Malhari Balasaeb Palve vs The State Of Maharashtra
2022 Latest Caselaw 1233 Bom

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                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                      CRIMINAL APPELLATE JURISDICTION

                                      BAIL APPLICATION NO.1923 OF 2021

                     MALHARI BALASAHEB PALVE                         )...APPLICANT

                              V/s.

                     THE STATE OF MAHARASHTRA                        )...RESPONDENT


                     Mr.Ritesh Thobde, Advocate for the Applicant.
                     Mrs.P.P.Shinde, APP for the Respondent - State.


                                                     CORAM : V. G. BISHT, J.

RESERVED ON : 17th DECEMBER 2021 PRONOUNCED ON : 31st JANUARY 2022

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

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Digitally signed by ARTI ARTI VILAS VILAS KHATATE KHATATE Date:

2022.02.03 12:10:17 +0530 BA-1923-2021.doc

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 to 35 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.Ritesh Thobde, 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 sanction order 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 11th December 2019. He is 19

years old young boy and if is continued to remain behind the

bars, his entire career will get spoiled. The applicant is ready to

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

5 Mrs.P.P.Shinde, 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

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provisions of MCOC Act are rightly attracted.

6 Perused the First Information Report and

investigation papers as also the Affidavit-in-Reply filed by the

Sub-Divisional Police Officer, Akluj Division, Solapur. If the FIR is

read carefully, then it would be seen that the allegation of assault

and robbery is made against unknown persons without specifying

the role of each of them vis-a-vis their physical description.

Therefore, at this stage, it cannot be opined about the specific

role of the applicant.

7 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.

8 In the case of Mahipal Singh vs. Central Bureau of

Investigation and Another1 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 1 (2014) 11 Supreme Court Cases 282

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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

vs. State of Maharashtra2 and Prasad Shrikant Purohit vs. State of

Maharashtra and Another3.

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

charge-sheets against the accused persons namely Raju @ Rajiv

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

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@ 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 he 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         The next circumstance pressed into service by the

learned APP is the recovery of motorcycle at the instance of

applicant. Admittedly, there is recovery of the motorcycle used in

the commission of offence at the instance of applicant, pursuant

to the Disclosure statement given by him under Section 27 of the

Indian Evidence Act but that circumstance alone will not prove

his major role in the alleged crime. This incriminating

circumstance will have to be read along with other evidence

which may be adduced at the time of trial by the prosecution.

11 It is also to be noted here that there is no recovery of

ornaments which were allegedly robed at the time of incident,

and therefore, this aspect also will have to be kept in mind.

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

application. Hence, the following order :

ORDER

(i) The application is allowed.

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(ii) Applicant - Malhari Balasaheb Palve 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 his case unless exempted in accordance with law.

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

disposal of the case.

(vi) Bail before trial Court.

(vii) Parties to act on copy of this order duly authenticated by the

Sheristedar of this Court.

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(viii) It is made clear that the observations made herein are

prima facie and the trial Court shall decide the case on its

own merit, in accordance with law, uninfluenced by the

observations made in this order.

(ix) The application is allowed in the aforesaid terms and stands

disposed off accordingly.

                                         (V. G. BISHT, J.)




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