Vijendra Molchand Kuril vs The State Of Maharashtra, P.S. ...
2017 Latest Caselaw 7013 Bom

Judgment

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
           NAGPUR BENCH, NAGPUR

           CRIMINAL APPLICATION (APL) NO.7 OF 2016

Vijendra Molchand Kuril,
Aged about 35 years, Occupation Labour,
R/o Mochipura, Akola.                                     ..... Applicant.

                                 ::   VERSUS   ::

1.  The State of Maharashtra,
Police Station, Akot Fail, Akola.

2.  Special Inspector General of Police,
Amravati Range, Amravati.                       ..... Non-applicants.

================================================================
           Shri S.V. Sirpurkar, Counsel with Ms Ankita Sarkar, Adv. for 
           the applicant.
           Shri T.A. Mirza with Shri I.J. Damle, Additional Public 
           Prosecutors for the State.
================================================================


                                CORAM : V.M. DESHPANDE, J.

                                DATE    : SEPTEMBER 12, 2017.

ORAL JUDGMENT

1. Rule. Rule is made returnable forthwith. Heard

finally by consent of learned counsel Shri S.V. Sirpurkar with

Ms Ankita Sarkar for the applicant and learned Additional

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Public Prosecutors Shri T.A. Mirza with Shri I.J. Damle for

the State.

2. The inherent jurisdiction of this Court under

Section 482 of the Code of Criminal Procedure, 1973 is

invoked by the applicant to set up a challenge to order passed

by learned Special Judge (MCOCA), Amravati dated 30.11.2015

in Crime No.83 of 2015 by which learned Special Judge

allowed application of the prosecution dated 26.11.2015 and

thereby cancelled the bail granted in favour of the present

applicant in Crime No.83 of 2015 registered with Akot File

Police Station, Akola for the offences punishable under

Sections 302, 384, 387, and 120B of the Indian Penal Code. At

the same time, application dated 18.11.2015 was rejected by

learned Special Judge which was filed on behalf of the

prosecution seeking permission to arrest the applicant.

However, the prosecution was given liberty to arrest the

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applicant for the offences punishable under Sections 3 and 4

of the Maharashtra Control of Organized Crime Act, 1999 (for

short, "the MCOC Act").

3. According to learned counsel Shri S.V. Sirpurkar

for the applicant, the order passed by learned Special Judge

(MCOCA), Amravati is unjust inasmuch as, according to him,

though ample opportunity was available to the prosecuting

agency, the provisions of the MCOC Act were not applied and

thereby allowed crucial time to pass away. In that view of the

matter, according to him, the law laid down by this Court in

the case of Sarang Arvind Goswamy ..vs.. State of

Maharashtra, reported at 2005(3) Mh.L.J. 774 cannot be made

applicable. He, therefore, submits that the order impugned is

required to be set aside.

4. Per contra, it is the submission on behalf of the

prosecution that the law laid down by this Court in the case

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cited supra applies to the present case with its full force.

According to learned Additional Public Prosecutor, as soon as

sanction to prosecute the applicant, under the stringent

provisions of the MCOC Act was received, the same were

applied. He submits that the order passed by learned Special

Judge is passed after considering the provisions of the MCOC

Act in its correct perspective and, therefore, he prays for

dismissal of the application.

5. To appreciate the rival contentions, it would be

useful to advert to basic facts giving rise to Crime No.83 of

2015.

6. One Rameshwar Pawar set the criminal law into

motion by lodging his report with Akot File Police Station,

Akola on 5.7.2015.

7. As per the first information report, the first

informant works as an agricultural labour in agricultural

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fields of Dilip Bisen, Prakash Bisen, and Ramsingh Bisen

since last 10 years. Therefore, he is fully acquainted with his

3 employers. As per the first information report, Prakash

Bisen is having an agricultural field situated on Akot-Akola

Road. Elias Khan and Salam Khan Karim Khan were making

attempt to grab the said agricultural land of Prakash Bisen by

adopting arm-twisting tactics and by using force. Even, Elias

Khan raised an unauthorized construction in the nature of

'hut' also and in the said unauthorized construction, Elias

Khan and Salam Khan Karim Khan used to sit their along

with others having criminal records. In view of these

activities, field owner Prakash Bisen was frightened.

8. According to the first information report, prior to

two days only, Salam Khan Karim Khan, Elias Khan, Rizwan,

and Viju (present applicant) extended threat to landowner

Prakash Bisen that if Rs.10.00 lacs are not given to them, they

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will occupy and take possession of 28 Acres of land of Prakash

Bisen. As per the first information report, Prakash Bisen

refused to oblige such threat.

The first information report further recites that on

the day of the occurrence, i.e. on 5.7.2015 at about 5:00 p.m.,

when first informant Rameshwar Pawar and Prakash Bisen

were sitting under a 'Neem-Tree' adjacent to road in the

agricultural field of Dilip Bisen, a white colour four wheeler

came and driver of the said, all of a sudden, turned the said

vehicle left side and gave a forceful dash to Prakash Bisen,

resulting into falling of Prakash Bisen from chair on which he

was sitting and he came under the said vehicle. Thereafter,

Salam Khan Karim Khan, Elias Khan, and Viju (present

applicant), who were sitting on rear seat of the motor-vehicle,

alighted from the vehicle, dragged Prakash Bisen from

beneath of the motor-vehicle, and put away . Due to this, first

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informant Rameshwar Pawar ran away towards the

agricultural field. Thereafter Salam Khan Karim Khan, Elias

Khan, and Viju (present applicant) left the place in the

vehicle.

9. Since the report lodged by Rameshwar Pawar was

disclosing cognizable offence, a crime was registered with

Akot File Police Station, Akola for the offences punishable

under Sections 302, 384, 387, and 120B of the Indian Penal

Code. The name of the present applicant was specifically

appearing in the first information report in connection with

demand for extortion and also at the time when Prakash

Bisen was run over by the vehicle, that time he was one of

occupants in the said vehicle. The applicant was arrested on

6.7.2015. After some days, he was taken in the police custody

remand and, thereafter, he was taken in the magisterial

custody remand.

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10. The applicant was arrested for the offences

punishable under the Indian Penal Code. Looking to the

nature of accusations made against the present applicant and

the offences which were registered against the applicant, the

prosecution was under the duty to file final report within a

period of 90 days from the date of arrest of the applicant.

However, till lapse of 103 days from the date of arrest, no final

report was filed before the Court of law. The applicant moved

an application under Sections 167(2) and 439 of the Code of

Criminal Procedure, 1973 for grant of bail before learned

Special Judge under the MCOC Act, Amravati.

11. It was pointed out before learned Special Judge by

moving the application, which was filed on 17.10.2015, that

against the applicant the stringent provisions of the MCOC

Act are not applied and the applicant is accused of

committing offences punishable under the Indian Penal Code

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and in spite of lapse of 103 days, the charge-sheet against him

is not filed.

12. The said application was contested by the

prosecution on the ground that the prosecution has already

applied the provisions of the MCOC Act against the co-

accused. Therefore, outer limit to file the charge-sheet in the

crime is 180 days and, therefore, the said application was

opposed.

13. On 17.10.2015, learned Special Judge allowed the

application filed on behalf of the present applicant by holding

that merely because the provisions of the MCOC Act are

applied against the co-accused, that is not sufficient to deny

default bail in favour of the applicant since the applicant was

charged only for the offences committed under the Indian

Penal Code.

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14. The applicant, thereafter, availed of the bail and

was released from jail.

15. On 18.11.2015 an application was moved by the

prosecution to cause arrest of the present applicant.

According to the said application, after releasing the

applicant on default bail, the Inspector General of Police,

Amravati Range, Amravati granted sanction on 9.11.2015 for

applying Sections 3 and 4 of the MCOC Act.

16. Pending the said application, on 26.11.2015

another application was filed by the prosecution for

cancellation of the bail granted in favour of the present

applicant on 17.10.2015. As per the said application, co-

accused Shaikh Kayyum Shaikh Karim gave his confessional

statement which was recorded by the authority mentioned in

Section 18 of the MCOC Act. In the said confessional

statement, he has attributed specific role against the present

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applicant for taking forceful possession of the agricultural

field of deceased Prakash Bisen. His confessional statement

also states that on 5.7.2015 a meeting was held in the house of

a gang leader Abdul Salam Khan Abdul Karim Khan in respect

of the agricultural field and in that meeting also the applicant

was present.

17. The applicant was also present in the car which

gave a murderous dash to deceased Prakash Bisen. It is also

stated in the said application that Call Data Records (CDRs)

of the mobile cellphone of the applicant are now obtained

which show that the applicant was in touch with the gang

leader from 15.6.2015 till the date of the occurrence. It is also

stated in the application that witness one Dhnyaneshwar

Omkar Pahurkar has stated in his statement that prior to 15

days of the occurrence, there was a meeting in one Jayaswal

Wine Bar with deceased Prakash Bisen by the gang leader and

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other members of the syndicate in which the applicant was

also present. Further, from the CDRs it is clear that the

present applicant was in touch even with deceased on his

cellphone.

18. According to the application, during the course of

the investigation, thus it is clear that the applicant is an

active member of this syndicate of which Abdul Salam Khan

Abdul Karim Khan is its leader. A proposal was submitted to

the competent authority for applying the provisions of the

MCOC Act and the competent authority granted sanction on

9.11.2015 and accordingly the provisions of Sections 3 and 4 of

the MCOC Act were added as against the present applicant in

Crime No.83 of 2015 and, therefore, a prayer was made for

cancellation of the bail granted in favour of the applicant.

19. After hearing learned counsel for the applicant

and learned Additional Public Prosecutor for the State, the

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issue that once the bail is granted for the offences punishable

under the "ordinary law" i.e. under the Indian Penal Code and

subsequently, the provisions of Sections 3 and 4 of the MCOC

Act are added and applied, whether the bail earlier granted

can be cancelled or not, is not in res integra in view of the

law laid down by this Court in the case of Sarang Arvind

Goswamy cited supra.

20. In Sarang Arvind Goswamy's case, accused

Sarang was arrested in connection with Crime No.212 of 2004

for the offences punishable under the Indian Penal Code.

Subsequently, he was released on bail. Subsequent to his

release on bail, the provisions of special enactment, namely

MCOC Act, were invoked against said Sarang. After such

invocation, an application was moved by the prosecution for

cancellation of bail on the assertion that as the provisions of

special enactment have been applied, earlier bail cannot be

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continued and the same is required to be cancelled in view of

the stringent provisions of Section 21 of the MCOC Act.

21. The Sessions Court at Pune cancelled the bail

granted earlier in favour of accused Sarang that gave rise

filing of Criminal Application No.2129 of 2005 by Sarang

before this Court and this Court, after considering the entire

law on the said issue, found that the bail, which was granted

earlier in favour of applicant Sarang, was only in respect of

the offences punishable under the relevant Sections of the

Indian Penal Code. However, subsequently, the stringent

provisions of the MCOC Act were applied. Therefore, the

order was upheld cancelling the bail of Sarang.

22. In the present case also, at the time when the

applicant was released on bail under Section 167(2) of the

Code of Criminal Procedure, 1973, the stringent provisions of

special enactment i.e. MCOC Act were not applied against the

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present applicant only. Therefore, learned Judge of the Court

below has rightly granted default bail since the final report

was not filed within 90 days.

23. However, the investigation was continued in view

of invocation of the provisions of the MCOC Act against the

co-accused persons and during the investigation, the role of

the applicant was also revealed by which the provisions of the

MCOC Act could be invoked and accordingly the sanction was

sought and the same was granted by the competent authority.

24. In my view, the prosecution has rightly applied for

cancellation of bail by approaching to the Court by moving an

application dated 26.11.2015 on assertion that the provisions

of the MCOC Act have been applied against the present

applicant. As a consequence of which, the bail granted in

favour of the applicant, relating to the offences under the

Indian Penal Code, will be of no avail. In view of invocation of

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the provisions of the special enactment, the prosecution was

having a right to take the applicant into custody in relation to

the newly registered offences under the MCOC Act and as

observed by this Court in Sarang Arvind Goswamy's case cited

supra, the applicant can be released on bail only if the

applicant was to satisfy rigours of the provisions of the special

enactment.

25. In view of the provisions of the MCOC Act, being

made against the present applicant, in my view learned Judge

of the Court below has not committed any wrong in cancelling

the bail. Consequently, the present application is required to

be dismissed and accordingly it is dismissed and the interim

orders granted by this Court on 8.1.2016 shall cease to operate

immediately. The applicant is directed to surrender before

the law immediately. Else, the investigating officer is free to

cause arrest of the applicant in the said crime.

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26. The criminal application is dismissed and the Rule

is discharged.

JUDGE

!! BRW !!

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