Anil Shankar Patil vs The State Of Maharashtra
2021 Latest Caselaw 1436 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                       CRIMINAL APPELLATE JURISDICTION

                 CRIMINAL BAIL APPLICATION NO. 2174 OF 2018

Anil Shankar Patil                                         ... Applicant
         V/s.
The State of Maharashtra                                   ... Respondent


* Mr.Manoj Mohite, Senior Advocate a/w. Mr.Shriram Shirsat,
  Mr.Ajit Tamhane, Mr.Amit Potnis, Mr.Rohan Tamhane and
  Mr.Yash Juwatkar i/b. Tamhane & Co. for Applicant.
* Mr.Pradip Gharat, Special P.P. a/w. Ms.Rutuja Ambekar, A.P.P. for
  Respondent-State.


                                        CORAM : A.S. GADKARI, J.

DATE : 21st January 2021.

P.C. :

This is an application preferred by Original accused No.4 for bail

under Section 439 of the Criminal Procedure Code read with Section 21(4) of

The Maharashtra Control of Organised Crime Act, 1999 (for short, 'MCOCA')

in connection with C.R. No. 46 of 2017 registered with C.I.D. (C.R. No. 435 of

2017 registered with Dharavi Police Station) Mumbai, for the offence

punishable under Sections 387, 504, 506(2) read with Section 34 of the

Indian Penal Code, Section 7 of The Criminal Law Amendment Act, 1932 and

Sections 3(1)(ii), 3(2), 3(4) of MCOCA.

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2. Heard Mr.Mohite, learned Senior Counsel for the applicant and

Mr.Gharat, learned Special P.P. along with Ms.Ambekar, learned A.P.P. for the

respondent-State. Perused record annexed to the application.

3. In view of Section 19 of MCOCA and in order to protect identity

of the witnesses, their names and material particulars disclosing their identity

is hereinafter avoided. The witnesses herein are referred to as per their serial

numbers mentioned by the prosecution in the compilation of statements

submitted by it at the time of hearing of the present application. The

witnesses would be referred to as Witness at Serial Number (for short,

'WS-__').

4. The Prosecution case in brief is that, informant (WS-1) along with

his mother (WS-2) were owners of a Private Limited Company. The said

company was providing advice/consultancy and all other related work for

S.R.A. projects and were acting as agents/representatives on behalf of the

builders and slum rehabilitation societies before the Slum Rehabilitation

Authority and other Government Authorities. That in the month of October

2013, the members of Nirmal Nagar Society approached the informant on

phone and requested him to extend his help in the slum rehabilitation project

of their society and gave him papers of the said project. The informant (WS-1)

and his mother (WS-3) studied the file of the said project, also visited the site

of Nirmal Nagar Society and gathered necessary and relevant details of it. The

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informant (WS-1) and his mother (WS-3) followed up the case of Nirmal

Nagar Society with the Competent Authority of S.R.A. and got the said project

cleared. They also followed up the said project with its erstwhile builder,

namely, Aakruti Builders. After the said project got clearance from S.R.A.

Authorities, under the guise of congratulating the informant and his mother,

Annadorai Devendra (A-3) called the informant (WS-1) and his mother (WS-

3) at a hotel at Sion Circle. He thereafter asked them to take permission from

D.K. Rao (A-1) to further continue with the said S.R.A. Project. When the

informant enquired with said Annadorai Devendra (A-3) about D.K. Rao (A-

1), he informed them that the said D.K. Rao (A-1) is a gangster belonging to

Chhota Rajan gang and at that relevant time, he was in Taloja Central Prison.

After about two days Mrugank C. Kolawalkar @ Miki (A-5)

approached the informant and called him and his mother near Vakola. Miki

Kolwalkar (A-5) told that, D.R. Rao (A-1) was having participation in the said

project and made the mother of the informant talk from his mobile handset

with D.K. Rao (A-1). In the said conversation D.K. Rao (A-1) told the

informant to appoint Annadorai Devendra (A-3) as 'Chief Promoter' of the

said project. That on 25th January 2014 a meeting was held between the

Committee members of the Nirmal Nagar Society and the informant regarding

the said S.R.A. project in the office of Sejal Builders. In the said meeting,

Annadorai Devendra (A-3) demanded ₹50 crore as his commission for giving

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the S.R.A. project for development to the said builders. The developer offered

₹5 crore to Annadorai Devendra (A-3), who flatly refused it.

After some days, one more meeting was held in the office of Sejal

Builders, where the partners of Sejal Builders, Annadorai Devendra (A-3),

informant and the present applicant (A-4) were present, wherein a heated

discussion took place. The informant was made to hear on speaker phone

conversation of Chhota Rajan and D.K. Rao (A-1). It was finally decided that,

the builder will pay ₹40 crore to Annadorai Devendra (A-3) and ₹10 crore

would be paid to Chhota Rajan gang. Memorandum of Understanding was

prepared and signatures of the concerned including the present applicant

were put on it. A few days later, in a meeting held at the office of Sejal

Builders, the informant and his mother were promised a remuneration of ₹2

crore and 2 flats for their help, assistance and services rendered in clearing

the said S.R.A. project of Nirmal Nagar Society. In due course of time, the

respective agreements between builder and slum dwellers were executed. The

informant and his mother personally introduced the builder to the members of

the society. The applicant and other accused persons thereafter started calling

D.K. Rao (A-1) on phone and used to hand it over to the informant and his

mother; whereupon the accused No.1 threatened them to leave the site of

Nirmal Nagar S.R.A. project. Whenever the informant and his mother

requested the developer for clearing their payment, the applicant and other

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accused persons used to connect them with D.K. Rao (A-1) on phone and A-1

used to ask them as to why the informant and his mother are calling for

developer for their payment. He also told them to clear payment of Annadorai

Devendra (A-3).

It is the further prosecution case that, in the month of January

2017, Shankar Bhojappa Yerolla (A-2) called informant on phone and told

him that D.K. Rao (A-1) wanted to meet him. At about 8.00 pm, the informant

went to the office of D.K. Rao (A-1) on the second floor of Nalanda building,

near Priyanka Bar at Dharavi, Mumbai. The co-accused Harun opened door.

One witness in the present crime and Shankar Yerolla (A-2) were present

there. D.K. Rao (A-1) abused the informant in filthy language and threatened

him that, hereinafter he would not go to the said site and call the builders for

their remuneration. The informant told D.K. Rao (A-1) about the behavior of

the builders was not good and the builder was avoiding to pay his dues as

agreed earlier. D.K. Rao (A-1) further threatened the informant with dire

consequences and directed him not to approach builder again. He also

directed informant to pay ₹50 lakhs to Miki Kolawalkar (A-5). In the premise,

the informant lodged the First Information Report with police.

During the course of investigation, it was revealed to the police

that the organised crime syndicate headed by D.K. Rao (A-1) is actively

involved in the present crime and therefore, the provisions of MCOCA have

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been applied to it.

5. Mr.Mohite, learned Senior Counsel appearing for the applicant

submitted that, it is the informant and his mother who through Miki

Kolwalkar (A-5) approached D.K. Rao (A-1) for settling their dues and not

vice-versa. He submitted that, except one threat which was alleged to have

been administered by the applicant in the meeting held on 12 th March 2014,

no other role is attributed to the applicant in the present crime. He submitted

that, the applicant was appointed by the builder to supervise the work of

redevelopment of the Nirmal Nagar Society and it was the duty assigned to

him to get the huts vacated from the hutment dwellers. He submitted that, the

applicant got the said slums vacated from its dwellers after execution of

necessary legal documents in that behalf and therefore, it cannot be said that

the applicant got the said huts forcefully vacated from its dwellers. He

submitted that, in all 1711 hutment dwellers were provided with either

monitory compensation or alternate accommodation by the builder. He

submitted that, the statement of witness (WS-19) is recorded after a gap of

about three months from the date of lodgment of the crime and therefore, it

creates doubt about its reliability. He further submitted that, perusal of

affidavit filed by the Investigating Officer would disclose that, after the year

2002 no cases have been filed against the applicant (A-4) and the applicant is

living a clean life. He further submitted that, the statement of witnesses relied

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upon by the prosecution are general in nature. There is no material to show

association of the applicant (A-4) with D.K. Rao (A-1). In rejoinder to the

arguments advanced by the learned Special P.P. and at the cost of repetition,

he submitted that, the applicant was an employee of the builder appointed

only to supervise the said project and to get the slums vacated after necessary

agreements are executed. He submitted that, the applicant has no connection

with the organised crime syndicate of D.K. Rao (A-1) as alleged by the

prosecution. He lastly submitted that, material available on record is scanty, to

attribute precise role of the applicant in the present crime. He therefore

prayed that the applicant may be release on bail.

6. The learned Special P.P. pointed out all the relevant statements of

witnesses. He submitted that, the witness (WS-19) clearly mentions about the

close association of Miki Kolwalkar (A-5) and applicant (A-4) with D.K. Rao

(A-1) and their regular meetings with him in respect to the said project. He

submitted that, the witnesses who are the slum dwellers of the said society

have stated the fact about the reign of terror unleashed by the applicant in the

said locality. He submitted that, there is sufficient material available on record

to show that, the applicant was in constant touch with D.K. Rao (A-1) and was

aiding and abetting his organised crime syndicate for pecuniary benefits

arising out of redevelopment of the said Nirmal Nagar project. He submitted

that, a strong prima-facie case against the applicant is made out showing his

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involvement in a crime committed by an organised crime syndicate and

therefore, the present application may be rejected.

7. The material against the applicant available on record is in the

form of statements of witnesses. WS-19 has stated that, Miki Kolwalkar (A-5)

and applicant (A-4) since long were in contact of D.K. Rao (A-1) and used to

visit his home regularly. He has further stated that, the applicant alongwith

Annadorai Devendra (A-3) used to come together to meet D.K. Rao (A-1) at

his home to discuss issues pertaining to development of Nirmal Nagar S.R.A.

project. The informant has in detailed narrated the association of applicant

(A-4) and Miki Kolwalkar (A-5) with D.K. Rao (A-1). The mother of informant

(WS-1), who is a prime witness, has categorically stated that, the applicant

(A-4) and co-accused Harun used to direct her to have talks with the head of

organised crime syndicate, namely, D.K. Rao (A-1) from their mobile phones.

Perusal of statements of informant and his mother would indicate

that, it is at the instance of D.K. Rao (A-1), Annadorai Devendra (A-3) became

Chairman of the said Nirmal Nagar Society. She has also narrated about the

threats given by D.K. Rao (A-1), the applicant and other accused persons to

her and her son. WS-6 to WS-15 have categorically stated that, the applicant

and co-accused Annadorai Devendra (A-3) used to remain present at the site

of the said society as representatives of D.K. Rao (A-1). That the applicant and

Annadorai Devendra (A-3) have demolished about 1000 to 1100 huts forcibly.

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That the applicant along with other accused persons have unleashed rein of

terror in the said Nirmal Nagar Society. As per the submissions of the learned

Special P.P. there are at-least 20 statements on record of slum dwellers who

have stated that, the applicant and co-accused Annadorai Devendra (A-3)

were representatives of D.K. Rao @ Bhai and used to remain present at the

site.

There is more than sufficient material available on record to

clearly indicate the association of applicant with the head of organised crime

syndicate, namely, D.K. Rao (A-1) and his actual participation in the present

crime.

8. Section 2(a) of the MCOCA defines "abet", with its grammatical

variations and cognate expressions, includes,-

             "(i)    ...
             (ii)    ...

(iii) the rendering of any assistance, whether financial or otherwise, to the organised crime syndicate."

It is thus clear that, a person rendering any sort of assistance

financially or otherwise to the organised crime syndicate is abetting an

offence under the provisions of MCOCA.

From the statements of witnesses on record it is clear that, the

applicant (A-4) has abetted the organised crime syndicate headed by D.K. Rao

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(A-1).

In the present case, it is the precise case of the prosecution that

the applicant is a member of an organised crime syndicate headed by D.K. Rao

(A-1), who inter-alia is a member of the larger organised crime syndicate

headed by Chhota Rajan.

9. While analysing the provisions of Section 21(4) of the MCOCA in

the case of State of Maharashtra Vs. Vishwanath Maranna Shetty, reported in

(2013) 1 SCC (Cri) 105 : (2012) 10 SCC 561, in para No.29, the Hon'ble

Supreme Court has held thus :

"29. 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 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

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specific provisions for dealing with matters arising thereunder, 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 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 sub-section (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 both the aspects mentioned in clauses (a) and (b) of sub-section (4) of Section 21 is sine qua non for granting bail under MCOCA."

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10. In view of above discussion, a finding cannot be recorded that the

applicant is not guilty of an offence as contemplated under Section 21(4) of

MCOCA.

11. The Bail Application is accordingly rejected.

[A.S. GADKARI, J.]

Digitally signed by Omkar S.

Kumbhakarn Omkar S.

Date:

Kumbhakarn    2021.01.29
              17:46:24
              +0530