Jaising @ Bunty Girwasing Thakur vs The State Of Maharashtra
2021 Latest Caselaw 3640 Bom

                                                              BA 3452-19 aw BA 3017-19.doc




Neeta S. IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Sawant
Digitally signed by
Neeta S. Sawant            CRIMINAL APPELLATE JURISDICTION
Date: 2021.02.26
15:06:51 +0530



                             Bail Application No. 3452 OF 2019


                      Raju @ Haidar @ Mohammed Shahid
                      Mohammed Ibrahim Khan
                      Aged : 31 years, Occu: Business,
                      Residing at Tin factory, Tofkhana Bazar,
                      Ambedkar Chowk, Dist. Munger,
                      State - Bihar.                                 .. Applicant

                                Versus


                      The State of Maharashtra
                      ( At the instance of Narpoli Police Station,
                      C.R. No. 472 / 2018)                           .. Respondent


                                               Alongwith


                             Bail Application No. 3017 OF 2019

                      Jaising @ Bunty Girwasing Thakur
                      Aged about 34 years, Occu: Business,


                                                                               1/24
                                           BA 3452-19 aw BA 3017-19.doc


Residing at Room No. 407,
Ashoka CHS, Bldg. No. 2,
Dharamvir Nagar, Tulsidham,
Thane (West).                                   .. Applicant

         Versus

The State of Maharashtra
(At the instance of Narpoli Police Station) .. Respondent


                            ......

Mr. Amin Solkar a/w Ms. Misbaah Solkar, Advocate for the Applicant in BA No.3452/2019.

Mr. Deepak Gautam a/w Ms. Nandini, Advocate for the Applicant in BA No. 3017/2019.

Ms. Veera Shinde, APP for State/ Respondent in both the matters.

HC/ R.D. Sagar - Kongaon Police Station, Bhiwandi.

......

        CORAM                 : SANDEEP K. SHINDE J.
                                     th
        RESERVED ON           : 10        FEBRUARY, 2021.
                                   th
        PRONOUNCED ON : 26                FEBRUARY, 2021.





                                          BA 3452-19 aw BA 3017-19.doc



JUDGMENT : -


1.     By    these   applications,   applicants     are     seeking

enlargement on bail in connection with the Crime No.

472/2018 registered with Narpoli Police Station for the

offences punishable under Sections, 387, 115, 120-B, 511

of the Indian Penal Code, 1860 with Section 3, 25 of the

Arms Act and Section 3 (1)(ii), 3 (2), 3 (4) of the

Maharashtra Control of Organized Crime Act (MCOC Act for

short).

2. Prosecution case is as under;

on 6 December, 2018, crime no. 468 of 2018 came to be th

registered under Sections 307, 504 of the Indian Penal

Code, 1860 at the instance of injured Arjun Pavitra Sarkar,

BA 3452-19 aw BA 3017-19.doc

who was assaulted with country made pistol by his relative

Dulal Mandal, at Kasheli Pipe Line. Accused Dulal Mandal

was apprehended on 8 December, 2018 alongwith Jaisingh th

@ Girwasingh Bunty Thakur ('Bunty Thakur' for short -

applicant in application no. 3017 / 2019).

3. Interrogation of Dulal Mandal and Bunty Thakur in

crime no. 468 / 2018 revealed that they were planning to

cause annoyance and terror in Thane City by targeting

persons engaged in the construction business for undue

pecuniary gains, being members of a gang, headed by Rai

@ Rajesh Karotiya. Interrogation also, revealed that on 23 rd

November, 2018 Dulal Mandal, Bunty Thakur, Anju &

Prabhakar, had hired a tourist a taxi (white colour Ertiga

BA 3452-19 aw BA 3017-19.doc

Car) for going to Nashik. After proceeding up to Kasara

above named persons asked driver, Arvind Dixit to turn

back and on the way, they opened the fre and shot him

dead and threw his body at isolated place, near Shahpur.

Thereafter, they changed the number plate of the car. As

such crime no. 551 / 2018 was registered at Shahpur Police

Station under Sections 302, 201 against the unknown

persons. That further interrogation of Dulal Mandal and

Bunty Thakur. revealed that a meeting was held

somewhere around in last week of November between

Bunty Thakur, Dulal Mandal, Kali @ Pramod Nunair, Hindu

Gangwasi, [email protected] Rajesh Karotiya @ Prabhakar Thakur near

Kasheli, Bridge, wherein applicants and above named

BA 3452-19 aw BA 3017-19.doc

accused persons conspired to target the persons engaged

in the construction business and such other rich persons by

kidnapping them for ransom by threatening and using the

fre arms with the object of gaining undue economic or

pecuniary benefts.

4. Since in the interrogation of Dulal Mandal and Bunty

Thakur, aforesaid facts were divulged, on 10 December, th

2018. Assistant Police Inspector Mr. Vishnu Avhal lodged a

complaint with Narpoli Police Station under Sections 387

(putting person in fear of death or of grievous hurt in order

to commit extortion), 115, 120-B, 511 read with offences

under the Maharashtra Police Act, whereupon crime no. 472

/ 2018 (subject crime for short) came to be registered

BA 3452-19 aw BA 3017-19.doc

against the applicants and others.

5. In the course of investigation of subject crime, Bunty

Thakur in memorandum statement disclosed that he

alongwith Dulal Mandal, Kali, Anju, Rajesh and Heeru had

formed a gang for committing extortion, from the persons

in the construction business and in order to execute the

plan, had purchased pistol, cartidges from Raju @ Haider

Mohd. Shaheed Khan (applicant in application no.

3452/2019). In pursuant to the disclosure, applicant Raju @

Haider was arrested on 19 December, 2018 at Bihar in th

view of the allegations that he had supplied the country

made pistols to Bunty Thakur and his associates for

committing offences, in respect of which crime no.

BA 3452-19 aw BA 3017-19.doc

468/2018 and crime no. 551/2018 were registered. In the

course of investigation, three country made pistols were

recovered; out of which one each from the house of

accused Heeru @ Heeramand Gangwasi and accused

Rajesh @ Rai and one on the disclosure made by Bunty

Thakur from the house of accused Sudesh Nikkam (co-

accused).

6. So far as the applicant Raju @ Haider is concerned;

one country made pistol was recovered at his instance on

24 January, 2019, from the place near the building Silver th

Cassel, Majivade, Dist. Thane, concealed below a tree. The

prosecution after effecting the recovery of the fre arms

cartridges and such dangerous weapons under Section 27

BA 3452-19 aw BA 3017-19.doc

of the Evidence Act at the instance of applicants herein and

co-accused, invoked the provisions of MCOCA after seeking

approval on 7 January, 2019; whereafter sanction under th

Section 23 (2) of the Act was also accorded by the

Competent Authority. As such the offence under Section

3(1) (ii), 3 (2), 3 (4) of MCOCA were added to crime no.

472 / 2018. In the course of investigation, statements of

witnesses were recorded under Section 164 of Cr.P.C. and

after completing the investigation, the charge-sheet has

been fled.

7. Application No. 3452 / 2019 : Mr. Amin Solkar,

learned Counsel for the Applicant would submit that the

applicant is a resident of Bihar State and there is no

BA 3452-19 aw BA 3017-19.doc

evidence at all to show his complicity, either in crime in

question i.e. crime no. 472 / 2018 or in crime no. 468 / 2018

or in crime no. 551/2018. Mr. Solkar submits, it is

prosecution case that the victim in crime no. 468 / 2018

(Arjun Sarkar) and in crime no. 551/ 2018 (Arvind Dixit)

were assaulted by the fre arms allegedly supplied by the

applicant Raju @ Haider. Mr. Solkar submits even assuming

but without admitting that applicant Raju @ Haider had

supplied the fre arms to Bunty Thakur, but there is no

material on record to indicate that applicant abetted the

commission of an offence in aforesaid two crimes, as a

member of Organized Crime, or otherwise. It is submitted

that except the statement of one Shekhar Chavan that he

BA 3452-19 aw BA 3017-19.doc

had been to Bihar, in June, 2018 alongwith Bunty Thakur

and met the applicant Raju @ Haider, there is no material

on record to prima facie establish that the applicant had

supplied fre arms to the co-accused for committing the

offences to create annoyance and terror in the locality, with

a view to make undue pecuniary gains for himself or on

behalf of the Crimes Syndicate.

. Mr. Solkar submitted, that the recovery a pistol on

disclosure of the applicant on 24 January, 2019 is th

unbelievable and far-fetched, because it is prosecution case

that pistol was concealed by the applicant below a tree at

Majivade in January, 2018 and recovered in January, 2019.

Mr. Solkar would submit that applicant is in the custody

BA 3452-19 aw BA 3017-19.doc

since 19 December, 2018. Investigation is over and trial is th

not likely to commence and conclude within the reasonable

period. On this ground, Mr. Solkar seeks enlargement of

applicant on bail.

8. Indisputably, the crime in question i.e. 472 / 2018

came to be registered, while accused Dulal Mandal and

Bunty Thakur revealed their complicity in crime i.e. crime

no. 551 / 2018 causing murder of Arvind Dixit, a driver of

tourist vehicle and further divulging facts that car was

taken charge of for committing the offence of extortion with

the help of co-accused. Admittedly, the subject offence,

when registered on 10 December, 2018 applicant Raju @ th

Haider was not cited as one of the schemers. It is only after

BA 3452-19 aw BA 3017-19.doc

the disclosure made by the Bunty Thakur that the fre arms

were supplied by the Raju @ Haider, he came to be

arrested on 19 December, 2018, in crime in question. A th

fact cannot be overlooked that the complaint dated 10 th

December, 2018 does not indicate at all that the accused

had joined a meeting of the co-accused allegedly held in

the last week of November, 2018, wherein co-accused had

the conspired to target the developer for pecuniary gains.

Infact, the allegations of conspiracy suggests the

preparation for committing the offence of extortion by

means of dangerous weapons, but the allegations of the

conspiracy made at the frst instance completely excludes

the applicant.

BA 3452-19 aw BA 3017-19.doc

9. Be that as it may, the prosecution to suggest the

complicity of the applicant would rely on, (i) statement of

Shekhar Chavan recorded on 15 December, 2019 under th

Section 164 of Cr.P.C.; (ii) disclosure memorandum dated

24 January, 2019, pursuant to which, country made pistol th

was recovered at the instance of the applicant and (iii)

amount of Rs. 11000/- transferred by Bunty Thakur in the

account of applicant's wife Afrin Khan.

. So far as statement of Chavan is concerned, it reveals

that in the year 2018, he had been to Bihar with accused

Bunty Thakur and met the applicant, where the applicant

had allegedly shown him fake Indian Currency Notes and

pistol. How this statement connects applicant to crime in

BA 3452-19 aw BA 3017-19.doc

question, has not be answered by the prosecution. The

alleged transfer of Rs. 11000/- in the account of applicant's

wife would at highest suggest that there was some

transactions between the applicant and Bunty Thakur.

However how transfer of Rs. 11000/- establishes link that it

was transferred in consideration of supply of fre arms has

not been explained. Prosecution may establish this link by

leading evidence in trial. Now so far as the recovery of fre

arm at the instance of applicant is concerned; it was

recovered in January, 2019 which was allegedly concealed

by the applicant below a tree in January, 2018, which again

prima facie, does not establish link, to connect or show

applicant's complicity in organised crime. Besides the

BA 3452-19 aw BA 3017-19.doc

prosecution would also contend that Call Detail Records

show presence of applicant in Bhiwandi, Thane area when

offence in question and other offences were committed.

10. In my view, the material on which, reliance is sought

to be placed by the prosecution does not prima facie

suggest or indicate alleged supply of fre arms by the

applicant to the co-accused was the step in execution of the

conspiracy to commit the organised crime of extortion for

undue pecuniary gains, nor the material sought to be used

against the applicant suggests his complicity in the crime

no. 468 / 2018 or 551 / 2018. Even otherwise, material on

record does not show that the applicant had committed

such other crimes either with the gang leader or the co-

BA 3452-19 aw BA 3017-19.doc

accused in past. In fact prosecution case suggests

applicant had sold fre arms for consideration. Thus, in

consideration of the facts of the case and for the reasons

stated, I am satisfed that there are reasonable grounds for

believing that applicant is not guilty of offence of organised

crime and he is not likely to commit any offence while on

bail.

11. Application No. 3017 / 2019 :

Herein, offence against the applicant is one under

Section 387 read with 120-B of IPC. Prosecution case is

that applicant and Dulal Mandal (co-accused), when

interrogated in crime no. 468 / 2018 divulged that in the

last week of November, they hatched a plan to target the

BA 3452-19 aw BA 3017-19.doc

persons engaged in the construction business to obtain

money by putting them in fear of death or grievous injury,

by fre arms. As such, the subject offence came to be

registered on disclosure of facts by the applicant and co-

accused, when they were in the police custody. Thus, the

subject FIR lodged by Inspector Avhad, is based on

information given by the accused to police ofcer in the

form of a confessional statement, proof of which is

prohibited under Section 25 of the Evidence Act. Be that as

it may, in order to constitute an offence as laid down under

Section 387 of IPC, there ought to be some visible overt act,

which may refect the natural and normal inference that the

wrongdoer had infact put a person or had made an attempt

BA 3452-19 aw BA 3017-19.doc

to put any person in fear of death or grievous hurt. Thus in

absence of any apparent overtact leading towards the act

of extortion and thus putting any person in fear of death or

grievous hurt cannot be said to be an offence committed for

extortion by threat. In the case of Ramji Singh Vs. State

of Rajasthan (1987) Criminal Law Journal 137, it is held

that "without any visible sign of physical act, simply use of

words is not enough to constitute that offence and in the

instant case, in absence of any physical act on the part of

the petitioner and also any such material, which may

indicate that, as a matter of fact, the petitioner had

practised extortion by threat of fear of death and hurt, the

offence is not constituted."i

BA 3452-19 aw BA 3017-19.doc

. Nevertheless, complaint herein suggests, acts and/ or

omission was "not an attempt"i but "preparation"i. In view

of Section 40 of IPC, attempt to commit an offence,

constitute an offence and in absence of express provision

as to punishment for attempt, it is punishable by aid of

Section 511 IPC. Herein, prosecution has also invoked

Section 511, which prima-facie in my view has no

application. There is a thin line between "preparation for

an offence"i and "attempt to commit"i. Preparation, except

when it is for decoity, simplicitor is not offence.

12. Though the prosecution has made some efforts to

establish the some nexus between the past crime and the

subject crime, but since I am of the view that FIR is founded

BA 3452-19 aw BA 3017-19.doc

on information divulged while in the police custody, a proof

of which is prohibited by Section 25 of the Evidence Act and

in absence any overt act by the applicant and co-accused

in an 'attempt to commit the robbery', in my view a case is

made out for releasing the applicant on bail.

13. Thus, in consideration of the facts of the case and

after perusing the crime chart appended to the charge-

sheet against the applicant, I am satisfed that there are

reasonable grounds for believing that the applicant is not

guilty of offence of Organized Crime and he is not likely to

commit any offence while on bail.

14. Both the applications are allowed, hence the following

order.

BA 3452-19 aw BA 3017-19.doc

ORDER

(i) Applicant in Application No. 3452/2019 in Crime

No.472/2018 registered with Narpoli Police Station is

directed to be released on bail on executing P.R. Bond in

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

the like amount;

(ii) Applicant in Application No. 3452/2019, shall report to

the Investigating Ofcer once in a month i.e. Second

Monday of each month commencing from March, 2021

between 11:00 am. to 04:00 pm. till the charge is framed;

(iii) Applicant in Application No. 3017/2019 in Crime

No.468/2018 registered with Narpoli Police Station is

directed to be released on bail on executing P.R. Bond in

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

like amount;

BA 3452-19 aw BA 3017-19.doc

(iv) Applicant in Application No. 3017/2019, shall report

to the Investigating Ofcer twice a month i.e. Second and

Fourth Monday of each month commencing from March,

2021 between 11:00 am. to 04:00 pm. till the charge is

framed;

(v) Both the applicants shall furnish their residential

address as well as permanent address and contact details

to the investigating ofcer within seven days of their

release from jail;

(vi) Both the applicants shall not tamper with the

evidence or attempt to infuence or contact the

complainant, witnesses or any person concerned with the

case;

15. Applications are allowed and disposed of accordingly.

BA 3452-19 aw BA 3017-19.doc

16. It is made clear that observations made hereinabove

be construed as expression of opinion only for the purpose

of granting bail and the same shall not in any way infuence

the trial in other proceedings.

(SANDEEP K. SHINDE J.)

NAJEEB