Bombay High Court
Vicky Gendalal Karjale vs The State Of Maharashtra on 6 December, 2021
Bench: C.V. Bhadang
12-ba-1200-19
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 1200 OF 2019
Vicky Gendalal Karjale ..Applicant
Vs.
The State of Maharashtra ..Respondent
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Mr. Aniket Nikam i/b. Mr. Vivek N. Arote, for the Applicant.
Mr. R. M. Pethe, for the Respondent / State.
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CORAM : C.V. BHADANG, J.
DATE : 6 DECEMBER 2021
P.C.
. This is an Application for bail. The Applicant is Accused
No.3. The Applicant alongwith four others, has been chargesheeted
for the offence punishable under Section 143, 144, 147, 148, 149,
307 and 323 of IPC, Section 4 r/w. Section 25 of the Arms Act and
Section 37(1) r/w. Section 135 of the Maharashtra Police Act and
Section 3(1)(ii), 3(2) and 3(4) of the Maharashtra Control of
Organised Crime Act, 1999 ('MCOC Act', for short).
2. The prosecution case is that the Applicant and the co-accused
are members of an organised crime syndicate of which the Accused
No.1 Mahesh Bhagat is the leader. According to the prosecution
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there is an interse rivalry between the members of the syndicate over
supremacy in the crime syndicate. The incident in question is
alleged to have happened on 12 October 2017 at about 11.00 p.m.
near Warje Bridge at Pune, in which the Complainant Vishal Shirsat
alongwith injured / victim Raju Anpur were assaulted by the
Applicant and the co-accused by a sharp weapon. The Applicant is
alleged to have assaulted the victim and the Complainant by a sickle
like weapon while the Accused No.1 Mahesh Bhagat, is alleged to
have assaulted the victim by a bottle of beer. The Complainant and
the victim were also assaulted by kicks and fist blows.
3. On the basis of the complaint lodged by Vishal Shirsat, an
offence at Crime No.381/2017 was registered with Police Station
Warje Malwadi. It appears that a proposal for grant of sanction was
sent to the Competent Authority and the Competent Authority by
an order dated 4 April 2018 has granted sanction under Section
23(2) of the MCOC Act. In so far as the present Applicant is
concerned, he was arrested on 14 Feberuary 2018. Accused No.5
Aditya Marane is stated to be absconding.
4. The learned Special Judge has rejected the Application for bail
of the Applicant. It is a matter of record that co-accused Mahesh
Bhagat and Shubham Hanamghar were released on bail by the
learned Sessions Judge, prior to the invocation of the MCOC Act. It
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is further a matter of record that the prosecution has filed an
Application for cancellation of bail granted to the co-accused which
Applications are pending before the learned Sessions Judge.
5. I have heard Mr. Nikam, the learned counsel for the Applicant
and the learned APP for the Respondent / State. Perused record.
6. It is submitted by the learned counsel for the Applicant that
the prosecution evidence does not prima facie indicate the
involvement of the Applicant in the offence under Section 307 of
the IPC. The learned counsel pointed out that as per the statement
of the victim Raju Anpur, the assailants were looking for Vicky
Anpur who is the brother of Raju Anpur. He submitted that even
going by the statement of Raju Anpur, the present Applicant asked
him as to where his brother Vicky Anpur is. The learned counsel
therefore submitted that the Applicant had no intention to assault
the victim or the Complainant. The learned counsel has thereafter
referred to the medical certificate in order to submit that none of the
injuries sustained are attributable to a sharp weapon such as a sickle,
and in any event, injuries are not shown to be on vital part and
cannot be said to be life threatening. He therefore submitted that
prima facie there is no case of offence under Section 307 of IPC
made out.
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7. In so far as the invocation of the provisions of the MCOC Act
are concerned, it is submitted that the confessional statement of the
Applicant recorded by the ACP does not bear the certificate as
required by Rule 3(6) of the Maharashtra Control of Organised
Crime Rules, 1999 (1999 Rules) and therefore the said statement
cannot be taken into consideration or used against the Applicant.
Reliance for this purpose is placed on the order passed by this Court
in Mukesh Kantilal Chavan Vs. The State of Maharashtra 1. It is
submitted that the previous offences which are registered against the
Applicant are not of a similar nature and there is no commonality
between the offences registered and therefore, prima facie, the
embargo placed on the grant of bail by the provisions of MCOC Act,
cannot be invited. For this purpose, reliance is placed on the order
passed by this Court in Bhupendra @ Golu s/o. Suryakant Borkar
Vs. State of Maharashtra,(through P.S.O. Ajni, Nagpur) 2. Lastly,
reliance is placed on the decision of the Supreme Court in Ashim @
Asim Kumar Haranath Bhattacharya Vs. National Investigating
Agency 3, in order to submit that the Accused cannot be indefinitely
detained for long particularly when, there is no possibility of the
trial being concluded in near future.
8. Learned APP has submitted that there is a prima facie case
made out against the Applicant as there is direct evidence of the
1in Criminal Bail Application No.2816/2019 decided on 5 April 2021
2in Criminal Application (BA) No.608/2016 decided on 19 August 2016 Nagpur Bench.
3in 2021 SCC ONLINE SC 1156.
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Complainant and the victim, both of whom are injured eye witnesses
about assault by the Applicant with a sharp weapon. It is submitted
that the injuries are serious and life threatening and there are
circumstances to infer that there was an intention to commit murder
of the victim. It is submitted that the reliance placed on the various
judgments is misplaced as they are distinguishable on facts.
9. I have carefully considered the rival circumstances and the
submissions made. Prima facie, it appears that the Complainant
Vishal Shirsat and the victim Raju Anpur both of whom are injured
in the incident have stated about an assault by sharp weapon like a
sickle on the head and other parts of the victim Raju Anpur. In the
said incident, the Complainant was also assaulted and had sustained
injuries.
10. The medical report of the victim Raju Anpur shows various
injuries as under -
-CLW over frontal bone region of 5x1 cm with fracture of
outer table of bone
-CLW over posterior aspect of right ear extending up to pinna
of 3x1 cm
-CLW over right cheek 2x1 cm
-CLW over right shoulder posterior aspect - 2 CLW of 3x1
cm
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-CLW over right medial wrist 1x1 cm
-CLW over right Lower Limb 2x1 cm
-CLW over right parietal bone over 3x1 cm
-Bilateral anterior wall frontal sinus fracture,
-right facial nerve canal fracture in vertical segment extending
upto right temporal bone.
-Right shoulder acromion fracture and lateral end of clavicle
fracture
-Had bleeding from nose and rt ear +
-CLW suturing was done under LA
11. Prima facie, the contention that the Contused Lacerated
Wound (CLW) cannot be caused by sharp weapon, cannot be
accepted in this case in view of the following opinion of the Medical
Officer, Dr. Shridhar Kanetkar.
"Such injuries are commonly caused by sharp weapons
but can also be caused by blunt object, especially if hit
against a bone."
12. At least, prima facie, the injuries are shown to be sustained on
the frontal bone and the posterior aspect of right ear. There is a
recovery of the clothes and the weapon at the instance of the present
Applicant as shown in the Memorandum Panchanama dated 13
October 2017 under Section 27 of the Evidence Act. Thus, in my
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considered view, apart from the invocation of the MCOC Act, there
is prima facie case about involvement of the Applicant in the
offence under Section 307 of IPC and offence of rioting etc.
13. Coming to the submissions based on the MCOC Act, it is true
that the copy of confessional statement produced during the course
of hearing, does not bear the certificate as required by Rule 3(6) of
the 1999 Rules. However, reliance placed on the decision on the
order passed by this Court in Mukesh Kantilal Chavan (supra) to
my mind is misplaced for the reason that in that case the only
material collected against the Applicant was in the form of the
confessional statement of co-accused Ashok Bansode and Mohsin
Ayub Pathan. In so far as accused Mohsin Ayub Pathan, he had
retracted the statement before the Chief Judicial Magistrate Pune
and in respect of the statement of Ashok Bansode, this Court found
that the certificate as required by Rule 3(6) of the 1999 Rules was
not appended.
This Court in para 10 of the order has observed that "even that
aspect is a matter of trial, no advantage can be drawn at this stage".
However, this Court considering the fact that the only evidence was
in the form of confessional statement by co-accused, unlike in the
present, case directed release of the Applicant Mukesh Chavan on
bail.
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14. In Bhupendra Borkar (supra), this Court on facts found that
there was no prima facie case as the entry taken in the wireless
register had disclosed that the shots were fired in the air and not at
the Complainant. This Court found the evidence of the prosecution
to be "prima facie disappointing". It is true that under the provisions
of MCOC Act, the antecedents / offences have to be of similar
nature and bearing some commonality so as to lead to an inference
and possibility of the Applicant indulging into a similar offence, if
released on bail as held by the Supreme Court in the case of
Ranjitsingh Brahmajeetsing Sharma Vs. State of Maharashtra1.
15. In the case of Bhupendra Borkar, this Court has found that out
of the five previous offences, none of the offence was under Section
307 and except one offence which was under Section 364 of IPC,
other offences were of a minor nature.
16. Coming to the present case, the reply filed by the prosecution
shows that there are following offences registered against the
Applicant, apart from the present offence.
Sr. Police Station C.R.NO. Sections
No.
1 Sinhgad Road Police 131/2014 392, 34 IPC u/secs.
Station Pune 4, 25 Arms Act
1 (2005) 5 SCC 294
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2 Bharati Vidyapith Police 3083/2015 7, 3(25) Arms Act
Station Pune
3 Warje Malwadi Police 223/2015 143, 147, 148, 323,
Station Pune 504, 427 IPC
4 Warje Malwadi Police 78/2016 143, 147, 148, 149,
Station Pune 336, 504, 427 IPC
5 Warje Malwadi Police 109/2016 143, 144, 145, 147,
Station Pune 427 IPC
Prime facie, it can be seen that at least three offences are of a
similar nature, that is of rioting, which is also an offence in this case.
17. In Asim Bhattacharya, the Applicant / Accused was facing
prosecution under the provisions of IPC, Arms Act, Explosive
Substances Act and the Unlawful Activities (Prevention) Act, 1967.
There were in all fourteen accused. The Applicant was arrested in
the year 2012. The Supreme Court found that the chargesheet was
filed on 12 April 2012 and the charge was framed only on 20 June
2019. The prosecution had cited 298 witnesses out of which it was
stated that the prosecution proposes to examine 100 to 105
witnesses. The Supreme Court also found that the trial was at the
stage of examination of P.W.1 who was under cross examination for a
considerable period of time. The Supreme Court also found that
there was only one Special Court which was holding trial once in
every month. These were the circumstances in which the Hon'ble
Supreme Court found that the Applicant was entitled to be released
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on bail. In my considered view, the facts in the present case are
distinguishable. Considering the fact that there is a prima facie
evidence in the form of statement of injured witnesses and the
Complainant and the recovery of clothes and the weapon at the
instance of the Applicant and the antecedents, discretion cannot be
exercised in favour of the Applicant. The Application is accordingly
dismissed.
The observations herein are of a prima facie nature and for the
limited purpose of deciding the Application for bail. The learned
trial Court shall not be influenced by the same at the trial.
C.V. BHADANG, J.
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