Niyamtulla @ Munna Mohd. ... vs The State Of Maharashtra
2021 Latest Caselaw 5786 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CRIMINAL APPELLATE JURISDICTION


                    CRIMINAL BAIL APPLICATION NO. 457 OF 2020

 Niyamtulla @ Munna Mohd. Shirgaonkar                       ... Applicant
           Versus

 The State of Maharashtra                                  ... Respondent

                                     .....
 Mr. Vinod Kashid, Advocate for the Applicant.
 Ms. Anamika Malhotra, APP for the Respondent - State.
 Mr. Bhat, ( P.I.) Antop Hill Police Station, Present.
                                     .....

                                CORAM       :     PRAKASH D. NAIK, J.

                                DATE        :     31st MARCH, 2021

 PER COURT:

1. The applicant has preferred this application for bail in

C.R. No. 229 of 2012 registered with Antop Hill Police Station,

Mumbai. The offences were registered under Sections 307, 387,

120(B), 506(2) r/w Section 34 of Indian Penal Code (for short "IPC).

Subsequently, Sections 3(1)(ii), 3(2), 3(4) of Maharashtra Control of

Organised Crime Act, 1999 (for short "MCOC Act") were applied. The

applicant was arrested on 7th June, 2019.

2. The First Information Report (for short "FIR") was

registered on 4th October, 2012. The case of the prosecution is that

on 4th October, 2012 at about 5.15 p.m. Mangesh Vichare was

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standing in front of Baudhik Sampada Bhavan. Rohit @ Pappu

Chavan, Prakash @ Vicky Krishna Bhatkal and Anil More rushed

towards him with sharp edged weapon and assaulted him. Rajesh

Vichare intervened to rescue Mangesh. He was also assaulted by the

accused. Incident was reported to Antop Hill Police Station. Accused

were arrested. Vijay Kedare is the leader of crime syndicate. He is

involved in several cases. Proposal was forwarded for applying

provisions of MCOC Act. Supplementary statement of Rajesh Vichare

was recorded on 7th October, 2012. He stated that Vijay Kedare was

in jail in another offence. In June, 2008 two unknown persons had

visited office of complainant. They took Yogesh and Mangesh to

Thane Court. Vijay Kedare was brought to the Court. When the

complainant and his brother met Vijay Kedare, they were threatened.

Yogesh was told to resign from the post of Chief Promoter of

Sainagar Sahakari Grihnirman Sanstha and he gave all the

documents to Chandu Dhage and that he would be made Chief

Promoter of the scheme and Vijay Kedare would decide as to who

would be appointed as the builder. Accused Chandrakant Dhage and

others went to the office of complainant. They threatened the

complainant in the name of Vijay Kedare and demanded the

documents. In 2009 he was enlarged on Parole. He had demanded

documents from the complainant and threatened him of dire

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consequences. Charge-sheet was filed against arrested accused.

3. The applicant had preferred Criminal Writ Petition No.

4350 of 2013 for quashing the proceedings under the MCOC Act

initiated against him. The petition was heard on 8 th March, 2014. It

was directed to be listed on 19 th March, 2014. The investigating

agency had directed that not to take any coercive action against the

applicant till the next date i.e. on 19 th March, 2014. The petition was

finally heard and vide order dated 22nd March, 2018, the petition was

dismissed.

4. Supplementary charge-sheet was filed against the

applicant. He preferred an application for bail before the Special

Judge under MCOC Act. The said application was rejected by order

dated 3rd December, 2019. While rejecting the said application, it was

observed that the participation of the applicant in the crime is

alleged by the prosecution as member of organized crime syndicate.

Serious offences are committed by organized crime syndicate. C.R.

No. 229 of 2012 was registered against 8 persons. Trial was

conducted against other accused. The applicant was absconding. The

co-accused were convicted vide Judgment dated 18 th January, 2019.

The prosecution had preferred application for issuing proclamation.

Subsequently, the applicant was arrested. He was absconding for

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more than 4 years. Writ Petition preferred by the applicant was

rejected by the High Court. High Court had scrutinized the

proceedings and come to the conclusion that sufficient material was

found to proceed against applicant. The High Court had observed

that the applicant had not cooperated with investigation and

approached the High Court after more than 4 years. The learned

Special Judge perused the material on record and rejected the

application for bail on merits.

5. Learned advocate for the applicant submitted that the

applicant has been falsely implicated in this case. The residence of

the applicant is situated at C.T.S. No. 415 at Wadala Road (East),

Mumbai. The tenants from Sai Nagar Co-operative Housing Society

Ltd. to avail benefits from S.R.A. scheme. Yogesh Vichare has

appointed as Chief Promoter. He had two brothers, namely Mangesh

and Rajesh. They were having criminal background. Some of the

tenants were not satisfied with the conduct of the Chief Promoter.

They formed another society and appointed committee. The

applicant was elected as president. Documents were submitted to the

builder for re-development. Some of the tenants including

Chandrakant Dhage form Co-operative Housing Society. Baliram

Dhage was appointed as president. They submitted their consent to

the developer. Thus, there was dispute between two groups. The

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applicant has no connection with the crime syndicate. He has no

criminal background. He had sought information about criminal

cases against Yogesh Vichare. The applicant was pursuing his remedy

under the Law. He was not absconding. Co-accused Arogya Swami

Paul, Krishna Mubarak Shikhandor @ Kari and Chandrakant

Dattaram Dhage were granted bail. Learned advocate for the

applicant has relied upon orders granting bail to the said accused.

Chandrakant Dhage was granted bail by this Court vide order dated

30th July, 2015. Provisions of MCOC Act are not applicable to the

applicant. The order passed by this Court dismissing the Criminal

Writ Petition cannot be considered for rejection of the application for

bail. The scope of both the proceedings are different. The co-accused

who has been convicted by the trial Court vide Judgment dated 18 th

January, 2019 were awarded sentence of 5 years. The leader of the

gang Vijay Kedare has been sentenced to suffer imprisonment for 7

years. The applicant is in custody for substantial period. The

convicted accused Arogya Swami Paul and another accused had

preferred appeal challenging the conviction before this Court. The

sentence imposed against them has been suspended pending appeal

and they are directed to be released on bail by order dated 18 th July,

2010 in Criminal Application No. 114 of 2019 in Criminal Appeal No.

110 of 2019.

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 6.                 Learned    APP   submitted   that   the     applicant        has

participated in the crime. Specific role has been attributed to him.

There is strong evidence against the applicant. He was absconding

for more than 4 years. In the event, bail is granted to him there is

every likelihood that he would abscond. While dismissing the

Criminal Writ Petition preferred by the applicant, this Court has

observed that there is material showing involvement of the applicant.

The offence is of serious nature. The applicant has acted in

connivance with the crime syndicate. Hence, application for bail may

be rejected.

7. The FIR was registered on 4 th October, 2012. The

applicant could not be arrested. He preferred Criminal Writ Petition

No. 4350 of 2013. The order annexed to this application indicate

that the interim protection was granted to the applicant for one day

by order dated 18th March, 2014. It was extended till 21 st March,

2014. There is nothing on record to show that the interim protection

was thereafter extended. Writ Petition was dismissed by order dated

22nd March, 2018. The applicant had not surrendered before the

Police Station and was not available for investigation. He was

absconding. The trial against the co-accused had proceeded. When

the petition came up for hearing before this Court, about 20

witnesses were examined. The FIR is lodged by Rajesh Vichare. The

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incident is dated 4th October, 2012. Brother of first informant was

assaulted by the accused. The case of the prosecution is that the

incident had occurred at the instance of the Vijay Kedare, who

wanted to have control of development project of a slum in the area.

Mangesh, Rajesh and Yogesh were part of one group of slum

dwellers. Whereas Vijay Kedare wanted to have control and

handover the project to another builder. Yogesh was Chief Promoter

of the Sainath Co-operative Housing Society. Vijay Kedare wanted to

establish his supremacy. It is alleged that, applicant was one of the

associates of the Vijay Kedare. He was in touch with him. He was

instrumental in giving threats and had facilitated commission of

offence. Approval was granted under Section 23(1)(a) of MCOC Act

to apply provisions of Section 3(1)(ii), 3(2), and 3(4) of MCOC Act.

First charge-sheet was filed on 24 th March, 2013. Sanction was

obtained under Section 23(2) of MCOC Act. On 24th September, 2013

sanction was granted under Section 23(2) of MCOC Act against the

other accused.

8. Statements of witnesses were recorded under Section

164 of Cr.P.C. The accused tried to extort money from Yogesh

Vichare. The material on record discloses that the applicant and

others met Mangesh Vichare and told him to pay Rs. 5 Lakhs and

meet Vijay Kedare. The applicant and others had planned to assault

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Mangesh. The prosecution alleges direct connection of the applicant

with the assault at the behest of Vijay Kedare. The division bench of

this Court while dismissed Criminal Writ Petition No. 4350 of 2013

vide order dated 22nd March, 2018 has observed that taking into

account the statements which forms part of charge-sheet, it cannot

be said that there is no material to proceed against applicant.

Prosecution is rightly launched against him. The material shows that

the crime syndicate was led by Vijay Kedare. The accused including

the applicant were his associates and members of crime syndicate. It

was further observed that the trial against co-accused had proceeded.

It is disturbing that the applicant had not cooperated with the

investigation and did not surrender before the Police. For more than

4 years he was absconding. The record shows that the applicant was

granted protection by this Court on 18 th March, 2014 till 19th March,

2014. It was extended till 21st March, 2014. The record does not

show that the protection was extended. Thus, after March, 2014 also

more than 4 years have passed, he was not available for

investigation. It is pertinent to note that the charge-sheet contains

material against the applicant. The case of the co-accused who were

granted bail can be distinguished. The applicant was absconding for

more than 4 years. Hence, no case for grant of bail is made out.

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                                     ORDER

Criminal Bail Application No. 457 of 2020 is rejected and stands disposed off accordingly.

                                                  (PRAKASH D. NAIK, J.)




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