Shital @ Chivali Kuber @ Kubrya ... vs The State Of Maharashtra
2021 Latest Caselaw 16017 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                    CRIMINAL APPELLATE JURISDICTION

                      BAIL APPLICATION NO.820 0F 2021

SHITAL @ CHIVALI KUBER @ KUBRYA KALE )...APPLICANT

         V/s.

THE STATE OF MAHARASHTRA                             )...RESPONDENT


Mr.Dilip Shind i/b. Mr.Sachin Bhavar, Advocate for the Applicant.
Mr.H.J.Dedhia, APP for the Respondent - State.


                                        CORAM : V. G. BISHT, J.

RESERVED ON : 15th NOVEMBER 2021 PRONOUNCED ON : 18th NOVEMBER 2021

P.C. :

1 The present application has been moved by the

applicant under Section 439 of the Code of Criminal Procedure in

Crime No.656 of 2019 registered with Police Station Tembhurni,

for offences punishable under Section 396, 397, 364, 201, 327

and 400 read with 34 of the Indian Penal Code (IPC) and under

Section 66B of Information and Technology Act as also under

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Section 3(1)(i)(ii), 3(2) and 3(4) of Maharashtra Control of

Organized Crime Act.

2 The case of the prosecution is that informant and one

Ahmad Abdulla Shaikh ("deceased" for short) were friends.

Since the wife of deceased had died, he was desirous of

performing second marriage. Accordingly, informant searched a

match for him on You tube application and sent information /

bio-data of deceased on the said You tube website. On 4 th

December 2019 informant received a call from an unknown

person in respect of said marriage proposal and that unknown

person also said that there is one lady aged 32 years whose

husband is dead and she is ready to accept marriage proposal.

Even the deceased had a talk with the relatives of the lady.

3 According to the prosecution on 7th December 2019

informant and deceased, as asked by the people from the bride

side, reached near Hotel Satyajit. From there they were escorted

on two motorcycles by two persons. After travelling for about 15

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kms. they stopped the motorcycles in a lonely place in a field of

onion crop. The prosecution alleges that thereafter four

unknown persons in age group of 25 to35 came there armed with

swords, knife in their hands and started assaulting the informant

and the deceased with fists blows and from the handle side of

weapons. They even snatched gold chain and gold ring from the

person of deceased and removed mobile and cash amount of

Rs.3,000/- from informant's pocket. Even they snatched handbag

from deceased in which gold ornaments were there. It is further

alleged that, at that point of time, two women also came and ran

away after taking their bags. As the deceased had sustained

injuries, he was rushed to Primary Health Center, Tembhurni

where he was declared dead. First Information Report (FIR)

accordingly came to be lodged.

4 Mr.Dilip Shinde, learned counsel for the applicant,

submits that the applicant is neither a gang leader nor a member

of any organized crime syndicate and therefore, prosecution of

the applicant under the provisions of MCOC Act itself is not

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maintainable in law. The pre-sanction and post sanction issued

by the Sanctioning Authority against the present applicant is not

proper and within the frame work of Section 23(1) and Section

23(2) of the MCOC Act. According to the learned counsel, cases

shown to be pending against the gang leader Raju Sadrya Kale

are of individual nature and the present applicant is not co-

accused in any of those cases and therefore application of

provisions of MCOC Act is unwarranted. The learned counsel

then submits that the applicant is in jail since 18th December

2019. She has one breast feeding child and other four children

and there is no one to take care of them. The applicant is ready

to abide by all terms and conditions if so imposed by this Court.

5 The learned counsel placed reliance in Mahipal Singh

vs. Central Bureau of Investigation and Another 1, Dinesh

Bhondulal Baisware vs. State of Maharashtra2 and Prasad

Shrikant Purohit vs. State of Maharashtra and Another3.

1 (2014) 11 Supreme Court Cases 282 2 2016(4) Bom.C.R. (Cri) 149 3 (2015) 7 Supreme Court Cases 440

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6 Mr.Dedhia, the learned APP, on the other hand,

vehemently opposed the submissions and submitted that the

present applicant is duly identified in the Test Identification

Parade. During the course of investigation certain recovery has

also been made. There is sufficient material on record to

establish that the applicant is involved in serious offence and the

provisions of MCOC Act are rightly attracted.

7 Perused the FIR and investigation papers. If the FIR

is read carefully, then the only role attributed to the applicant

and another woman accused is that during the course of incident

they appeared from the field of jowari crop and ran away with

the bags belonging to the informant and deceased. Except this,

no other role is attributed on the part of the present applicant.

The only question to be determined is whether the prosecution

has been able to satisfy prima facie about the applicability of the

provisions of MCOC Act qua the applicant.

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8             In the case of Mahipal Singh (supra) it has been held

by the Hon'ble Apex Court that in order to constitute an offence

of organised crime, it has to be established that the accused is

involved in "continuing unlawful activity" defined in Section 2(1)

(d) of MCOC Act i.e. more than one charge-sheets in respect of

offence of nature specified in Section 2(1)(d) have been filed

against him before competent Court within preceding period of

10 years and the Court has taken cognizance of such cases. The

Hon'ble Apex Court further held that for invocation of offence of

organized crime, ingredients constituting that offence must exist

on the date the crime is committed or detected. Similar

observations can be noted from the judgments in Dinesh

Bhondulal Baisware (supra) and Prasad Shrikant Purohit (supra).

9 I have carefully gone through the sanction accorded

by Additional Director General of Police (L & O), Mumbai on 5 th

June 2020. Although at Serial Nos.3 and 4 the name of the

present applicant is mentioned, however, at Serial No.5 the

Sanctioning Authority has observed that there are more than one

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charge-sheets against the accused persons namely Raju @ Rajiv

@ Gandhi Sadrya Kale, the leader of the alleged syndicate and

Kuber @ Kubrya Sadrya Kale for an offence punishable with an

imprisonment for a period of more than 3 years, before the

competent Courts within the preceding period of 10 years and

that the concerned Courts have taken cognizance of such

offences. However, no such observation is appearing in respect of

the present applicant. Even otherwise, learned APP has not been

able to point out during the course of argument as to how the

applicant is involved in the organized crime within the meaning

of Section 2(e) of the MCOC Act. Merely because the applicant

has been identified in the Test Identification Parade it does not

mean that she is a part of organized crime syndicate and is

actively involved in commission of organized crime. Thus, prima

facie, the ingredients of Section 2(1)(d) of the MCOC Act are

missing. This being so, by necessary implication, the prosecution

has not been able to prima facie establish that the case of

applicant falls within the scope of Section 21(4) of the MCOC

Act.

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10             For the aforesaid reasons, I am inclined to grant this

application. Hence, the following order :

ORDER

(i) The application is allowed.

(ii) Applicant - Shital @ Chivali Kuber @ Kubrya Kale shall be

released on bail in Crime No.656 of 2019 registered with

Police Station Tembhurni, on her executing P.R.Bond in the

sum of Rs.25,000/- with one or two sureties in like amount.

(iii) The applicant shall not tamper with prosecution evidence.

(iv) The applicant shall regularly attend dates fixed by the Court

in her case unless exempted in accordance with law.

(v) The applicant shall co-operate with the Court for expeditious

disposal of the case.

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(vi) Bail before trial Court.

(vii) The application stands disposed off in aforesaid terms.

                                         (V. G. BISHT, J.)




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