Bombay High Court
Shaikh Salim S/O Shaikh Amir vs Rizwan Khan S/O Shafik Khan And ... on 7 June, 2022
Bench: V. V. Kankanwadi
{1} BA 283 OF 2022 & ORS.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
BAIL APPLICATION NO.283 OF 2022
WITH
APPLN/1265/2022 IN BA/283/2022
Mohammad Rizwan S/o. Mohd. Rafi ..Applicant
VERSUS
The State of Maharashtra ..Respondent
...
WITH
BAIL APPLICATION NO.284 OF 2022
WITH
APPLN/1266/2022 IN BA/284/2022
1. Rizwan Khan S/o. Shafi Khan
2. Abu Ali Choush S/o. Amjad Chaush ..Applicants
VERSUS
. The State of Maharashtra ..Respondent
...
Advocate for Applicant in BA/283/2022 : Mr.G.R. Syed
Advocate for Applicants in BA/284/2022 : Mr.N.S.Ghaneiar
APP for Respondent : Mr.V.M.Kagne
Advocate for Informant : Mr.S.R.Pande
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE OF RESERVING ORDER : 11th April, 2022
DATE OF PRONOUNCING ORDER : 7th June, 2022
ORDER :-
1. Criminal Applications fled for assist to Public Prosecutors
are allowed.
{2} BA 283 OF 2022 & ORS.
2. The applicants in both the bail applications have been
arrested in connection with Crime No.0139 of 2021, registered
with Kotwali Police Station, Dist.Parbhani, for the ofence
punishable under Sections 307, 324, 109, 143, 147, 148, 149,
336, 337 of the Indian Penal Code (IPC), under Sections 4, 25 of
the Arms Act, under Sections 37(1), 37(3), 135 of the
Maharashtra Police Act and under Sections 3(1)(ii), 3(2), 3(4) of
the Maharashtra Control of Organised Crime Act (hereinafter
referred to as "the MCOC Act"). They have been posed as
accused Nos.1, 2 and 3 in the First Information Report (FIR).
Initially, when the FIR was registered, it was under sections of the
IPC, Arms Act and Maharashtra Police Act. Later on, the ofences
under the MCOC Act were came to be added. Now, the
investigation is over and charge-sheet has been fled before the
learned Special Court under the MCOC Act. The present
applications have been fled under Section 439 of the Code of
Criminal Procedure.
3. Heard Mr.G.R.Syed, learned Advocate for the applicant in
Bail Application No.283 of 2022, Mr.N.S.Ghaneiar, learned
Advocate for the applicants in Bail Application No.284 of 2022,
Mr.V.M.Kagne, learned APP for the respondent-State and
Mr.S.R.Pande, learned Advocate for the original informant.
{3} BA 283 OF 2022 & ORS.
4. It has been vehemently submitted on behalf of the
applicants that injured Imran in this case is having criminal
baciground. The FIR has been lodged by his friend Shaiih Salim
Shaiih Amir. He is accused in complaint lodged by brother-in-law
of the son of applicant in Bail Application No.283 of 2022. He has
suppressed the fact that infact injured Imran had planned the
attaci on the applicant Mohammad Rizwan Mohd. Rafi. He was
holding pistol and he had infact fred towards the applicant and
therefore, in the said FIR fled vide Crime No.147 of 2021, ofence
under Section 307 etc. of the IPC came to be registered against
Imran as well as informant Shaiih Salim. Further, these two
persons were also booied in another Crime No.138 of 2021
which had occurred by about one hour prior to the alleged
incident. At that time, accused Imran had opened the bullet fre
on road towards somebody, however in that process, he had
damaged the car of the informant in Crime No.138 of 2021. That
fact has also been suppressed by the present informant Shaiih
Salim. The applicants are innocent. Even as per the prosecution
story, the entire material has been collected and there is no
iuestion of further interrogation of the applicants. The charge-
sheet includes the orders under Sections 23(1)(a) and 23(2) of
the MCOC Act which infact runs into 1000 pages but does not
satisfy the test of Section 2(e) of the MCOC Act. There is no such
{4} BA 283 OF 2022 & ORS.
crime which can be said to have been committed by the
applicants as member of organised crime. None of them have
received any fnancial benefts. Therefore, the provisions of the
MCOC Act are not applicable here. Co-accused has been
released on bail by the learned Special judge and therefore, on
the ground of parity also the applicants deserve to be released
on bail.
5. The learned Advocates for the applicants relied on the
decision of the Full Bench of the Hon'ble Apex Court in State of
Maharashtra Vs. Bharat Shanti Lal Shah [2008 (8) Supreme 372]
wherein it was observed that "The object of MCOCA is to prevent
the organised crime and a perusal of the provisions of the Act
under challenge would indicate that the said law authorizes the
interception of wire, electronic or oral communication only if it is
intended to prevent the commission of an organised crime or if it
is intended to collect the evidence to the commission of such an
organized crime." The constitutional validity of Sections 13 to 16
of the MCOC Act was upheld in this case. However, while taiing
note of Section 2 of MCOC Act, following observations have been
made :
"8. Section 2 of the MCOCA contains the defnitions.
The word "abet" is defned in clause (a) of sub-Section (1) to
mean and include the communication or association with
any person with the actual knowledge or having reason to
{5} BA 283 OF 2022 & ORS.
believe that such person is engaged in assisting in any
manner, an organized crime syndicate, the passing on or
publication of, without any lawful authority any information
likely to assist the organized crime syndicate and the
passing on or publication of or distribution of any document
or matter obtained from the organized crime syndicate and
also rendering of any assistance whether fnancial or
otherwise, to the organised crime syndicate. Clause (d) of
sub-Section (1) defnes the expression "continuing unlawful
activity" to mean an activity prohibited by law for the time
being in force, which is a cognizable ofence punishable with
imprisonment of three years of more, undertaken either
singly or jointly, as a member of an organized crime
syndicate or on behalf of such syndicate in respect of which
more than one charge sheets have been fled before a
competent court within the preceding period of ten years
and that court has taken cognizance of such ofence. Clause
(e) of sub-Section (1) defnes the expression "organised
crime" to mean any continuing unlawful activity by an
individual, singly or jointly, either as a member of an
organised crime syndicate or on behalf of such syndicate, by
use of violence or threat of violence or intimidation or
coercion, or other unlawful means, with the objective of
gaining pecuniary benefts, or gaining undue economic or
other advantage for himself or any other person or
promoting insurgency. The term "organised crime
syndicate" is defned under clause (f) of sub- Section (1) to
mean a group of two or more persons who, acting either
singly or collectively, as a syndicate or gang indulge in
activities of organised crime."
{6} BA 283 OF 2022 & ORS.
6. The learned Advocate for the applicant in Bail Application
No.283 of 2022 has relied on bunch of decisions of the Division
Bench of this Court. In the case of Sherbahadur Akram khan Vs.
The State of Maharashtra [MANU/MH/0938/2006] it is held that
"the prosecution under the MCOC Act is not maintainable. The
accused only can be prosecuted under the general law i.e. Indian
Penal Code when there is no evidence which could be seen that
has given any pecuniary or undue economic or other advantage
to the accused himself or to any other person". The ratio in
State of Maharashtra Vs. Bharat Baburao Gavhane and Ors [2006
ALL MR (Cri) 2895] was confrmed. The other citations which
have been relied by the learned Advocate are as follows :
1. Bhupendra @ Golu s/o. Suryakant Borkar Vs. State of
Maharashtra, through P.S.O. Ajni, Nagpur [Order passed on
19.08.2016 in Criminal Application (BA) No. 608 of 2016].
2. Ganesh Janardhan Gore alias Ganya Vs. State of
Maharashtra [Order passed on 01.11.2018 in Criminal Bail
Application No. 93 of 2018].
3. Sonya Shaikh @ Jalaluddin Nijamuddin Shaikh Vs. The
State of Maharashtra [Order passed on 24.02.2021 in
Criminal Bail Application No.940 of 2020].
4. Sachin s/o. Namdeo Rathod and others Vs. State of
Maharashtra [Judgment passed on 27.11.2018 in Criminal
Appeal No. 732 of 2018,].
{7} BA 283 OF 2022 & ORS.
5. Shri Girish Kumaran Nayar Vs. The State of
Maharashtra [Judgment passed on 17.02.2021 in Bail
Application No. 2241 of 2018,].
6. Sambhaji s/o. Pandurang Sathe Vs. The State of
Maharashtra [Order passed on 20.12.2019 in Bail
Application No. 1454 of 2019,].
7. Kamal s/o. Ganeshlal Yadav Vs. The State of
Maharashtra [Order passed on 20.12.2019 in Bail
Application No. 1517 of 2019,].
8. Mangesh Manik Kanchan Vs. The State of Maharashtra
[Order passed on 13.07.2015 in Bail Application No. 1696 of
2014 and connected matter]
9. Madan s/o. Ramkisan Gangwani (dead) - Shamsundar
s/o. Ramkisan Gangwani Vs. The State of Maharashtra
[Judgment passed on 26.03.2009 in Criminal Appeal No. 308
of 2022 and connected matters].
10. State Vs. Satya Prakash (Order passed on 03.11.2011
in Cr.M.C. No. 2138 of 2010).
11. Vinayak s/o. Gopalsa Satpute Versus The State of
Maharashtra [Order passed on 11.10.2021 in Bail
Application No. 239 of 2021].
7. In all these cases, taiing into consideration the facts of the
case, this Court either learned Single Bench or Hon'ble Division
Bench have allowed the Bail Applications of the respective
{8} BA 283 OF 2022 & ORS.
applicants. Various authorities have been considered in all the
above said pronouncements. However, even at this stage, it can
be said that some of those orders can be distinguished taiing
into consideration the facts of the case as well as mainly that in
some of the cases there was no previous criminal antecedents or
charge-sheet fled against those applicants or the concerned
Benches hold that there was no direct evidence against the
applicants. In Criminal Appeal No.732 of 2018 it was found that
no immediate actions were taien for invoiing the provisions of
the MCOC Act and since June 2018 even the charge-sheet was
also not fled till November, 2018. Other lapses were found by
this Court and then it was held that those lapses are hampering
the liberty of the applicants under Article 21 of the Constitution
of India. Further, in the bunch of cases in Criminal Appeal
No.308 of 2002 and companion matters, they were the appeals
and already the evidence was before the Court for the
assessment. The Hon'ble High Court of Delhi in the case of State
Vs. Satya Prakash [MANU/DE/4298/2011] has held that "as per
Section 2(1)(e) of the MCOC Act, it was mandatory that two
cases against said person should have been registered under
provisions, wherein, there was a direct or indirect pecuniary gain
out of crime. In absence of that, provisions of MCOC Act did not
apply". The view taien in the case of Satya Prakash (supra)
{9} BA 283 OF 2022 & ORS.
appears to be a contrary view taien by the Hon'ble Division
Bench of this Court in Jagan Gagansingh Nepali @ Jagya and
Another (supra). These authorities can be further elaborated
later on taiing into consideration the facts of the present cases.
8. At the cost of repetition, it can be said that the tenor of the
submissions on behalf of the learned Advocates for the
applicants is that there is no previous case involving pecuniary
gain against the applicants and therefore, the provisions of the
MCOC Act will not be applicable. They, therefore, prayed for
release of the applicants on bail.
9. Per contra, the learned APP well assisted by learned
Advocate for the informant submitted that perusal of the entire
charge-sheet would show that there is ample evidence against
the three applicants. Apart from the injured Imran himself and
also the informant, who had received injuries, there are eye
witnesses to the incident as well as there is CCTV footage by the
near-by CCTV clearly depicting the specifc role attributed to
accused Nos.1, 2 and 3. Even if we consider the earlier alleged
act on the part of the injured Imran, that does not give the
applicants any right to taie law in hand. It cannot be said that
whatever act that has been done by the applicants was the part
of right of private defence because the events those have been
{10} BA 283 OF 2022 & ORS.
stated would show that it was the single act alleged in the FIR.
Cross complaint will not give any advantage to the applicants.
The contents of the charge-sheet would show that there is
evidence to the efect that Rizwan Khan Shaiih Khan is the gang
leader and he has members of his gang who have committed
ofences in the area of Kotwali as well as Nanal Peth Police
Station of Parbhani. His modus operandi is to include new
members in his team and to create sufcient organization to
create terror in the mind of general public. They are indulged in
ofences against body, ofences against Public Ofcers and also
against Police by abusing them, threatening them with inife,
sword, iron rod etc. His gang wanted to establish its own
position in the area. There are about 11 cognizable and 3 non-
cognizable ofences registered in the last 10 years against the
members of the gang and by giving a detailed order, permission
has been granted by the competent authority for taiing action
under the MCOC Act. Even in the present case, act of each of the
applicants can be seen from the statements of the witnesses
under Sections 161 and 164 of the Code of Criminal Procedure as
well as the confessional statement under Section 18, which has
been voluntarily given, the WhatsApp messages, phone calls etc.
in between them. Further Rizwan Khan Shafi Khan i.e. gang
leader has bani account in HDFC Bani, Station Road Branch,
{11} BA 283 OF 2022 & ORS.
Parbhani in which he has savings of Rs.20,00,000/- to
Rs.22,00,000/-.
10. As regards applicant Abu Ali Chaush Amjad Chaush is
concerned, apart from specifc role attributed to him in the
present crime, there is evidence against him of discovery of inife
under Section 27 of the Indian Evidence Act. He has one
cognizable ofence registered against him apart from other
electronic evidence.
11. As against applicant Mohammad Rizwan Mohd. Rafi apart
from his involvement in the present crime that he had assaulted
the victim Imran with sword, there are other evidence in the
nature of discovery and about three cognizable and one non-
cognizable ofences are registered against him. He has also
given confessional statement under Section 18 of the MCOC Act.
He is also involved in getting land in his name under a Sale-deed
by showing a very less price and by threatening the owner.
Statement of that witness has been recorded. All these
activities are being carried out by gang leader to establish their
supremacy and therefore, their activities will have to be curbed.
In the case of Jagan Gagansingh Nepali @ Jagya and another
(supra), the Hon'ble Full Bench of this Court held that "we
answer the issue that the terms "other advantage" cannot be
{12} BA 283 OF 2022 & ORS.
read as ejusdem generis with the words "pecuniary benefts" and
"undue economic." Therefore, the law is crystal clear on the
point that it is not necessary that the activity of the gang
member should be to have pecuniary advantage only. Further,
the Hon'ble Division Bench of this Court in Govind Sakharam
Ubhe Vs. State of Maharashtra [2009 (3) Bom. C.R. (Cri.) 144]
held as under :
"35. It is now necessary to go to the defnition of
continuing unlawful activity. Section 2(1)(d) defnes
continuing unlawful activity to mean an activity prohibited
by law for the time being in force, which is a cognizable
ofence punishable with imprisonment of three years or
more, undertaken either singly or jointly as a member of an
organized crime syndicate or on behalf of such syndicate in
respect of which more than one charge-sheet have been
fled before a Competent Court within the preceding ten
years and that court have taken cognizance of such ofence.
Thus, for an activity to be a 'continuing unlawful activity' -
a) the activity must be prohibited by law;
b) it must be a cognizable ofence punishable with
imprisonment of three years or more;
c) it must be undertaken singly or jointly;
d) it must be undertaken as a member of an organized
crime syndicate or on behalf of such syndicate
{13} BA 283 OF 2022 & ORS.
e) in respect of which more than one charge-sheet have
been fled before a competent court.
36. The words in respect of which more than one charge-
sheet have been fled cannot go with the words a member
of a crime syndicate' because in that case, these words
would have read as in respect of whom more than one
charge-sheet have been fled'."
12. Therefore, it is not necessary that more than one charge-
sheet should have been fled against each member of the gang
or crime syndicate. Taiing into consideration role played by the
present applicants also and the ofence has been committed in
broad day light in order to establish supremacy, there is prima-
facie case against the applicants and therefore, they do not
deserve to be released on bail.
13. At the outset, as regards the issue that for some economic
advantage or for pecuniary advantage the gang should have
been established or should receive the benefts is not the basic
criteria and the view taien by the Hon'ble Full Bench of this
Court in Jagan Gagansingh Nepali @ Jagya and another (supra)
has been endorsed recently by the Hon'ble Apex Court in
Abhishek Vs. State of Maharashtra in Criminal Appeal No.869 of
2022 arising out of SLP (Crl.) No.1157 of 2022, decided on 20 th
May, 2022 wherein it has been observed as under :
{14} BA 283 OF 2022 & ORS.
"We have no hesitation in endorsing the views of Full Bench
decision of Bombay High Court in the case of Jagan
Gagansingh Nepali @ Jagya (supra). Looking to the object
and purpose of this enactment, the expression other
advantage cannot be read in a restrictive manner and is
required to be given its full efect. The High Court has
rightly said that there could be advantage to a person
committing a crime which may not be directly leading to
pecuniary advantage or beneft but could be of getting a
strong hold or supremacy in the society or even in the
syndicate itself."
14. Therefore, any contrary decision by this Court in the above
referred decisions cited on behalf of the applicants cannot be
made applicable here now in view of the recent decision by the
Hon'ble Apex Court. Further in view of the decision in Govind
Sakharam Ubhe (supra), it is not even necessary that there
should be more than one charge-sheet fled against all the
accused persons. Here in this case the prosecution's case is that
there are about 11 cognizable and 3 non-cognizable ofences are
registered against the members of Rizwan Khan Shafi Khan
gang. Under such circumstance, there is no necessity to go in
much deep as to whether the provisions of the MCOC Act are
attracted or not.
15. Turning to the merits of the case, no doubt there appears
to be a cross complaint vide Crime No.147 of 2021. It is to be
{15} BA 283 OF 2022 & ORS.
noted that the said FIR came to be lodged on 4th July, 2021 on
the basis of the complaint lodged by applicant Rizwan Khan
Shafi Khan. However, that is in respect of incident dated 24 th
June, 2021 and perusal of the said FIR would show that he has
not given any reason for the delay in lodging the FIR. The FIR in
present case has been lodged promptly on 25 th June, 2021 at
about 02:07 hours in respect of incident that had occurred at
about 14:45 hours on 24th June, 2021. In the FIR also specifc
role has been attributed to the applicants. It is stated that
applicant Mohammad Rizwan @ MR had come running infront of
house of one Syed Maulana where the informant Shaiih Salim
and the informant Imran had stopped as Imran had received a
phone call. Mohammad Rizwan @ MR started saying that why
Imran had chased Ali Chaush. He caused Imran to lie down on
the ground and at that time applicants Ali Chaush and Rizwan
Khan Shafi Khan came running. Ali Chaush was holding inife
and Rizwan Khan was holding sword. Mohammad Rizwan tooi
the sword from the hands of Rizwan Khan and gave blows on
Imran. At that time, Mohammad Rizwan's father came and he
threw stones towards Imran. Informant than ran away from that
spot and called Imran's brother. After certain persons came, the
assailants fed away. The investigation is over and the
statements of the witnesses can be seen from the charge-sheet.
{16} BA 283 OF 2022 & ORS.
Apart from statement of the informant, eye witnesses under
Section 164 of the Code of Criminal Procedure, there is also
evidence in the nature of statements of injured Imran under
Section 161 of Code of Criminal Procedure as well as Section 164
of the Code of Criminal Procedure. Statement of injured Imran
would show that he was assaulted by Mohammad Rizwan by
sword and Rizwan Khan has also assaulted him resulting in
cutting of his last fngure. Mohammad Rizwan has given him 10
to 15 assaults of sword causing injury to his hands, legs and
baci. Applicant Abu Ali Chaush had stabbed him with inife on
his baci. If we consider the Medico Legal Certifcate then it
mentions about eight injuries out of which six injures are
grievous injuries possible by sharp and pointed object and two
injuries are simple injuries. There was also fracture to his Tibia
Fibula. There is further evidence in the nature of statement of
one Mohammad Shaiil Ansari s/o Mohammad Mahemood Ansari
in consonance with the statement of injured Imran as well as the
informant. Further evidence that has been collected in the form
of bani account statements, criminal history and involvement of
the applicants and other accused in various crimes etc.
16. The applicants are also relying upon the FIR lodged by one
Shaiih Ismail Shaiih Yunus vide Crime No.138 of 2021,
registered with Kotwali Police Station, Dist.Parbhani, for the
{17} BA 283 OF 2022 & ORS.
ofence punishable under Sections 279, 337, 427 read with
Section 34 of the IPC and Sections 4, 7 punishable with Section
25 of the Indian Arms Act. In this FIR, it has been stated by the
said informant that he alongwith his friend had come to Parbhani
for attending marriage ceremony in his four wheeler. They were
near Primary Health Center for coming towards Darga. At that
time, one white colour Activa came in high speed from opposite
direction. Activa gave dash to a boy who was selling Balloons.
The Scooter Driver as well as pillion rider fell down and many
people gathered. This informant Shaiih Ismail stopped his car
and watching the activities. He states that certain persons from
the mob started capturing rider as well as pillion rider of Activa
but the pillion rider started opening fre rounds in the air. People
thereafter got frightened and get themselves away and those
two persons then managed to fee away from the spot. The
pillion rider, thereafter, in order to avoid chasing, opened fre and
one bullet hit the right side door of car of the informant. He
came to inow from the people that the person, who had opened
the fre, is Shaiih Imran Shaiih Amir and the driver of the vehicle
was Shaiih Salim Shaiih Amir. Even if we taie the contents of
the said FIR as it is, it will not give any advantage to the
applicants. The law will taie course against the accused named
therein but none of the applicants herein were present at the
{18} BA 283 OF 2022 & ORS.
said spot when the said informant Shaiih Ismail was present and
was complaining about the incident.
17. Now, that belated FIR No.147 of 2021 lodged by the
applicant Rizwan Khan Shafi Khan will have to be considered as
he wanted to taie advantage of the FIR lodged by Shaiih Ismail.
Applicant Rizwan Khan states that he alongwith his friends were
near Kadrabad plot at about 02:00 p.m.. He received a phone
call from Abu Ali Chaush stating that Shaiih Imran and Shaiih
Salim were chasing him because of some earlier dispute by
holding pistol in their hand and therefore, he should come to
Darga Road. Rizwan Khan alongwith Asef Khan came near Darga
but they were not able to fnd Abu Ali Chaush. On phone call he
got location of Abu Ali Chaush near Parva gate. At that place,
Abu Ali Chaush met Rizwan Khan and disclosed that after
abusing him, Shaiih Imran and Shaiih Salim had showed him
pistol and therefore, he started running. Then, they had fred
near Darga. Applicant Rizwan Khan again says that he, Abu Ali
Chause, Asef Khan and Zia Inamdar were coming towards Abu Ali
Chause's house at about 02:45 p.m. They met Shaiih Imran
and Shaiih Salim and it was found that Shaiih Imran and Shaiih
Salim were assaulting Mohammad Rizwan and his father near the
house of Maulana Syed by showing pistol. When the others went
to rescue, Shaiih Imran had opened fre from the pistol but it did
{19} BA 283 OF 2022 & ORS.
not cause any injury to anybody. However, all of them then fed
away from that spot. At the cost of repetition, it can be
mentioned that the said alleged cross complaint is belated and
has been lodged after Rizwan Khan was arrested by Police from
Manwat. No advantage can be given to him at this stage in
respect of that FIR.
18. Thus, it can be seen that there is prima-facie evidence to
support the charge for the ofence under the provisions of MCOC
Act as well as independently there is evidence against the
present applicants. They have taien active part in the crime and
taiing into consideration the baciground, possibility of similar
ofence by them after their release on bail cannot be ruled out
and therefore, this cannot be taien as a ft case to exercise the
discretionary powers of this Court under Section 439 of the Code
of Criminal Procedure. Hence, Bail Applications stand rejected.
( SMT. VIBHA KANKANWADI )
JUDGE
SPT
