Ankush Ram Gonate vs The State Of Maharashtra
2022 Latest Caselaw 701 Bom

                                                                      CRIBA552-2020.DOC

                                                                                  Santosh
                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     CRIMINAL APPELLATE JURISDICTION


                                      BAIL APPLICATION NO. 552 OF 2020

                      Ankush Ram Gonate                                    ...Applicant
                                             Versus
                      State of Maharashtra                               ...Respondent

                      Ms. Shubhangi Parulekar, for the Applicant.
                      Mr. S. H. Yadav, APP for the State/Respondent.
SANTOSH
SUBHASH
KULKARNI
Digitally signed by
SANTOSH SUBHASH
                                                      CORAM: N. J. JAMADAR, J.

KULKARNI Date: 2022.01.20 11:37:09 +0530 RESERVED ON: 17th JANUARY, 2022 PRONOUNCED ON: 19th JANUARY, 2022 (Video Conferencing) ORDER:-

1. The applicant, who is arraigned in CR No.239 of 2019,

registered with Paud Police Station, for the offences punishable

under Sections 302 and 364 read with Section 34 of the Indian

Penal Code, 1860 ("the Penal Code") and Section 3(1)(ii) and 3(4)

of the Maharashtra Control of Organised Crime Act, 1999 ("the

MCOC Act"), has preferred this application to enlarge him on

bail.

2. Initially, CR No.239 of 2019 was registered for the offence

punishable under Section 302 of the Penal Code only, on the

basis of the report lodged by Baban Hulawale, the Police Patil of

village Ravade, Taluka Mulshi, District Pune, to the effect that a

CRIBA552-2020.DOC

dead body of an unknown person with marks of injuries on the

face and neck by means of sharp weapon, was found in the field

of one Vasant Hulawale. During the course of initial

investigation, it transpired that Mayur Bhagwat, (hereinafter

referred to as, "the deceased"), a resident of Erandwana

Gavthan, Karve Road, Pune, was missing. Smt. Jyoti Bhagwat,

the wife of the deceased, identified the dead body to be that of

the deceased.

3. Jyoti informed the police that the deceased had obtained a

sum of Rs.20,000/- from Vishal Desai, the co-accused, who was

dealing in the business of illegal money lending. In the month of

January, 2019, co-accused Vishal Desai and Pappu @ Yogesh

Dabhade and Suraj Dhokale, who were notorious for rowdy

behaviour, visited the house of the deceased and threatened the

deceased out of his life if the loan amount was not repaid along

with agreed interest. Jyoti claimed to have pacified them and

paid a sum of Rs.5,000/-. On the next day, her brothers-in-law

Rajesh and Kiran, assured the co-accused Vishal, Yogesh and

Suraj that they would repay the loan amount availed by the

deceased.

4. Jyoti further informed that on 12 th May, 2019, at about

8.45 pm. the co-accused Vishal, Yogesh and Suraj came to their

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house in a Ford Icon car. The deceased was taken away by the

co-accused in the said car. The deceased did not return home

till 15th May, 2019. While Smt. Jyoti and her brothers-in-law

were on their way to police station to lodge report, a police

official informed them to visit the morgue at Sasoon Hospital as

an unidentified dead body was kept thereat. Jyoti visited

Sasoon Hospital and identified the dead body to be that of her

husband Mayur. Hence, Jyoti alleged that the deceased was

abducted and murdered by co-accused Vishal, Yogesh, Suraj

and their associates for failure to repay the loan amount availed

from Vishal.

5. During the course of investigation, it further transpired

that the applicant Ankush Gonate also accompanied the co-

accused on the night intervening 12th May, 2019 and 13th May,

2019. The accused came to be arrested. The accused made

discovery leading to the recovery of the clothes, which he wore

at the time of the occurrence.

6. The investigation further revealed that co-accused Suraj

Dhokale was the leader of the organised crime syndicate,

comprising of rest of the accused, including the applicant,

which indulged in organised crime. Thus, with the approval of

the competent authority, under Section 23(1) of the MCOC Act

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the offences punishable under Sections 3(1)(ii) and 3(4) were

added. Post completion of investigation, charge-sheet came to

be lodged against the accused including the applicant.

7. The applicant has preferred this application on the ground

that there is no material whatsoever to connect the applicant

either with the organized crime syndicate or the crime in

question. No overt act has been attributed to the applicant by

any of the witnesses. Nor any weapon of offence has been

recovered at the instance of the applicant. The confessional

statement of the co-accused Vishal merely referred to the fact

that the applicant also travelled in the car in which the

deceased was allegedly abducted. The material pressed into

service by the prosecution against the accused, even if taken at

par, does not prima facie indicate the complicity of the

applicant.

8. An affidavit-in-reply is filed by Mr. Rajendra Kadam,

Deputy Superintendent of Police, in opposition to the prayer for

bail. Placing reliance on the statement of witness Sandeep

Dattu Palaskar and the confession of accused no.2 Vishal Desai,

recorded under Section 18 of the MCOC Act, it is contended that

there is adequate material to sustain the involvement of the

applicant in the crime. An apprehension is also expressed that

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in the event the applicant is released on bail, he would indulge

in identical proscribed activity and threaten the witnesses.

9. I have heard Ms. Parulekar, the learned Counsel for the

applicant, and Mr. Yadav, the learned APP for the State, at some

length. Perused the material on record.

10. Ms. Parulekar strenuously submitted that there is no

material which would indicate, even remotely, that the applicant

had any role to play either in the abduction or murder of the

deceased. Taking the Court through the statement of Jyoti, the

wife of the deceased and Sandeep Dattu Palaskar, a relative of

co-accused Yogesh, and the confessional statement of co-

accused Vishal, Ms. Parulekar urged that, at the highest, an

inference can be drawn that the applicant accompanied the co-

accused on the night of occurrence. In the absence of any other

incriminating circumstance, like recovery of the weapon of

offence or that the deceased was lastly seen in the company of

the accused/applicant, the said fact, by itself, is not sufficient to

incriminate the accused. In any event, according to Ms.

Parulekar, there is not a shred of material to show that the

applicant is a member of the organised crime syndicate, led by

co-accused Suraj Dhokale. There are no criminal antecedents

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to the credit of the applicant. Thus, the applicant deserves to

be enlarged on bail.

11. In opposition to this, Mr. Yadav, the learned APP,

submitted that the injuries found on the person on the

deceased, as recorded in the postmortem report, indicate that

the deceased was brutally done to death. Refuting the

submission on behalf of the applicant that there is no material

to connect the accused with the crime, the learned APP would

urge that the clothes recovered pursuant to the disclosure made

by the accused had black reddish stains. Mr. Yadav further

urged that since the applicant is arraigned for the offences

punishable under MCOC Act, the interdict contained in Section

21(4) of the MCOC Act comes into play and the applicant is not

entitled to be enlarged on bail unless the conditions stipulated

in clause (b) are satisfied.

12. I have given anxious consideration to the rival

submissions. First and foremost, it is imperative to note that

Jyoti, the wife of the deceased, never referred to the applicant as

the person who ever visited her house as an associate of co-

accused Vishal or Suraj. Secondly, on 12th May, 2019, only co-

accused Vishal, Yogesh and Suraj had visited her house and

took the deceased away in Ford Icon car. Thirdly, the statement

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of Sandeep Palaskar, pressed into service by the prosecution,

simply refers to the presence of the applicant with the

abovenamed co-accused and that the extra-judicial confession

was allegedly made by Yogesh Dabhade. Fourthly, without

delving into the aspect of the veracity, reliability and

truthfulness of the confessional statement made by co-accused

Vishal Desai, and construing it rather generously, it is pertinent

to note that co-accused Vishal appears to have stated that after

the deceased was made to accompany them, they picked up the

applicant Ankush as well. However, no role of assault, of

whatsoever nature, is attributed to the applicant Ankush. In

contrast, the role of inflicting blows by means of sickle is

attributed to co-accused Yogesh Dabhade and Vishal himself.

Lastly, the alleged discovery of the clothes, which the applicant

wore at the time of the occurrence, also prima facie appears to

be bereft of any incriminating tendency as, on the one hand, it

is recorded in the seizure memo that the clothes had black

reddish stain and, on the other hand, the investing agency has

not yet obtained the chemical analyst's report to establish the

nexus between those clothes and the crime.

13. The aforesaid circumstances lead to a legitimate inference

that, at the highest, the material would indicate that the

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applicant accompanied the co-accused at the time of the alleged

occurrence. In the absence of any other circumstance, at this

stage, it would be rather hazardous to draw an inference that

the applicant shared the common intention to abduct and

eliminate the deceased.

14. I am conscious that in view of the indictment for the

offences punishable under Section 3(1)(ii) and 3(4) of the MCOC

Act, the interdict contained in Section 21(4) of the MCOC Act

comes into play. A person accused of the offences punishable

under the MCOC Act, cannot be enlarged on bail unless the

Court is satisfied that there are reasonable grounds for believing

that the accused is not guilty of such offence and that he is not

likely to commit any offence while on bail. I am also mindful of

the proposition that in view of the definition of "continuing

unlawful activity" under Section 2(1)(d) of the MCOC Act, it is

not the requirement of law that two charge-sheets for the

cognizable offenes punishbale with imprisonment for three years

or more need to be filed against each of the members of such

syndicate. It is the membership of the organised crime

syndicate, which makes a person liable under the MCOC Act.

What is of significance is the nexus or the link of the person

with organised crime syndicate. The linchpin of the offence of

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organised crime is the nexus with the organised crime

syndicate.

15. On the aforesaid touchstone, reverting to the facts of the

case, evidently, seven crimes were shown to have been registered

against the co-accused Suraj Dhokale, the alleged gang leader.

In contrast, no offence, apart from CR No.239 of 2019 leading to

instant prosecution, is registered against the applicant. It is not

the prosecution case that the applicant is arraigned in any of

the offences registered against Suraj Dhokale, the alleged

kingpin, or other alleged members of the organised crime

syndicate, as a co-accused. Nor is it a case of the prosecution

that offences have been registered against the petitioner

individually.

16. The genesis of the occurrence is also of some salience.

The deceased allegedly borrowed money from co-accused Vishal

Desai, who had been allegedly dealing in the business of illegal

money lending. There is not a shred of material to indicate that

the applicant is also involved in the said illegal money lending

business or any other unlawful activity.

17. In the aforesaid view of the matter, it can be legitimately

inferred that prima facie there is next to no material to

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establish the nexus between the applicant and the organised

crime syndicate.

18. In the totality of the circumstances, it appears that the

embargo against release on bail contained in sub-section (4) of

Section 21 may not operate qua the applicant with full force and

vigour. A profitable reference, in this context, can be made to

the judgment of the Supreme Court in the case of Ranjitsingh

Brahmjeetising Sharma vs. State of Maharashtra and another1,

wherein the approach of the Court in the matter of,

consideration of the prayer for bail in the face of the interdict

contained in Section 21(4) of the MCOC Act was delineated.

19. The observations in paragraph no.44 are instructive and,

hence, extracted below:

"44. The wording of Section 21(4), in our opinion, does not lead to the conclusion that the Court must arrive at a positive finding that the applicant for bail has not committed an offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the Legislature. Section 21(4) of MCOCA, therefore, must be construed reasonably. It must be so construed that the Court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the Court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in futuro must be an offence under the Act and not any other offence.

Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of

1(2005) 5 Supreme Court Cases 294.

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the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence."

20. Applying the aforesaid ratio to the facts of the case at

hand an inference becomes inescapable that the applicant has

made out a prima facie case for grant of bail. The apprehension

on the part of the prosecution can be taken care of by imposing

appropriate conditions. Hence, I am persuaded to exercise the

discretion in favour of the applicant.

21. Hence, the following order.

:Order:

      (i)     The application stands allowed.

      (ii)    The   applicant,      Ankush       Ram    Gonate,     be

released on bail in MCOCA Special Case No.53 of 2019, arising out of CR No.239 of 2019, registered with Paud Police Station, on furnishing a PR Bond in the sum of Rs.25,000/- and a surety in the like amount to the satisfaction of the learned Special Judge.

(iii) The applicant shall not tamper with the prosecution evidence and/or give threat or inducement to any of the prosecution witnesses.

(iv) The applicant shall furnish his current address and contact number and intimate

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change in address and contact number to the learned Special Judge.

(v) The applicant shall regularly attend the proceedings before the learned Special Judge.

(vi) The applicant shall not leave India without prior permission of the learned Special Judge.

(v) By way of abundant caution, it is clarified that the observations hereinabove are made for the limited purpose for determining the entitlement of the applicant for bail and they shall not be construed as an expression of opinion on the merits of the matter and the Special Court shall not be influenced by any of the observations made hereinabove while determining the guilt of the applicant and/or co-accused.

[N. J. JAMADAR, J.]