Yuvraj Ramchandra Jadhav vs The State Of Maharashtra
2022 Latest Caselaw 7827 Bom

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                                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       CRIMINAL APPELLATE JURISDICTION
                                         BAIL APPLICATION NO.1158 OF 2021

                      Yuvraj Ramchandra Jadhav                                 ...      Applicant
SWAROOP
SHARAD                      versus
PHADKE
Digitally signed by
                      The State of Maharashtra                                 ...      Respondent
SWAROOP SHARAD
PHADKE
Date: 2022.08.11

                      Mr. Aniket U. Nikam with Mr. Piyush Toshnival with Mr. Aashish Satpute, Mr. Vivek
14:25:19 +0530



                      Arote, Mr. Amit Icham, for Applicant.
                      Ms. P.N.Dabholkar, APP, for State.

                                                  CORAM:        N.J.JAMADAR, J.

                                                  RESERVED ON :                17th JUNE, 2022
                                                  PRONOUNCED ON :              11th AUGUST, 2022

                      P.C.

1. The Applicant - accused No.2, who is arraigned in C.R.No.681 of 2019

registered with Satara Police Station for the offences punishable under Sections 385,

387 and 389 read with Section 34 of the Indian Penal Code and Sections 3(1)(ii), 3(2),

3(4) of the Maharashtra Control of Organized Crime Act, 1999 (the MCOC Act, 1999)

has preferred this application to enlarge him on bail.

2. The indictment against the Applicant can be stated as under :

2.1 Dattatraya Ramchandra Jadhav - accused No.1 and the brother of the

Applicant, is a dreaded gangstar. He is the leader of an organized crime syndicate.

Number of crimes have been registered against Dattatraya Ramchandra Jadhav,

accused No.1. The modus operandi of Dattatraya Jadhav is to indulge in continuous

unlawful activity by committing the offences with different sets of co-accused. The

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Applicant is also a history sheeter. A number of crimes have also been registered

against the Applicant. The Accused No.1, the leader of organized crime syndicate,

along with the Applicant and other associates, has committed numerous offences and

created a reign of terror in and around Satara District. In two of the crimes registered

against Dattatraya Jadhav - accused No.1, the provisions of the MCOC Act, 1999 have

been invoked. The Accused No.1 has since been in custody as an under-trial prisoner.

Yet the accused No.1 has been indulging in continuous unlawful activities by

committing offences through his associates and hire-lings.

2.2 Mr. Anil Mahaling Kasture, the first informant, lodged a report with

Satara Police Station on 23rd September, 2019 alleging that in the year 2014, he and

accused No.1 Dattatraya Jadhav were incarcerated and tried for having committed

offences of robbery and extortion, by one Shinde, a builder by profession. The first

informant and the co-accused Dattatraya Jadhav, were acquitted after 17 months of

incarceration as under-trial prisoners on 17th October, 2016. After about a month

thereof, the accused No.1 met the first informant in the court premises and demanded

the first informant to pay a sum of Rs.3,00,000/- towards the expenses which the

accused No.1 Dattatraya Jadhav had allegedly incurred for defending the first

informant in the said trial. Initially, the first informant did not cave in to the demand

of Dattatraya Jadhav - Accused No.1. However, Dattatraya Jadhav, continued to

demand the said amount, laced with threat of dire consequences. After Dattatraya

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Jadhav - accused No.1 came to be arraigned for the offences punishable under the

provisions of MCOC Act, 1999, he started to make the demand and give the threats by

making use of the phones of the relatives of the co-accused.

2.3 A month prior to the lodging of the report, the Applicant - Yuvraj

Ramchandra Jadhav - Accused No.2, brother of the accused No.1 - Dattatraya Jadhav,

demanded the first informant to pay the said amount of Rs.3,00,000/- and threatened

to cause harm to the first informant as despite repeated demands, the said amount was

not paid.

2.4 The first informant alleges that on 20 th September, 2019 at about 11.00

a.m., while he and his friend Rajesh were passing from in front of Irrigation

Department Office, Satara, the Applicant intercepted them. The Applicant asked the

first informant about the payment of Rs.3,00,000/- as demanded by Dattatraya Jadhav,

Accused No.1. When the first informant expressed his inability to pay the said

amount, the Applicant handed over a chit purported to be sent by Dattatraya Jadhav -

accused No.1 from prison. The Applicant asked the first informant to read the

contents of the said chit and pay the amount of Rs.3,00,000/-, lest the first informant

would be falsely implicated in an offence or eliminated. The first informant read the

chit in the presence of Rajesh Kamble. In the said chit, Dattatraya Jadhav - accused

No.1 gave an ultimatum to the first informant to pay the sum of Rs.3,00,000/- within 8

days. In case of non-payment, Dattatray Jadhav - accused No.1 threatened to

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implicate the first informant in serious offences and also threatened him out of his life.

The first informant, thus, approached the police and lodged the report. The said chit

came to be seized by the police.

2.5 The Applicant came to be arrested on 23rd September, 2019. In the

meanwhile, the investigation commenced. With the prior approval of the competent

authority, offences punishable under the provisions of the MCOC Act, 1999 were

added. Based on the previous sanction under Section 23(1)(b) of the MCOC Act,

1999, the learned Special Judge took cognizance of the offences punishable under

Sections 385, 387 and 389 read with Section 34 of the Indian Penal Code and Sections

3(1)(ii), 3(2), 3(4) of the MCOC Act, 1999.

3. The Applicant has preferred this application with the assertion that the

allegations in the instant FIR are unworthy of credence. The first demand was

allegedly made in the year 2016 and yet the FIR came to be lodged in the year 2019.

Thus, there is an inordinate and unexplained delay. Even otherwise, the offence

punishable under Section 387 of the IPC, cannot be said to have been prima facie

made out. In any event, the invocation of the provisions contained in MCOC Act,

1999, against the Applicant is wholly unwarranted. Having regard to almost four years

of incarceration, the Applicant deserves to be enlarged on bail.

4. An Affidavit in Reply is filed by the State. It is contended that there is

material to show direct involvement of the Applicant in the alleged extortion. Apart

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from the first informant, Mr. Rajesh Kamble, whose statement has also been recorded

under Section 164 of the Code of Criminal Procedure, 1973, categorically attributes

the role of threatening the first informant to pay the amount of Rs.3,00,000/-, lest he

would be eliminated, and handing over a chit purported to be sent by Dattatraya

Jadhav - Accused No.1. It is further contended that having regard to the antecedents

of Dattatraya Jadhav, accused No.1, against whom as many as 29 crimes have been

registered, and that of the Applicant against whom as many as 9 crimes have been

registered apart from the subject offences, the invocation of the provisions of the

MCOC Act, 1999 cannot be faulted at. As the bar contained in Section 21(4) of the

MCOC Act, 1999 comes into play, the Applicant does not deserve to be released on

bail.

5. I have heard Mr. Nikam, learned Counsel for the Applicant and Ms.

Dabholkar, learned APP for the State at some length. With the assistance of the

learned Counsel for the parties, I have perused the report under Section 173 of the

Code and the documents annexed with it. The learned Counsel for the Applicant and

the learned APP took me through the statements of the relevant witnesses and the

material on record in support of their respective submissions.

6. The learned Counsel for the Applicant would urge that the time lag of

almost three years in reporting the matter to the police, if computed from the first

demand purportedly in the month of October, 2019, cannot be said to be

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inconsequential. This delay, according to the learned Counsel for the Applicant,

substantially erodes the veracity of the claim of the first informant. Mr. Nikam would

further urge that, at the highest, the role attributed to the Applicant is that of handing

over a chit allegedly given by the accused No.1. As the said act was not accompanied

with any fear of injury to the first informant or use of any criminal force, the offences

punishable under Sections 385 and 387 of the IPC, cannot be said to have been prima

facie made out.

7. Mr. Nikam would further urge that the fact that few crimes have been

registered against the Applicant, in the past, is not by itself of determinative

significance. There is no element of commonality in the subject offences and the

crimes which have been registered against the Applicant, in the past. Therefore, it

cannot be said that the Applicant indulged in an organized crime. To bolster up this

submission, Mr. Nikam placed reliance on the judgment of this Court in the case of

Girish Kumaran Nayar V/s. State of Maharashtra 1 and an order in the case of

Bhupendra @ Glolu @ s/o Suryakant Borkar V/s. State of Maharashtra2.

8. As against this, Ms. Dabholkar, learned APP, after taking the Court

through the definitions of continuous unlawful activity, organized crime and organized

crime syndicate, would urge that in the facts of the case, having regard to the sheer

number of crimes registered against Dattatraya Jadhav, Accused No.1 and the

1 BA 2241 of 2018 decided on 17th Feb. 2021

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Applicant, an inference becomes inescapable that Dattatraya Jadhav and the Applicant

have been indulging in continuous unlawful activity, with impunity. In the

circumstances, according to Ms. Dabholkar, the antecedents and the conduct of

Dattatraya Jadhav and the Applicant squarely fall within the dragnet of the offences

punishable under the provisions of the MCOC Act, 1999 and, in a sense, the instant

case presents a practicable application of the utility of the provisions contained in the

MCOC Act, 1999 in arresting the scourge of organized crime.

9. Ms. Dabholkar further submitted that in respect of the subject crime,

there is ample material against the Applicant in the form of the statement of the first

informant, duly supported by independent witness Rajesh kamble, and the Chit which

contains the threat administered by Dattatraya Jadhav, accused No.1, and also

evidences the manner in which Dattatraya Jadhav and the Applicant have been

indulging in the organized crime.

10. To begin with, it may be apposite to consider the material pressed into

service against the Applicant qua the subject offences. As indicated above, the first

informant alleged that on 21st September, 2019 the Applicant accosted him and made a

demand of a sum of Rs.3,00,000/- and threatened to eliminate him if the demand was

not fulfilled. The Applicant allegedly handed over a chit addressed by Dattatraya

Jadhav - accused No.1 to the first informant. The contents of the said chit form part

of the FIR. The said chit has also been seized during the course of investigation.

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11. At this juncture, it would be suffice to note that the said chit, in addition

to containing the demand of a sum of Rs.3,00,000/-, constitutes intimidation of grave

nature. Dattatraya Jadhav - accused No.1 threatened to implicate the first informant in

an offence so that the first informant is incarcerated for not less than 10 years and also

threatened him out of his life.

12. The submission on behalf of the Applicant that the role attributed to the

Applicant is only that of handing over the said chit, does not seem to be sustainable to

the fullest. In addition to the handing over of the said chit, the first first alleged that,

the Applicant threatened to pay the said amount of Rs.3,00,000/- lest he would be

eliminated. Mr. Rajesh Kamble, the alleged eye witness to the he said occurrence,

lends support to the claim of the first informant. It is pertinent to note that the first

informant alleged that even a month prior to the occurrence, the Applicant had

demanded the sum of Rs.3,00,000/- claiming that despite Dattatraya Jadhav -

accused No.1, having given numerous messages, the said amount was not paid and, in

the event of non payment, the first informant would not be spared.

13. It is true there is an allegation that Dattatraya Jadhav, accused No.1,

made the demand for the first time in the year 2016 and repeatedly made demands

even after he was arrested and detained for having committed the offences under the

MCOC Act, 1999. The fact that the first informant did not lodge report in respect of

the said attempt of extortion, does appear to be germane. However, the fact that FIR

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was not lodged promptly is required to be appreciated in the light of the fact that

Dattatraya Jadhav, accused No.1, had been detained in two cases wherein the

provisions of the MCOC Act, 1999 have been applied. Secondly, the attempt of

extortion by the Applicant, by himself threatening the first informant with dire

consequences, and handing over the chit allegedly addressed by Dattatraya Jadhav,

Accused No.1, prima facie heightened the level of perception of the threat being given

effect to. As there is a prima facie material especially the statement of Rajesh Kamble,

the alleged eye witness, in support of the said allegations, at this juncture, it would be

rather difficult to discard the aforesaid prosecution version.

14. This brings in the frame the aspect of invocation of the provisions

contained in the MCOC Act, 1999. The Affidavit in Reply indicates that as many as

29 cases have been registered against Dattatraya Jadhav, accused No.1 the alleged gang

leader, albeit commencing from the year 1997. The competent authority, however,

seems to have taken into account the following nine cases registered against Dattatraya

Jadhav - accused No.1 for invoking the provisions of the MCOC Act, 1999 :

Sr.No. Police Station, C.R.No. And Sections Name of the Accused 1 Satara City, C.R.No.404/2011, Sections Dattatraya Ramchandra Jadhav 302, 364, 120B, 109, 143, 147, 149 of IPC 2 Satara City C.R.No.11/2013, Sections 307, Dattatraya Ramchandra Jadhav 353, 332, 33, 143, 147, 148, 149, 109 of IPC Yuvraj Ramchandra Jadhav 3 Satara City, C.R.No.776/2014, Sections Dattatraya Ramchandra Jadhav 387, 326, 452, 427, 143, 147, 148, 504, 506 of IPC and Sections 37(1) (3) and 135 of the Mumbai Police Act.

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      4                Satara City, C.R.No.795 of 2014 Sections Dattatraya Ramchandra Jadhav
                       384, 506 read with Section 34 of IPC
      5                Satara City, C.R.No.796/2014, Sections Dattatraya Ramchandra Jadhav
                       384, 506 read with Section 34 of IPC
      6                Satara City, C.R.No.837/2014, Sections Dattatraya Ramchandra Jadhav
                       395, 120B, 452, 427, 323, 504, 506 of IPC
                       and Sections 37(1) (3) and 135 of the
                       Mumbai Police Act.
      7                Pusegaon, C.R.No.2/2018 Sections 143, Dattatraya Ramchandra Jadhav
                       147, 384, 452, 504, 506, 507 and Sections
                       3(1)(ii) and 3(2) and 3(4) of MCOC Act,

      8                Jat , C.R.No.146/2018 Sections 307, 353, Dattatraya Ramchandra Jadhav
                       224, 225, 332, 336, 337, 143,n147, 149, 504, and

506 of IPC and Sections 37(1) (3) and 135 Yuvraj Ramchandra Jadhav of the Mumbai Police Act and Sections 3 and 4 of the Prevention of Damage to Public Property Act, 1984.

9 Bhoij, C.R.No.158/2018, Sections 384, Dattatraya Ramchandra Jadhav 385, 386, 387, 364A, read with Section 34 of IPC and Section 25(3) of the Arms Act and Sections 3(1)(ii) and 3(2) and 3(4) of MCOC Act, 1999

15. In all the above 9 cases, chargesheets were lodged in the jurisdictional

courts and the cognizance of the offences has been taken by the jurisdictional Courts.

16. It would be contextually relevant to note that in the Affidavit in Reply,

the prosecution has arrayed the following cases registered against the Applicant, apart

from the subject offence :

Sr. No. Police Station Crime Sections Case No. Status No.

      1          Satara City      5/2002    454, 380, 406 of IPC           RCC 131 of Acquitted

      2          Satara City      216/2012 143, 147, 148, 504, 506 of IPC SCC 1273 Acquitted
                                                                          of 2012

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      3       Satara City    312/2012 143, 147, 447, 504, 506 of SCC 1144 Acquitted
                                      IPC                        of 2013
      4       Satara City    9/2013    353, 34 of IPC                SCC 1368 Pending
                                                                     of 2013
      5       Satara City    11/2013   307, 353, 332, 333, 143, 147, RCC 364 Acquitted.
                                       148, 149, 109 of IPC          of 2013
      6       Satara City    337/2018 143, 149, 323, 504, 506, 290 RCC 383 of Pending
                                      of IPC and 135 of 2018
                                      Maharashtra Police Act.
      7       Satara City    304/2019 12-A Gambling Act              SCC 2341 Pending
                                                                     of 2019
      8       Satara City    305/2019 65(e), 68 of Prohibition Act   SC 2339 of Pending

      9       Satara City    353/2019 188 of IPC                                Pending
      10      Jath, Sangli   146/2018 307, 353, 224, 225, 332, 336, RCC 246 Pending
                                      337, 143, 147, 149, 504, 506 of of 2018
                                      IPC and Sections 3 and 4 of
                                      Government            property
                                      Destruction Act, Section 135
                                      of Maharashtra Police Act

17. Mr. Nikam, learned Counsel for the Applicant submitted that as far as

the offence registered at Sr. No.9, the Applicant came to be discharaged by an order

dated 31st July, 2021. Whereas, in the case shown at Sr. No.10, the Applicant has been

released on bail by this Court by an order dated 30 th January, 2021. Mr. Nikam laid

emphasis on the fact that in none of the previous crimes, the Applicant was charged

for the offences punishable under Sections 385, 387 of IPC. Thus, according to Mr.

Nikam, there is no element of commonality in the previous crimes registered against

the Applicant and the subject offences. Resultantly, the provisions of the MCOC Act,

1999 could not have been invoked against the Applicant.

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18. I would deal with the last submission a little later. However, at this

juncture, the antecedents of both Dattatraya Ramchandra Jadhav, Accused No.1 and

the Applicant - Yuvraj Ramchandra Jadhav, prima facie, indicate that the accused

No1. And the Applicant have been continuously indulging in criminal activities. As far

as Dattatraya Jadhav, accused No.1, the antecedents speak for themselves. The

Applicant has been charged with varied offences like committing house breaking, theft

in a dwelling house, rioting and other offences in prosecution of the common object of

the unlawful assembly, attempt to commit murder and criminal intimidation etc. The

submission that the aforesaid continuous course of criminal activities present the

Applicant as a history sheeter, prima facie, cannot be said to be without substance.

19. At this stage, the submission sought to be canvassed on behalf of the

Applicant based on the element of commonality between the previous registered

crimes and the subject offence, is required to be appreciated. Indeed, in none of the

previous crimes registered against the Applicant, the accusation is of having

committed offences punishable under Sections 385 and 387 of IPC. Mr. Nikam placed

strong reliance on the following observations of the learned Single Judge in the case of

Girish Kumaran Nayar (supra) :

"12. Be that as it may, in the back-drop, I assume, there are fourteen previous offences registered against the applicant. Now let me see whether, previous offences registered against the applicant, were committed by him singly or jointly as a member of crime syndicate or on behalf of crime syndicate, so as to constitute, "continuing unlawful activity"; AND whether

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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 filed 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 filed and cognizance has not been taken. As such, for want of clarification from the prosecution I keep the Crime No.282 of 2006 out of consideration for ascertaining whether this offence was committed in continuation of unlawful activity within the meaning of Section 2(c) of the MCOCA. So far as other offences registered against the applicant are concerned, prima-facie, prosecution could not establish nexus between such offence 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 enmity; whereas all past offences were in the nature of theft and/or house breaking committed individually or with others. Evidence does not suggest that the past offences 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, offence committed in the past has prima-facie no nexus to present offence, wherein the MCOCA has been invoked. In the case of State of Maharashtra v. Bharat Shantilal Shah and Others 3, the Hon'ble Apex Court has held that offences, 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 filed by the prosecution does not show that previously registered offences have anything in common with the offences registered in the present crime.

13. It may be stated, that mere number of filing 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-

3     (2008) 13 SCC 5

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sheets were to be enough to constitute offence of organised crime, it could have offended 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 offences 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 offence punishable with imprisonment of three years or more;

ii a charge-sheet should consist of averments, alleging unlawful activity undertaken either singly or jointly by the accused;

iii as a member of organized crime syndicate or on behalf of such syndicate;

iv the cognizance of such offence 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 definition of clause of "continuing unlawful activity" indicates that it is not a normal charge-sheet, alleging commission of cognizable offence 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 efforts were made by the prosecution to show that past two offences in respect of which charge-sheets were filed, 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 Brahmajeetsing Sharma v. State of Maharashtra & Anr. 4, 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."

4     (2005) ALL MR (Cri) 1538 (S.C.)

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20. The aforesaid pronouncement, in my considered view, cannot be

construed to lay down the proposition that there should an element of similarity in the

previous offences and the subject offence in the sense that the offences ought to be of

the 'same kind', as envisaged by Section 219 of the Code of Criminal Procedure, 1973.

The aforesaid observations are required to be appreciated in the light of the context in

which the Supreme Court made the observations in the case of State of Maharashtra V/

s. Bharat Shantilal Shah and Ors. 5. The observations of the Supreme Court in the

case of Bharat Shah (supra) touching upon the allegation of commission of similar

offences were in the context of the challenge to the constitutional validity of sub-

Section (5) of Section 21 of the MCOC Act, 1999, which contains the additional

restrictions in the matter of release on bail, if it is noticed that the person was on bail

in an offence under the MCOC Act, 1999 or under any other Act on the date of the

commission of the subject offence.

21. This becomes abundantly clear from the following observations of the

Supreme Court in the case of Bharat Shah (supra) :

"62. Having recorded our finding in the aforesaid manner, we now proceed to decide the issue as to whether a person accused of an offence under MCOCA should be denied bail if on the date of the offence he is on bail for an offence under MCOCA or any other Act. Section 21(5) of MCOCA reads as under :

21. (5) Notwithstanding anything contained in the Code, the accused shall not be granted bail if it is notice by the court that he was on bail in an offence under

5 2008 (13) SCC 5

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this Act or under any other Act, on the date of the offence in question."

63. As discussed above the object of MCOCA is to prevent the organized crime and, therefore, there could be reason to deny consideration of grant of bail if one has committed a similar offfence once again after being released on bail but the same consideration cannot be extended to a person who commits an offence under some other Act for commission of an offence under some other Act would not be in any case in consonance with the object of the Act which is enacted in order to prevent only organized crime.

64.We consider that a person who is on bail after being arrested for violation of law unconnected with MCOCA, should not be denied his right to seek bail if he is arrested under MCOCA, for it cannot be said that he is a habitual offender. The provision of denying his right to seek bail, if he was arrested earlier and was on bail for commission of an offence under any other Act, suffers from the vicve of unreasonable classification by placing in the same class, offences which may have nothing in common with those under MCOCA, for the purpose of denying consideration of bail. The aforesaid expression and restriction on the right of seeking bail is not even in consonance with the object sought to be achieved by the Act and, therefore, on the face of the provisions this is an excessive restriction.

65. The High Court found that the expression "or under any other Act" appearing in Section is arbitrary and discriminatory and accordingly struck down the said words from sub-section (5) of Section 21 as being violative of Articles 14 and 21 of the Constitution. We upheld the order of the High Court to the extent that the words "or under any other Act" should be struck down from sub-section (5) of Section 21.

66.In view of the aforesaid discussions, we allow the appeals of the State Government, insofar as the constitutional validity of Sections 13 to 16 of MCOCA is concerned. We upheld the validity of the said provisions. The decision of the High Court striking down the words "or under any other Act" from sub-section (5) of Section 21 of the Act is however, upheld. The parties to bear their own costs."

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22. The aforesaid observations of the Supreme Court, thus, make it clear

that the element of commonality of the offences was primarily considered for the

purpose of testing vires of the expression "or under any other Act" appearing in sub

section (5) of Section 21, extracted in the aforesaid paragraph, and the decision of the

High Court striking down the words "or under any other Act" from sub-section (5) of

Section 21 of the MCOC Act was upheld as it suffered from the vice of unreasonable

classification by placing in the same class offences which may have nothing in common

with those under MCOCA for the purpose of denying consideration of bail.

23. The aforesaid observations, in my opinion, cannot be considered to

mean that it is the requirement of law that the previous offences registered against a

person, against whom MCOCA has been invoked, ought to be of the same type as the

subject offence in which MCOCA is invoked. If the requirements of organized crime,

as defined under Section 2(1)(e) of the MCOC Act, 1999 are fulfilled, then the fact

that there is no commonality between the previous offences and the subject offence

may not be of decisive significance. If the submission of Mr. Nikam is taken to its

logical end , then a person accused of a series of bodily offences ,which fall within the

dragnet of continuing unlawful activity, cannot be prosecuted under MCOC Act, 1999,

if the subject offence in which MCOC Act, 1999 is invoked, is the offence against the

property. This would warrant reading into the definition of 'organized crime',

additional requirements which are not spelled out by the definition of

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'organized crime'.

24. For the foregoing reasons, I am not persuaded to accede to the

submission on behalf of the Applicant based on lack of commonality. The material on

record, on the contrary, indicates that in the totality of circumstances, especially in the

light of the antecedents of Dattatraya Jadhav, accused No.1, as well as the Applicant,

the invocation of the provisions of the MCOC Act, 1999 is, prima facie, justifiable.

The interdict contained in Section 21(4) of the MCOC Act, 1999 thus, comes into

play.

25. In the face of the material on record, it would be rather difficult to form

an opinion albeit tentatively that the Applicant is not guilty of the offence. Secondly,

the antecedents of the Applicant are such that they do not induce the necessary

assurance to record that he is not likely to commit identical offences if released on bail.

Thus, the twin conditions to exercise the discretion in favour of the Applicant cannot

be said to have been, prima facie, satisfied.

26. The submission on behalf of the Applicant that having regard to the

period of incarceration and the punishment which the offences punishable under

Section 385, 387 and 389 of the Indian Penal Code entail, the continuous detention of

the Applicant may fall foul of his right of speedy trial merits consideration. The

Applicant is in custody for almost three years. It would, therefore, be expedient to

direct the Special Court seized with the MCOC case arising out of C.R.No.681 of

SSP 18/19 ba 1158 of 2021.doc

2019 to make an endeavour to conclude the trial expeditiously, and also grant liberty to

the Applicant to revive the prayer for bail in the event trial is not completed within a

reasonable period.

26. Hence, the following order :

ORDER

(i) The Application stands rejected.

(ii) The learned Special Judge, Pune, seized with Sessions Case

No.125 of 2020 arising out of C.R.No.681 of 2019 is requested to expedite the trial in

the said case and conclude the same as expeditiously as possible and preferably before

30th June, 2023.

(iii) The Applicant shall render necessary cooperation in expeditious

conclusion of the trial and shall not seek adjournment.

(iv) In the event the trial is not completed by 30 th June, 2023 the

Applicant shall be at liberty to revive the prayer for bail.

(v) By way abundant caution, it is clarified that the observations

hereinabove are confined to the consideration of the entitlement for bail and they may

not be construed as an expression of opinion on the guilt or otherwise of the applicant

or co-accused and the learned Special Judge shall not be influenced by any of the

observations in the further proceedings in the Sessions case.

                                                           ( N.J.JAMADAR, J. )

SSP                                                            19/19