary to be assigned, the
order granting bail must demonstrate application of
mind at least in serious cases as to why the applicant
has been granted or denied the privilege of bail.
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The duty of the court at this stage is not to weigh
the evidence meticulously but to arrive at a finding on
the basis of broad probabilities. However, while
dealing with a special statute like MCOCA having
regard to the provisions contained in Sub-section (4)
of Section 21 of the Act, the Court may have to probe
into the matter deeper so as to enable it to arrive at a
finding that the materials collected against the accused
during the investigation may not justify a judgment of
conviction. The findings recorded by the Court while
granting or refusing bail undoubtedly would be
tentative in nature, which may not have any bearing
on the merit of the case and the trial court would,
thus, be free to decide the case on the basis of
evidence adduced at the trial, without in any manner
being prejudiced thereby.”
12.
He has further relied upon the judgment of Hon’ble Apex
Court in the case of Chenna Boyanna Krishna Yadav Vs State of
Maharashtra and another (2007) 1 Supreme Court Cases 242 wherein
the Hon’ble Apex Court has held as under;
“16. At this stage, it is neither necessary nor
desirable to weigh the evidence meticulously to
arrive at a positive findings as to whether or not
the appellant has committed offence under
Section 3 (2) or Section 24 of MCOCA. What is
to be seen whether there is a reasonable ground
for believing that the appellant is not guilty of
the two offences, he has been charged with, and
further that he is not likely to commit an offence
under MCOCA while on bail. As noted above,
the circumstance which has weighed with High
Court to conclude that the appellant had the
knowledge of the organized crime syndicate of
Telgi, printing fake stamps, etc. and these were
being sold under the protection of the appellant
and hence he had abetted an organized crime, is
the alleged conversation between him and Telgi
in January, 1998, after the kidnapping incident.
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In our view, the alleged conversation may show
the appellant’s acquaintance with Telgi but may
not per se be sufficient to prove the appellant’s
direct role with the commission of an organized
crime by Telgi, to bring home an offence of
abetment in the commission of organized crime
falling within the ambit of Section 3 (2) of
MCOCA and /or that he had rendered any help
or support in the commission of an organized
crime whether before or after the commission of
such offence by a member of an organized crime
syndicate or had abstained from taking lawful
measures under MCOCA, thus, falling within the
purview of Section 24 of MCOCA. It is true that
when the gravity of the offence alleged is
severe, mere period of incarceration or the fact
that the trial is not likely to be concluded in the
near future either by itself or conjointly may not
entitle the accused to be enlarged on bail.
Nevertheless, both these factors may also be
taken into consideration while deciding the
question of grant of bail.”
13.
In this regard the learned advocate for the informant has
relied upon the judgment of the Hon’ble Apex court in the case of STATE
OF MAHARASHTRA Vs VISHWANATH MARANNA SHETTY (2012) 10
SCC 561 and submitted that the court at the time of deciding the
application for bail shall consider the question of reasonable grounds
and while doing so recording of satisfaction on both the aspects
mentioned in clauses (a) and (b) of Sub-section (4) of Section 21 is
necessary. In the said judgment the Hon’ble Apex Court has also
considered the judgment in the case of Ranjitsing (cited supra) and held
that;
“While dealing with a special statute like MCOCA, having
regard to the provisions contained in sub-section (4) of
Section 21 of this Act, the Court may have to probe into
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the matter deeper so as to enable it to arrive at a finding
that the materials collected against the accused during the
investigation may not justify a judgment of conviction.
Similarly, the Court will be required to record a finding as
to the possibility of his committing a crime after grant of
bail. What would further be necessary on the part of the
Court is to see the culpability of the accused and his
involvement in the commission of an organized crime
either directly or indirectly. The Court at the time of
considering the application for grant of bail shall consider
the question from the angle as to whether he was
possessed of the requisite mens rea. In view of the above,
we also reiterate that when a prosecution is for offence(s)
under a special statute and that statute contains specific
provisions for dealing with matters arising there under,
these provisions cannot be ignored while dealing with
such an application. Since the respondent has been
charged with offence under MCOCA, while dealing with
his application for grant of bail, in addition to the broad
principles to be applied in prosecution for the offences
under the IPC, the relevant provision in the said statute,
namely, sub-section (4) of Section 21 has to be kept in
mind. It is also further made clear that a bare reading of
the non obstante clause in sub-section (4) of Section 21 of
MCOCA that the power to grant bail to a person accused
of having committed offence under the said Act is not only
subject to the limitations imposed under Section 439 of
the Code of Criminal Procedure, 1973 but also subject to
the restrictions placed by clauses (a) and (b) of subsection (4) of Section 21. Apart from giving an
opportunity to the prosecutor to oppose the application
for such release, the other twin conditions, viz., (i) the
satisfaction of the Court that there are reasonable grounds
for believing that the accused is not guilty of the alleged
offence; and (ii) that he is not likely to commit any
offence while on bail, have to be satisfied. The satisfaction
contemplated in clauses (a) and (b) of sub-section (4) of
Section 21 regarding the accused being not guilty, has to
be based on “reasonable grounds”. Though the expression
“reasonable grounds” has not been defined in the Act, it is
presumed that it is something more than prima facie
grounds. We reiterate that recording of satisfaction on
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both the aspects mentioned in clauses (a) and (b) of subsection (4) of Section 21 is sine qua non for granting bail
under MCOCA.”
14.
Thus, in view of the aforesaid judgment recording of
satisfaction on both the aspects mentioned in clauses (a) and (b) of subsection (4) of Section 21 is sine qua non while considering bail
application under MCOCA. Bearing in mind the aforesaid law, I am
required to deal with the issues involved in this case.
15.
The learned advocate for the applicant has vehemently
submitted that the material brought on record indicates that the offence
relied upon by the sanctioning authority for invoking MCOC Act,
levelled against the gang leader were arising out of the personal
disputes and as such it cannot be said that there was some prima facie
material to show that the objective is to gain advantages and benefits,
pecuniary or otherwise, has to be placed on record. Therefore, it is
claimed that the sanctioning authority has accorded sanction without
application of mind. In support of the submission reliance has been
placed upon the judgment of Hon’ble Bombay High Court in the case of
STATE OF MAHARASHTRA Vs BHARAT BABURAO GAVHANE in
CRIMINAL APPEAL No.73 OF 2005.
16.
In this regard the learned advocate for the informant has
relied upon the judgment of the Hon’ble Bombay High Court (F.B.) in
the case of STATE OF MAHARASHTRA Vs JAGAN GAGANSINGH NEPALI
@ JAGYA 2011 (5) Mh.L.J. 386. In the said judgment it has been held
that;
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“34. It can, thus, clearly be seen that the purpose
behind enacting the MCOCA was to curb the
activities of the organised crime syndicates or
gangs. The perusal of the Preamble and the
Statement of Objects and Reasons and Preface, in
our considered view, does not lead to any narrower
meaning that MCOCA has been enacted only for
the purpose of curbing activities which involve
pecuniary gains or undue economic advantages.
The mischief which is sought to be cured by
enactment of MCOCA is to curb and control
menace of organised crime. The law has been
enacted with the hope that the elements spread by
the organised crime in the Society can be
controlled to a great extent and for minimizing the
fear spread in the society. If a narrower meaning as
sought to be placed is accepted, it will frustrate the
object rather than curing the mischief for which the
Act has been enacted.”
17.
In this regard the learned advocate for the applicant has
made an attempt to dispute the aforesaid proposition of law stating that
said judgment has been challenged before the Apex Court and the same
is pending. However, when a query was made to the learned advocate
for the applicant, whether there is stay to the aforesaid judgment, he
has submitted that such an order has not been passed by the Hon’ble
Apex Court. In this view of the matter, it can be said that the law laid
down by the Hon’ble High Court is binding upon this court. In view of
the judgment in the aforesaid judgment I conclude that there is no force
in the contention raised by the learned advocate for the applicant that
the MCOCA has been enacted only for the purpose of curbing activities
which involve pecuniary gains or undue economic advantages.
18.
The learned advocate for the applicant has further argued
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that the applicant is not an accused in any of the cases relied upon by
the prosecution for invoking MCOC Act against the applicant. Therefore,
it is claimed that prima facie offence under the MCOC Act is not made
out. In support of the submission reliance has been placed on the
judgment of Hon’ble Bombay High Court in the case of Deepak
Madhavrao Mankar Vs State of Maharashtra in W.P. No. 1670 of 2019
decided on 22.10.2019. In the said case Hon’ble High Court has relied
upon the judgment in the case of Prasad Shrikant Purohit Vs. State of
Maharashtra wherein the Hon’ble Apex Court has held that there was no
material on record to show the nexus of the accused who were
proceeded for their involvement in other crime and therefore it was held
that there was considerable doubt about the involvement of the coaccused in other two cases and therefore it was concluded that their bail
application to be considered on merits.
19.
On this point, reliance has been placed by the Learned S.P.P.
on the judgment of the Hon’ble Bombay High Court in the case of
Govind Sakharam Ubhe V/s. State of Maharashtra 2009 ALL MR (Cri)
1903, wherein it has been held that;
“37. But even otherwise, if all provisions are read
together we reach the same conclusion. Section
2(1) (d) which defines ‘continuing unlawful
activity’ sets down a period of 10 years within
which more than one chargesheet have to be filed.
The members of the crime syndicate operate either
singly or jointly in commission of organized crime.
They operate in different modules. A person may
be a part of the module which jointly undertakes
an organized crime or he may singly as a member
of the organized crime syndicate or on behalf of
such syndicate undertake an organized crime. In
both the situations, the MCOCA can be applied. It
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is the membership of organized crime syndicate
which makes a person liable under the MCOCA.
This is evident from Section 3(4) of the MCOCA
which states that any person who is a member of
an organized crime syndicate shall be punished
with imprisonment for a term which shall not be
less than five years but which may extend to
imprisonment for life and shall also be liable to
fine, subject to a minimum of fine of Rs.5 lakhs.
The charge under the MCOCA ropes in a person
who as a member of a organized crime syndicate
commits organized crime i.e. acts of extortion by
giving threats, etc. to gain economic advantage or
supremacy, as a member of the crime syndicate
singly or jointly. Charge is in respect of unlawful
activities of the organized crime syndicate.
Therefore, if within a period of preceding ten
years, one chargesheet has been filed in respect of
organized crime committed by the members of a
particular crime syndicate, the said
chargesheet
can be taken against a member of the said crime
syndicate for the purpose of application of the
MCOCA against him even if he is involved in one
case. The organized crime committed by him will
be a part of the continuing unlawful activity of the
organized crime syndicate. What is important is the
nexus or the link of the person with organized
crime syndicate. The link with the organized crime
syndicate’ is the crux of the term ‘continuing
unlawful activity’. If this link is not established, that
person cannot be roped in.
- The submission on behalf of the appellant is
that even though all the four accused namely, A, B,
C and D may be members of the organized crime
syndicate since against each of the accused not
more than one chargesheet is filed, it cannot be
held that they are engaged in continuing unlawful
activity as contemplated under Section 2(1)(d) of
the MCOCA. Apart from the reasons which we have
given hereinabove, as to why such a construction is
not possible, having regard to the object with
which the MCOCA was enacted, namely to make
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special provisions for prevention and control of
organized crime syndicate and for coping with
criminal activity by organized crime syndicate, in
our opinion, Section 2(1)(d) cannot be so
construed. Such a construction will defeat the
object of the MCOCA. What is contemplated under
Section 2(1)(d) of the MCOCA is that activities
prohibited by law for the time being in force which
are punishable as described therein have been
undertaken either singly or jointly as a member of
organized crime syndicate and in respect of which
more than one chargesheets have been filed. Stress
is on the unlawful activities committed by the
organized crime syndicate. Requirement of one or
more chargesheet is qua the unlawful activities of
the organized crime syndicate. - Since in Asif Khan, the point which we are
considering was squarely raised and answered, its
ratio is attracted to the present case. In Deepak
Baja v/s. State of Maharashtra and Anr., 2008 AIR
SCW 7788, while considering the presidential value
of a judgment, the Supreme Court took a resume of
several decisions rendered by it. The Supreme
Court referred to its judgment in Ambica Quarry
Works V/s. State of Gujarat and ors., (1987) 1 SCC
213, wherein it has observed that the ratio of any
decision must be understood in the background of
the facts of that case and a case is only an authority
for what it actually decided and not what logically
follows from it. In the light of this, we are of the
opinion that the
words
‘more
than
one
chargesheet’ contained in Section 2(1) (d) refer to
unlawful activities of the organized crime
syndicate. Requirement of more than one
chargesheet is qua the unlawful activities of the
organized crime syndicate and not qua individual
member thereof.”
20.
He has further relied upon the judgment in the case of
Mujahid Ibrahim Pathan Vs The State of Maharashtra 2015 All MR (Cri)
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876 wherein relying on the judgment of Hon’ble Bombay High Court in
the case of Sachin Bansilal Ghaiwal Vs State of Maharashtra, it has been
held that;
“10. The said view is followed by this Court in the
case of Sachin Bansilal Ghaiwal (cited supra),
wherein this Court, while dealing with the said
contentions has observed at paragraphs No.38 and 39
as under;
- Thus, according to us and in our humble
opinion and giving our earnest consideration, the
expression ‘member’ as has not termed in Section 2
(1) (d) of the MCOC Act cna be interpreted and
defined as, a person who participates in the crime
either actively or passively or a person who facilitates
the commission of the crime committed by the
organized crime syndicate or on behalf of the
organized crime syndicate, automatically becomes the
member of the said crime syndicate which commits
the offence or on whose behalf the offence in
question is committed, as contemplated under Section
2 (1) (d), 2 (1) (e), Section 3 and other provisions of
the MCOC Act. - The said intention of the legislature can
further be gathered from the expression which is used
in sub section (2) of Section 3 of the MCOC Act i.e.
“any act preparatory to organised crime’ has direct
bearing in Section 2 (1) (d) of the MCOC Act and
therefore taking into consideration the intention of
the legislature, widest possible meaning has to be
given to the expression ‘member’ as is appearing in
Sections 2 (1) (d), 2 (1) (e), Section 3 and other
provisions of the MCOC Act. - In view of above, we are of the view
that the reliance placed by the learned Counsel for
the applicants on the judgment of the Apex Court, in
the matter of State of Maharashtra & Ors. vs. Lalit
Nagpal & Anr., 2007 ALL SCR1078 (cited supra) is
wholly misplaced. The Apext Court, while dealing
with the case brought before it, particularly while
allowing the claim for quashing of the MCOCA
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prosecuting against Kapil Nagpal has reached to the
conclusion of involvement of the said applicant i.e.
Sachin has not been sought to be involved in
“continuing unlawful activity.’ This Court in the
matter of Govind Sakharam Ubhe, 2009 ALL MR
(Cri.) 1903 (cited supra) has already dealt with the
said issue as is reflected in paragraph 40 of the
judgment in the case of Govind Sakharam Ubhe, as is
reproduced herein above.”
21.
So far as the ratio laid down by the Hon’ble High Court in
the case of Govind Ubhe and followed in the cases of Sachin Ghaiwal
and Mujahid Pathan (cited Supra) is concerned, as stated above, the
Hon’ble High Court has held that requirement of more than one
chargesheet is qua the unlawful activities of the organized crime
syndicate and not qua individual member thereof. Therefore, the
contention raised by the learned advocate for the applicant cannot be
accepted.
22.
The Learned advocate for the applicant has submitted that
the documents placed on record indicate that there was dispute between
present applicant and the witness Vijay on account of partnership firm.
Upon perusal of the aforesaid documents it would reveal that some
proceedings were going on between applicant and said Vijay Sharma
before arbitrator and the Hon’ble High Court. It has been further
submitted that there is absolutely no evidence against the applicant
showing his involvement in the commission of the crime.
23.
In this regard the Learned CPP Mr. Desai has submitted
that, the documents placed on record goes to indicate that a conspiracy
was hatched to commit the murder of the deceased. According to him
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subsequent conduct of the applicant goes to suggest that he was
involved in the conspiracy.
24.
Aparently the allegations made against the present
applicant are based on the circumstantial evidence as it has been alleged
that the applicant has hatched a criminal conspiracy to commit the
murder of the deceased Munaf. The learned advocate for the intervernor
Mr.Pasbola has relied upon following judgments on the point of evidence
which is required to be considered for proving criminal conspiracy;
- State of Maharashtra Vs. Som Nath Thapa 1996 Supreme Court Cases
(Cri) 820 - Mohmed Amin @ Amin Choteli Rahim Miyan Shaih and another Vs.
Central Bureau of Investigation (2009) 3 Supreme Court Cases (Cri) 693 - R. Venkatkrishnan Vs. Central Bureau of Investigation (2009) 1
Supreme Court Cases (Cri) 164. - Vikram Singh and others Vs. State of Punjab (2010) 2 Supreme Court
Cases (Cri) 26. - Gulam Sarbar Vs. State of Bihar (2014) 2 Supreme Court Cases (Cri)
195 - State (NCT of Delh) Vs. Shiv Charan Bansal And others (2020) 1
Supreme Court Cases (Cri) 594.
25.
The sum and substance of the aforesaid judgments is that a
Criminal conspiracy is generally hatched in secrecy, and it is difficult, if
not
impossible,
to
obtain
direct
evidence.
The
manner
and
circumstances in which the offence has been committed, and the level of
involvement of the accused persons are relevant factors. Each
conspirator plays his separate part in one integrated and united effort to
achieve the common purpose. Each one is aware that he has a part to
play in the general conspiracy, to accomplish the common object.
Further a conspiracy is mostly proved by circumstantial evidence by
taking into account the cumulative effect of the circumstances indicating
the guilt of the accused, rather than adopting an approach by isolating
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the role played by each of the accused. The acts or conduct of the
parties must be conscious and clear enough to infer their concurrence as
to the common design and its execution. It would further reveal that the
most important ingredient in the offence of conspiracy is an agreement
between two or more persons to do an illegal act. The prosecution will
have to rely upon circumstantial evidence. The court must enquire
whether the persons are independently pursing the same unlawful
object or whether they have come together for the pursuit of the
unlawful object. The offence of conspiracy requires some kind of
physical manifestation of the agreement. However, the same need not be
proved, nor it is necessary to prove the actual words of communication.
It is sufficient if there is a tacit understanding between the conspirators
for the execution of the common illegal object.
In case of criminal
conspiracy, better evidence than acts and statements of co-conspirators
is hardly ever available.
26.
On the basis of the aforesaid law enunciated by the Hon’ble
Apex Court I am required to consider the material brought on record in
respect of criminal conspiracy.
27.
The most important circumstance upon which reliance has
been placed upon by the prosecution is the call recording in respect of
the exchange of calls that has taken place between the applicant and
witness-I and the other set of conversation that has taken place between
witness-I and the co-accused Naseem. The learned C.P.P. has invited my
attention towards the transcripts of the conversation which have been
placed on record alongwith the chargesheet.
28.
Upon perusal of the conversation between the witness and
: 19 :
the applicant dated 17.08.2020, time 9.49.00 hours it would reveal that
the applicant has made inquiry about the incident in question with the
witness-I. The conversation further goes to state that the applicant had
also made the inquiry with the witness about the existence of CCTV
camera near the spot of incident.
29.
Upon perusal of the conversation that had taken place
between accused Nasim and witness-I dated 22/8/2020 at 12.52 hours,
it would reveal that it contains following conversation;
I xxxx :
gk cksy cksy
Nasim :
ns[kks—— viuk rks dksbZ pht es ysuk nsuk gS gh ugh—fBd gS\
I xxxx
gk
Nasim
vkSj viuh ;s] vHkh ;s viuh dgkuh [kre gks pqdh
gS—- fBd gS\
I xxxx
gk
Nasim
vHkh ftldks lkeusokys dks tks djuk Fkk] mlus rks
cgksr cMh Iykfuax djds dj fn;k] tks Hkh djuk Fkk—–fBd gS\
I xxxx
gk
Nasim
vc rqedks lc—— vHkh ;s esjk nqljs dk nksLr dk
uacj gS—- ns[kks ;s dksbZ VsU’ku—- nks fefuV [kkyh ckr
djyks rks ckr cus ¼c<s½
I xxxx
gk
Nasim
bles ,slk gS dh —– geus NktsM ls dHkh—- lyhe
vkSj equkQ esa geus lyke nqvk rks cgksr vPNk Fkk—
: 20 :
fBd gS\ vc rqedks ekyqe gS] dgkW ls D;k fcxMk gS—fBd gS\
I xxxx
gk—- gk—- gk
Nasim
rks vHkh uk —- vkss vkneh] vius vkneh dks cksyks]
vHkh enr ugh gqbZ uk Hkk;\ rks —- eSa vHkh rd vius
uacj ls Qksu ugh fd;k mudks—- vc bu yksxks dks
Iykuj pkfg,] rks ge yksx] rks ge yksx] rks eqxhZ dk
cPpk gS uk
I xxxx
gk —– gk—
Nasim
ge yksx rks eqxhZ dk cPpk gS] esu Iykuj pkfg, rks
fQj—– esjs dks nsuk] esjs dks tkds nsuk iMsxk uk–D;k d# esjs dks —— vc esjs dks rks esjs vkneh dks
gh—- lsV djds fQV djk fn;s—-
30.
Further the conversation that had taken place between the
witness -I and the applicant dated 22/8/2020 at 8.51.36 hours it would
reveal that following conversation had taken place between the
applicant and the witness-I;
Ashok :
gq— dqN [kqyklk gqok\ let es vk;k dqN\
I xxxx :
D;k– [kqyklk ogh— tks vkidks crk;k u ml fnu–eryc ds oks cksy jgk D;k— mls lqikjh fn;k x;k gS–dh ufne dks lksuw us lqikjh fn;k
Ashok :
ysdhu ufne rks idMk x;k D;k \
I xxxx :
ufne rks idMk x;k u—\
Ashok :
mlus dcqy dj fy;k \
: 21 :
31.
Upon perusal of aforesaid conversation it would reveal that
the applicant had inquired with the witness whether Nadim has been
arrested by the police and when the witness -I had disclosed that he has
been arrested, the applicant had further shown anxiety to ask the
witness whether he had confessed.
32.
The conversation that had taken place between witness-I
and accused Nasim would speak that the following conversation had
taken place between them;
Nasim
D;w dh eS D;k cksy jgk gwW— eSus vHkh rd mudks
vius Qksu ls Qksu Hkh ugh fd;k] uk mudks dqN cksyk
gS— fBd gS\
I xxxx
gk—– gk
Nasim
mudk Hkh dqN ysuk nsuk ugh gS] rks viuk Hkh dksbZ ysuk
nsuk Fkk gh ugh bezkuHkkbZ—
I xxxx
gk—– gk
Nasim
ns[kks ;s lc djds] viqu fcoh cPps okys yksx gS—vius dks ;s lc djds ckr gh ugh gksrk gS] exj
vHkh—- vHkh rks oks lc ckr djds eryc ugh gS uk\
I xxxx
gk—- gk
Nasim
nks efgus dke oke dj fn,]—] lc ltk fn, dke] rks
vc HkkbZ gekjs ikl dksbZ— bles—- dksVZ ofdy
yxsxk— , dsl ls fudyus—
I xxxx
vkW\
Nasim
bles ofdy cfdy dks yxsxk lc iSlk– fBd gS\
I xxxx
gk—-
: 22 :
Nasim
33.
VkSj oks iSls dk Hkh enr ugh djsxs vius dks\ — fBd
gS\ vki.kk D;k djrs vkSj D;k ugh djrs] rqEgkjs ls
Nqik rks ugh gS uk\
Similarly the conversation which had taken place between
the applicant and the witness-I dated 22/8/2020, 19.14.34 hours would
state that following conversation had taken place between them;
I xxxx :
gk ePNkeh nqxÏe lkgc— oks uk— lqcg ls nks rhu
pkj ckj uk mldk Qksu vk x;k] fdldk\ —- oks—ufle dk vkSj is’dkj [kku dk
Ashok :
D;k\
I xxxx
Ckksys] vjs ;kj gekjh dqN enr djks]
cksyk ;kj ;s— ;s dkSulh ckr gks x;h] cksys oks—–
Ashok
vki.k rks ‘kq# ls cksys Fks dh ,slk dqN dke er djks
—– ¼vLi”V vkokt½
I xxxx
vkW\
Ashok
I xxxx
D;k cksy jgs gS—– gk vkokt vk jgh gS
Ashok
vjs HkkbZ vki.k rks ‘kq# ls gh cksy jgs Fks uk dh] ,slk
dksbZ dke djuk er dh ftlls eqlhcr [kMh gks tk,A
vki.k rks Ms ou ls gh ckrys Fks uk\ [kkyh rqedks ;s
cksyuk gS—- dksbZ ugh pkfg,] , Hkh ugh pkfg,] rqe Hkh
ugh pkfg,] u;k pkfg,
I xxxx
gk
Ashok
gk—- dk;ds fy, >a>V ,] mYVs fl/ks /kans djrk D;w
gS\ vHkh D;k enr djsaxs bles] ,sls rks bles enr
eS
: 23 :
djds gedks D;k ejuk gS D;k\
I xxxx
gk———- dks—– dks—- dksbZ ejs D;k lkyk\
Ashok
fQj\
I xxxx
rks oks ckj ckj ckj ckj ckj ckj ckj ckj ogh—- vjs
ge yksx us ugh fd;s gS] vjs ,slk gS—– eS oks
Ashok
vkidk cjkcj gS
I xxxx
eS —- eS oks Hksuw D;k vkidks\
Ashok
vkW\
I xxxx
oks Hkstw\
Ashok
D;k\
I xxxx
oks mlus tks ckr fd;k jsdkWfMZax Hkstw\
Ashok
ugh ugh —- oks jsdkWfMZax —– vHkh viuk rks ,d gh
fpt ls jsguk gS] Qkyrw fdlh dk Qksu —- esjs dks rks
brus Qksu vk jgs gS uk vuksu ¼Unknown½ uacj ls\ rks
eSus Qksu gh ¼Divert½ Mk;oVZ djds j[k fn;k] fQj
egkohj us crk;k esjd
s ks] cksys bezku dk Qksu vk;k Fkk—
I xxxx
gk
Ashok
rks eS cksyk bezku dks cksy nsuk eS vkjke ls Qksu d#axk]
vkSj vHkh eS nks fnu Qksu can j[kwaxk] bezku
Ashok
gk — csdkj es bu fptks dk /kank djrs gS] ;gkW ukS
O;kikj [kkus fius ds okans gS
I xxxx
gk c— ;gkW [kqn viuh ijs’kkuh es vkneh] gtkj nks
gtkj ?kj is ugh ns ikrk gS
: 24 :
Ashok
vjs 2&2 ikp ikp gtkj] fnekx c< tk;sxk rks o—–yk[k&ipkl gtkj ds okans vkSj ;s—– lqikjh ns jgs gS—
I xxxx
fQj ;s— brus okans py jgs gS vkSj vkiu Hkq[ks ej jgs
gS vkSj budks—-
Ashok
D;k cksy jgs] D;k cksy jgs gks\
I xxxx
vki.k —– gtkj nks gtkj ds okans py jgs gS vius
Ashok
vjs ;s cksyks uk] vius lkeus —- dHkh yxrk gS eqlhcr
es vk tk,axs dHkh bykt ds fy, yx x;s rks
34.
The Learned advocate for the applicant Mr. Nikam has
invited my attention to the conversation that had taken place between
applicant and witness-I and submitted that the applicant had informed
to witness-I that since beginning he was saying that they should not do
any work which would create problem and that he was saying the same
thing from day one and that witness-I would be required to say the same
thing and submitted that even if the contention raised in the
conversation is accepted in that case also it would absolve the applicant
from the conspiracy. I am not in agreement with the submissions made
by Mr. Nikam.
35.
Upon perusal of the aforesaid conversation it would reveal
that the subsequent conduct on the part of the applicant was such that
he was interested to get knowledge about the repercussion of the
incident in question, after it had taken place. Had it been the case that
the applicant was not having concerned with the aforesaid murder, he
had no reason to make call to the witness and to make an attempt to
: 25 :
gain information about the incident in question. Not only this the
conversation on which the Learned advocate for the applicant had relied
upon would go to suggest that the applicant was well aware about the
conspiracy which was hatched. Though the applicant has disclosed that
from the inception of the conspiracy he had asked the conspirators that
they should not do any work which would create trouble, however it is
found that the same has been disclosed after around 5 days of the
incident. It is but natural on the part of one of the conspirators to get
away from the conspiracy, after an effect has been given to it. Therefore,
I do not find merit in the submissions advanced by the Learned advocate
for the applicant that there is no evidence to suggest that the applicant
was involved in the conspiracy.
36.
In addition to this there are statements of the witnesses
who have categorically stated before the investigation officer that
deceased Abdul Munaf was having leading role in holding meeting with
the residence of the project. Further he was financially sound to give
financial Assistance for completion of the project, which has caused fear
in the mind of the applicant and his associates co-accused Peshkar and
realized that he may loose the project to deceased Munaf. Therefore,
according to the witnesses the applicant was interested in removal of
deceased Abdul Munaf from the project.
37.
In this regard Learned advocate for the applicant has
submitted that by the entry of Munaf in the said project share of the copartners was diminished and therefore it would not have adversely
affected interest of the applicant in the said project and therefore he
would submit that the case set out by the prosecution on the point of
: 26 :
motive fails. In this regard upon perusal of the statements of witnesses it
would reveal that the applicant was not happy with the entry of
deceased Munaf in the said project. At this juncture there is no
hesitation to rely upon the statement made by the witnesses.
38.
Thus upon perusal of the material collected during
investigation it would prima facie reveal that the applicant intentionally
had entered into an agreement with the residence of said area but he
could not carry out redevelopment work and therefore witness Vijay and
Salim were introduced as partner in M/s. Email Ashok Enterprises.
Further deceased Munaf was introduced in the said project as he was
having financial capacity. At the time of introducing deceased Munaf in
the said project a meeting was called, but the applicant did not attend it.
The material placed on record further goes to suggest that in the year
2019 accused Nos.5 and 6 had organized a Iftar Party at Juned Nagar
and that at the time of said party the applicant had disclosed that
accused Peshkar and Riyaz would carry out the redevelopment work.
Later on deceased Munaf had held a meeting and assured to the
residents that he would complete the entire project. It has come on
record that the involvement of Munaf in the said project supported by
this financial status caused fear in the mind of the applicant and Peshkar
that they may lose the project and therefore according to the
prosecution the conspiracy was hatched to commit murder of Munaf.
39.
No doubt, the learned advocate for the applicant has tried
to bring to the notice of this court certain contradictions and
discrepancies in the statements of the witnesses. However, it is settled
principle of law that while considering bail application the court is not
required to look in to the contradictions and discrepancies in the
: 27 :
statements of the witnesses either they are recorded under Section 161
or 164 of the Cr.P.Code. At this stage the court is only required to prima
facie find out whether the allegation made against the applicant make
out a prima facie case. Thus, upon perusal of the statements of the
witnesses and the material placed on record this court has every reason
to believe that the applicant is involved in the criminal conspiracy for
committing murder of deceased Munaf.
40.
The Learned C.P.P. has invited my attention to the
submission of Mahavir, the son of applicant. In this statement it has
come on record that after the murder of Munaf, accused No.6 Nasim
had made call to said Mahavir and told him that he was in need of
money. His statement further proceeds to state that when the witness
Mahavir has expressed his inability to pay such amount, accused No.6
had disclosed that he would call again and that he will be required to
pay the amount at any cost. The statement of said Mahavir further states
that thereafter also accused Nasim had made a phone call to him and
made demand of money. This circumstance also goes to show the
involvement of the applicant in the conspiracy. Had it been the case that
the applicant had not concerned with the murder of deceased Munaf, in
that case accused Nasim would not have made call and made demand
money from the son of applicant. This circumstance goes to prima facie
establish that the applicant had agreed to provide finance to give effect
to the conspiracy to commit murder of the deceased.
41.
In the background of aforesaid discussion, I conclude that
since there is prima facie material available on record against the
applicant showing his involvement, the applicant is not entitled to be
released on bail. Up shot of above discussion, leads me to pass the
: 28 :
following order.
ORDER
Bail Application No. 1202 of 2020 stands rejected.
Digitally signed by
Dinesh Ekanath
Kothalikar
Date: 2021.01.18
15:16:39 +0530
Date : 15.01.2021.
Dictated on : 15.01.2021.
Typed on : 16.01.2021.
Signed on : 16.01.2021.
(Dinesh E. Kothalikar)
Special Judge, MCOCA
City Civil and Sessions Court,
For Greater Bombay
: 29 :
“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
NAME OF STENOGRAPHER
: 18.01.2021 AT 03.14 pm
:Mrs. Prajakta K. More
NAME OF THE JUDGE
HHJ SHRI.D.E.KOTHALIKAR
(C.R.No.25)
Date of Pronouncement of Order
15/01/2021
Order signed by the P.O. On
15/01/2021
Order uploaded on
18/01/2021