Girish Kumaran Nayar vs The State Of Maharashtra
2021 Latest Caselaw 3117 Bom

                                                                    13-BA-2241-2018.odt
Shambhavi
N. Shivgan
Digitally signed by    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Shambhavi N.
Shivgan
                            CRIMINAL APPELLATE JURISDICTION
Date: 2021.02.17
14:57:21 +0530                   BAIL APPLICATION NO.2241 OF 2018

                      Shri Girish Kumaran Nayar,
                      Age: 31 years, Occ: Business,
                      R/t:Room No.A-404, K.M.C. Park,
                      Behind Ganesh Mandir,
                      Veer Savarkar Road,
                      Virar (E),
                      Tal: Vasai, Dist: Palghar
                      (At present Mumbai Central
                      Prison, Mumbai)                         ... Applicant

                                Vs

                      The State of Maharashtra               ... Respondent
                                                    ...

                      Mr. Abhaykumar Apte for the Applicant.

                      Mr. Yogesh Dabke, APP for the Respondent-State.

                      API Mr. Dalvi and API Mr. P.N.Kokare attached to Virar
                      Police Station present.

                                CORAM : SANDEEP K. SHINDE J.
                                RESERVED ON : 3RD FEBRUARY, 2021.
                                PRONOUNCED ON: 17TH FEBRUARY, 2021.

                      JUDGMENT:

Applicant is one of the four accused in Crime

No.574 of 2016 in respect of ofences punishable under

Shivgan 1/19 13-BA-2241-2018.odt

Sections 115 read with Sections 302, 120B of the Indian

Penal Code, 1860, Sections 4 and 25 of the Arms Act and

Section 37(1) of the Bombay Police Act, apart from ofences

under Sections 3(1)(ii), 3(2) and 3(4) of the Maharashtra

Control of Organised Crime Act, 1999 ('MCOC' for short). By

this application, the applicant seeks bail.

2 Heard Mr. Abhaykumar Apte, learned counsel for

the applicant and Mr. Dabke, learned Additional Public

Prosecutor for the State. With the assistance of the learned

counsel, I have gone through the bail application,

annexures thereto and the relevant parts of the charge-

sheet. I have also been taken through the afdavit fled by

Mr. Jayant Bajbale, Sub Divisional Police Ofcer, Virar

Division, District: Palghar for opposing the grant of bail.

Prosecution case has been described in the proforma of the

charge-sheet.

3          Briefly stated, prosecution's case is that on 16 th


Shivgan                                                       2/19
                                               13-BA-2241-2018.odt

October, 2016, constable Mohite attached to Virar Police

Station received information from one of the informants

that four unknown persons had assembled/gathered at and

near Ganpati Mandir in Innova Car No.MH-04 EH 7725, with

dangerous weapons and they were planning to eliminate a

person named 'Gabari', a nick name of, Arun Hira Patil, a

relative of the local corporator. On this tip-of, Mohite,

proceeded to Ganpati Mandir with two constables. In order

to conceal their identity, they remained passive in plain

clothes and heard the conversation amongst them.

Constable, Shankar Shinde, who accompanied Mohite,

knew, Girish Nair, one of the four accused and eventually

Girish Nair applicant before this Court. Constable Mohite,

heard that four persons were outlined the plan as to how

Gabari was to be killed. But as it appears one of those

accused persons noted that someone was keeping watch

on them, all four accused persons fled the spot, leaving

behind the car as it is. Though team of constables chased

but they could not nab them. Whereafter the team of

Shivgan 3/19 13-BA-2241-2018.odt

constables made eforts to open up door of the car but

found, it was locked. Constables peeped into the car from

the glass window and had noticed dangerous weapons were

kept below the seat. Information was passed over to Senior

Inspector, Virar Police Station. Eventually, someone

informed that car was belonged to Mr. Kini. Surprisingly,

Police Constable Shinde, had cell number of Mr. Kini. Thus,

Kini was called, he came on the spot with one Kisan Tare to

whom Mr. Kini had sold the car. When enquired with Kisan

Tare about the car, he informed that since before ffteen

days, car was given on rent to Mr. Bhavesh Babubhai

Kalaria, but Kisan Tare was having spare key of the Innova

Car. Thus, team of constables opened up the car wherein

they found the dangerous weapons like, swords, knives,

blade of which was approximately 10 inches long, iron rods,

chilli powder, mobile hand-set. As such, Innova car and the

weapons were seized in presence of the two panchas.

4              It is prosecution case that with objective of


Shivgan                                                         4/19
                                              13-BA-2241-2018.odt

gaining   pecuniary   benefts   by   use   of   violence     or

intimidation or coercion or other unlawful means, applicant

and his gang conspired to eliminate Gabri. Kishor Mohite

constable thus, fled complaint which came to be registered

as Crime No.574 of 2016under Section 115 read with

Section 302, 120 and 120B of the IPC.

5 Applicant is one of the accused in the said crime.

He was apprehended on 7th December, 2016 and after

remanding him to police custody till 12th December, 2016,

he was remanded to judicial custody. On 6th January, 2017,

the approval under Section 23(1)(a) of the MCOC Act was

granted whereupon the ofences came to be registered

under Sections 3(1)(ii), 3(2) and 3(4) of the MCOC Act.

6 Mr. Apte, the learned counsel for the applicant

contended that false case has been fastened against the

Shivgan 5/19 13-BA-2241-2018.odt

applicant and it is submitted that the prosecution has come

out with concocted story, which is full of false events and

eventualities. Mr. Apte contended that no case of ofence

punishable under the MCOC Act has been made out and

there is absolutely no material in the charge-sheet to make

out prima-facie case of any ofence against the applicant.

Mr. Apte submitted penal provisions of Section 115 of IPC

have been incorrectly invoked and applied. It is contended

that prosecution case is inherently improbable and alleged

recovery of car and weapons has been planted just to apply

stringent provisions of the MCOC Act.

7 Mr. Apte has also criticised prior approval to

contend that it has been granted without application of

mind. It is contended that prior approval does not show

which two charge-sheets were considered by the authority

to hold that the applicant in the subject case was member

of organised crime syndicate and indulged in continuous

unlawful activities of the organised crime syndicate. He

Shivgan 6/19 13-BA-2241-2018.odt

submits, afdavit fled by the prosecution does not spell out

which more than one charge-sheet have been fled in

respect of cognizable ofence untaken by the applicant as a

member of crime syndicate within the preceding ten years

for applying MCOCA. It is further contended that crime chart

as against the applicant do not show that ofences

committed were on behalf of the organised crime syndicate

or as its members individually and/or collectively. On these

grounds. Mr. Apte seeks enlargement of the applicant on

bail.

8 Mr. Dabke, the learned Additional Public

Prosecutor, on the other hand supported the prosecution

case and brought to my notice crime chart of the applicant

and the co-accused to contend that the penal provisions of

the MCOC Act have been rightly applied and further track

record of the applicant suggests, if he is released on bail,

there is every likelihood of applicant indulging into similar

activities.

Shivgan                                                       7/19
                                                     13-BA-2241-2018.odt




9              I have perused the charge-sheet fled in the

Crime No.574 of 2016. It may be stated that except placing

the criminal antecedents/crimes at the discredit of the

applicant, no other material has been placed before me to

ascertain which past charge-sheets were considered by the

authority before granting the prior approval under Section

23(1)(a) of the MCOC Act. Neither the approval dated 6 th

January, 2017 makes any reference to past charge-sheets

nor any particulars thereto, were stated in the afdavit of

the Investigating Ofcer. In Prafulla s/o. Uddhav Shende

v. State of Maharashtra1, this Court has observed in

paragraphs 29, 43 and 44 that

29. Since the defnitions, though intertwined in a cyclic order, are clear and unambiguous, it would follow that each ingredient in the defnitions, or the alternative thereof provided by the defnitions themselves, would have to be proved. Viewed thus, for charging a person of organised crime or being a member of organised crime syndicate, it would be necessary to prove that the persons concerned have indulged in:

1   (2009) ALL MR (Cri) 870


Shivgan                                                           8/19
                                                  13-BA-2241-2018.odt



          (i) an activity,
          (ii) which is prohibited by law,

(iii) which is a cognizable ofence punishable with imprisonment for three years or more,

(iv) undertaken either singly or jointly,

(v) as a member of organised crime syndicate i.e. acting as a syndicate or a gang, or on behalf of such syndicate.

(vi) (a) in respect of similar activities (in the past) more than one charge sheets have been fled in competent court within the preceding period of ten years,

(b) and the court has taken cognizance of such ofence.

(vii) the activity is undertaken by :

(a) violence, or

(b) threat of violence, or intimidation or

(c) coercion or

(d) other unlawful means.

(viii)(a) with the object of gaining pecuniary benefts or gaining undue or other advantage or himself or any other person, or

(b) with the object of promoting insurgency.

43.This fortifes the conclusion that mere proof of fling charge sheets in the past is not enough. It is only one of the requisites for constituting ofence of organised crime. If only the past charge sheets were to be enough to constitute ofence of organised crime, it could have ofended the requirement of Article 20(1) of the Constitution and possibly Article 20(2) as

Shivgan 9/19 13-BA-2241-2018.odt

well, (and in any case Section 300 Cr.P.C.). Had these judgments of the Supreme Court and Division Benches of this Court been cited before the learned Single Judge deciding Amarsingh Vs. State 2006 ALL MR (Cri.) 407) the learned Single Judge, without doubt, would not have held that the matter was simply one of an arithmetical equation. The said judgment cannot be reconciled with the judgments of division benches in Jaisingh Vs. State 2003 ALL MR (CRI) 1506 and Bharat Shah Vs. State, 2003 ALL MR (Cri) 1061, which I am bound to follow.

44............ Therefore, since the previous criminal history of the applicants denotes that they had been or are being separately charged/ tried for those ofence before competent courts, there is no question of such ofences constituting ofence of organised crime." (emphasis supplied)"

10 Perusal of the allegations in the subject crime do

not point out though this crime (Crime No.574 of 2016)

committed by the applicant in capacity as members of

organised crime syndicate either as its leader or on behalf

of such crime syndicate.

Shivgan

13-BA-2241-2018.odt

11 Be that as it may, indisputably fourteen

crimes/ofences have been registered against the applicant

for diferent ofences punishable under Indian Penal Code,

1860. However, out of these ofences, in respect of fve

ofences, investigation is in progressn whereas in seven

ofences/crimes, charge-sheets have been fled and in one

crime, applicant was convicted under Section 302 of the

Indian Penal Code, 1860 but acquitted in appeal by this

Court. However, in absence of better particulars of these

fourteen ofences, like, which charge-sheets, were

considered before invoking provisions of MCOCA, I have

perused the present charge-sheet wherein gist of ofences

is summarised.

12 Be that as it may, in the back-drop, I assume,

there are fourteen previous ofences registered against the

applicant. Now let me see whether, previous ofences

registered against the applicant, were committed by him

singly or jointly as a member of crime syndicate or on

Shivgan

13-BA-2241-2018.odt

behalf of crime syndicate, so as to constitute, "continuing

unlawful activity"n AND whether prosecution has shown,

prima-facie, some nexus between the past crimes at his

discredit and present crime.

. Crime chart shows, Crime No.282 of 2016 was

registered under Sections 454, 457, 380 read with Section

34 of the IPC against the applicant and Vishal Chavan and

Tejas @ Tippan Sonawane, who are co-accused in

C.R.No.574 of 2016. However, it is to be noted that in this

crime (I.e.CR 282 of 2016), charge-sheet has not been fled

and investigation is in progress as is evident from Page 104

of the paper-book. Therefore, it is to be stated, that in

respect of this crime, charge-sheet has not been fled and

cognizance has not been taken. As such, for want of

clarifcation from the prosecution I keep the Crime No.282

of 2006 out of consideration for ascertaining whether this

ofence was committed in continuation of unlawful activity

within the meaning of Section 2(c) of the MCOCA. So far as

other ofences registered against the applicant are

Shivgan

13-BA-2241-2018.odt

concerned, prima-facie, prosecution could not establish

nexus between such ofence at his discredit and the present

crime. In-as-much as, present crime on the face of it has

been allegedly arose out of vengeance i.e. in retaliation and

personal enmityn whereas all past ofences were in the

nature of theft and/or house breaking committed

individually or with others. Evidence does not suggest that

the past ofences were committed by the applicant along

with present co-accused except Crime No.282 of 2016, in

respect of which investigation is in progress. Thus, ofence

committed in the past has prima-facie no nexus to present

ofence, wherein the MCOCA has been invoked. In the case

of State of Maharashtra v. Bharat Shantilal Shah and

Others 2, the Hon'ble Apex Court has held that ofences,

which do not look to be common to those under the MCOC

Act, would not be relevant for the purpose of denying the

relief of bail. Moreover, reply fled by the prosecution does

not show that previously registered ofences have anything

2 (2008) 13 SCC 5 Shivgan

13-BA-2241-2018.odt

in common with the ofences registered in the present

crime.

13 It may be stated, that mere number of fling

charge-sheet in the past is not in enough. It is only one of

the requisites for constituting organised crime. It has been

observed in Prafulla (Supra) that if only the past charge-

sheets were to be enough to constitute ofence of organised

crime, it could have ofended the requirement of Article

20(1) of the Constitution and possibly Article 20(2) as well.

Here the prosecution has just relied on the previous

ofences at the discredit of the applicant and nothing more.

To constitute continuing unlawful activity following are

requirements of law:

"i more than one charge-sheet, alleging commission of cognizable ofence punishable with imprisonment of three years or moren ii a charge-sheet should consist of averments, alleging unlawful activity undertaken either singly or jointly by the

Shivgan

13-BA-2241-2018.odt

accusedn iii as a member of organized crime syndicate or on behalf of such syndicaten iv the cognizance of such ofence is taken by the competent court."

Thus, in order to bring an alleged act within the ambit of

MCOC Act, the above mentioned requirements are

mandatory. Therefore, word "in respect of which" in

defnition of clause of "continuing unlawful activity"

indicates that it is not a normal charge-sheet, alleging

commission of cognizable ofence but requirement is that

alleged acts is undertaken either singly or jointly by the

accused, who is member of organised crimes syndicate or is

undertaken on behalf of such syndicate. In the case in

hand, no eforts were made by the prosecution to show that

past two ofences in respect of which charge-sheets were

fled, were committed by the applicant as member of

organised crime syndicate, I.e, acting as syndicate or a

gang or on behalf of such syndicate . In Ranjeetsingh

Shivgan

13-BA-2241-2018.odt

Brahmajeetsing Sharma v. State of Maharashtra &

Anr. , it is held, the unlawful activity alleged in the

previous charge-sheets should have nexus with the

commission of the crime which MCOCA seeks to prevent or

control. Thus, it was imperative on part of the prosecution

to establish prima-facie some nexus between the past

crimes at the discredit of the applicant and the present

crime, which has not been shown by the prosecution nor

the material on record suggests and indicates such nexus.

14 Be that as it may, afdavit fled by the

Investigating Ofcer in paragraph 15, reproduced list of

registered ofences against the applicant, who is stated to

be a gang leader. Paragraph 16 simply, states that the

ofences committed by the accused/applicant are serious in

nature and fourteen ofences registered against him and in

one of the ofences, he has been convicted for life.

Therefore, this afdavit is of no assistance to the

3 (2005) ALL MR (Cri) 1538 (S.C.) Shivgan

13-BA-2241-2018.odt

prosecution to contend that the provisions of the MCOC Act

have been correctly applied. Going further, in paragraph 16

of the afdavit, it is stated that the applicant has been

convicted for life, however, it may noted that applicant has

been acquitted by this Court in the year 2014 in an appeal

preferred against life imprisonment. Thus, to be noted that

even the Investigating Ofcer has not verifed correct facts

before fling afdavit.

15 In the subject crime, i.e., Crime No.574 of 2016,

investigation is over and the charge-sheet has been fled.

Applicant is in custody since October, 2016 and the trial is

not likely to commence and conclude in the reasonable

time. However, applicant's presence for the trial can be

secured by imposing suitable conditions.

16 In that view of the matter and for the reasons

stated, application is granted. Hence, following order:

Shivgan

13-BA-2241-2018.odt

ORDER

(I) The applicant in Crime No.574 of 2016 registered with

Virar Police Station, shall be released on executing PR bond

for the sum of Rs.50,000/- with one or more sureties in like

sum.

(ii) The applicant shall attend the concerned police

station twice a month, i.e., on 1 st and 3rd Monday of every

month commencing from March, 2021 between 11 a.m. to

12 a.m. till charge is framed.

(iii) The applicant shall furnish his permanent

residential address and contact number to the Investigating

Ofcer within seven days from the date of his release on

bail.

(iv) The applicant shall not tamper with the evidence

or attempt to influence or contact the complainant,

witnesses or any person concerned with the case

Shivgan

13-BA-2241-2018.odt

17 The application is accordingly allowed and

disposed of.

18 It is made clear that observations made here-in-

above be construed as expression of opinion for the

purpose of bail only and the same shall not in any way

influence the trial in other proceedings.

(SANDEEP K. SHINDE, J.)

Shivgan