Sayyed Javed Ali Ansar Ali vs The State Of Maharashtra And ...
2022 Latest Caselaw 5057 Bom

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           BENCH AT AURANGABAD


     APPLICATION FOR CANCELLATION OF BAIL NO.121 OF 2021

                         SAYYED JAVED ALI ANSAR ALI
                                   VERSUS
                   THE STATE OF MAHARASHTRA AND ANOTHER
                                     .....

                 Advocate for Applicant : Mr. Menezes Joslyn
                 APP for Respondent No.1 : Mr. V. M. Kagne
             Advocate for Respondent No.2 : Mr. Ameya N. Sabnis
                                     .....


                                     CORAM : SMT.VIBHA KANKANWADI, J.

                                     Date of Reserving The Order              :
                                     24-03-2022

                                     Date of Pronouncing The Order :
                                     07-06-2022

ORDER :

1. Present application has been filed by the original informant under

Section 439 (2) of Cr.P.C. to challenge the order dated 05-05-2021

passed in Criminal Bail Application No.325 of 2021 by learned Special

Judge, MCOC Act, Beed, in Crime No.403 of 2019, registered with

Shivaji Nagar Police Station, Beed, for the offence punishable under

Section 302, 143, 147, 120-B, 201, 195-A of Indian Penal Code read

with Section 3/25, 4/25 of the Arms Act, r.w. Section 7 of the Criminal

Amendment Act, read with Section 135, 37 (1), 37 (3) of the

2 ACB 121-2021

Maharashtra Police Act, read with Section 3(1)(i), 3(2), 3(4) of the

Maharashtra Control of Organized Crime Act, 1999.

2. Heard learned Advocate Mr. Menezes Joslyn A.for applicant,

learned Advocate Mr. A. N. Sabnis for respondent No.2, and learned

APP Mr. V. M. Kagne for respondent No.1-State.

3. It has been vehemently submitted on behalf of the applicant

that the learned Judge has failed to consider the basic aspects

required for dealing with an application under Section 439 of Cr.P.C.

In his application, present respondent No.2 had taken the plea of

alibi on the ground that he was present before a Notary at Pune on

19-09-2019 which was the date of incident in Beed. He also

submitted documents stating that he was present in the house of ex-

minister Mr. Jaydatta Kshirsagar at Mumbai on 18-09-2019 for

giving representation of the delegation of Beed Auto-rickshaw Union.

This has been considered as a proof by the learned Special Judge

and the learned Special Judge has also come to a conclusion that the

provisions of Section 2 (d) and 2 (e) of MCOC Act are not prima

facie made out in view of the fact that only one case is pending

against the present applicant that too filed in the year 2011 and the

present crime has been committed in the year 2019, it does not

3 ACB 121-2021

amount to continuing unlawful activity with objective of gaining

pecuniary benefits or gaining undue economic or other advantage for

himself or any other person by using violence or threat of violance or

intimidation. The criteria that has been applied by the learned

Special Judge for releasing the applicant on bail was wrong. He had

not seen the documents on record. Statements of two witnesses

were considered who were alleged to be the eyewitnesses and had

not taken the name of the present applicant, but he failed to

consider that there are statements of other eyewitnesses who have

specifically stated that the present applicant was holding a scythe in

his hand. Even his name is reflected in the FIR with the same

weapon and for the same act. The applicant with co-accused who

were holding deadly weapons like Kukri, Scythe, big knife, knife,

sword etc., were giving blows by those weapons on the person of

the deceased. Such statement has been given by witness Shaikh

Afroz Shaikh Bashir under Section 161 and 164 of Cr.P.C. Though

his name has not been taken by Shaikh Nisar @ Babbar Shaikh

Maheboob, it can be seen that he had come to the place of incident

after hearing the noise but then another witness Shaikh Ayub @ Titi

Shaikh Yakub has stated that the present applicant holding deadly

weapon was rushing along with others towards deceased.

4 ACB 121-2021

Thereafter, Shaikh Ayub fled from the said place shouting " Hkkxks xqTtj

vkSj iqjs vkx;s-" Another witness Ksuar Babamiya Momin has also stated

about the active part by the applicant that is assault by scythe on

the person of the deceased. Similar statement has been given by

Shaikh Aslam Abdul Razzak under Section 161 as well as Section

164 of Cr.P.C. The learned Special Judge failed to consider the post

mortem report in which the Column No.17 gives about 15 injuries

and most of them are stab wound and incised wound. The probable

cause of death is stated as "shock and haemorrhage due to multiple

stab wounds." It was the brutal murder in day light. Further, the

activity of the gang collectively is required to be seen. The applicant

is the member of Anwarkhan @ Gujjarkhan Mirzakhan gang.

Against Anwarkhan there are 12 offences. Even chapter cases were

initiated and preventive action was taken against him. Other

members of the gang are also involved in many cases. Therefore,

taking into consideration all these aspects the bail application ought

not to have been allowed.

4. The learned Advocate for the applicant has relied on the

decision in Kavitha Lankesh Vs. State of Karnataka and Ors.,

Criminal Appeal No.1236 of 2021 (Arising out of SLP (Criminal)

5 ACB 121-2021

No.8049 of 2021) and Criminal Appeal No.1237 of 2021 (Arising out

of SLP (Criminal) No.5387 of 2021), whereupon reliance was placed

on Ranjitsingh Brahmajeetsing Sharma Vs. State of Maharashtra,

reported in 2005 (5) SCC 294, in which paragraph No.85 from the

Judgment of Prasad Shrikant Purohit Vs. State of Maharashtra,

reported in (2015) 7 SCC 440 was considered. The ratio that has

been reiterated is that :-

"Therefore, even if one may not have any direct role to play relating to the commission of an "organised crime", but when the nexus of such person with an Accused who is a member of the "organised crime syndicate" or such nexus is related to the offence in the nature of "organised crime" is established by showing his involvement with the Accused or the offence in the nature of such "organised crime", that by itself would attract the provisions of MCOCA."

Further reliance has been placed on the decision in Criminal

Appeal no.418 of 2020 (Prem s/o Chunnilal Yadav (Gwalwanshi) Vs.

The State of Maharashtra, by the Division Bench at Nagpur, decided

on 09-12-2021), wherein relying upon Kavitha Lankesh (Supra) on

the ground of specific role attributed to each accused and focus of

the competent authority while according sanction has been

6 ACB 121-2021

reiterated.

Further reliance has been placed on Govind Sakharam Ubhe

Vs. The State of Maharashtra (criminal Appeal No.18 fo 2009,

decided on 11-06-2009), wherein it has been held that :-

"Material creates a strong and grave suspicion leading this Court to presume that appellant is member of oganized crime syndicate and is involved in its continuing unlawful activities, therefore, the Special Judge has rightly rejected the discharge application."

Further in this case it was observed that :-

"The words 'in respect of which more than one charge- sheet have been filed' 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 filed."

5. Further, in Ranjitsing Brahmajeetsing Sharma (Supra) the

Hon'ble Supreme Court held that :-

"The order granting or refusing bail must demonstrate application of mind as to why applicant has been granted or denied privilege of bail."

It has been submitted that though a detailed order has been passed,

yet it is based on the material which ought not to have been

7 ACB 121-2021

considered by the learned Special Judge or the learned Special Judge

has failed to consider proper record before him.

6. Per contra, the learned Advocate for respondent No.2 has

vehemently submitted that only one previous case is against the

present respondent No.2. It was Sessions Case No.106 of 2011

registered by MIDC Police Station, Paithan and it was under Section

399, 402, 353, 307 r.w.34 of IPC and other sections under the Arms

Act and Bombay Police Act. Respondent No.2 has been acquitted by

the competent Court on 28-10-2021. Therefore, no case except the

present one is pending against him. The entire charge-sheet would

show that he never acted as member of the crime syndicate and in

fact his presence itself was not stated by two of the prosecution

witnesses namely the tea hotel owner Shaikh Salim Shaikh Usman.

Though the presence of respondent No.2 was stated in the FIR, it

was not made clear as to whether he had used the scythe and that

fact has been noted by the Special Judge. It is then stated that

another witness Shaikh Nisar @ Babbar Shaikh Maheboob whose

statement has been recorded by the Investigating Officer on 27-09-

2021 had not seen the actual murder nor he had taken the name of

the applicant. Thereafter, the learned Special Judge has taken

8 ACB 121-2021

efforts to consider as to whether the provisions of MCOC Act are

prima facie made out against present respondent No.2 and relying

upon various authorities it has been observed that prima facie those

provisions are not attracted. Another fact has also been considered

that when there is evidence on record in the form of a document

that respondent No.2 was not present at the spot, but he was

present at a different city which is about five to six hours of journey,

then it would be the fit case where the discretion would be exercised

by the concerned Court in favour of the accused. No fault can be

found in the detailed order passed by the learned Judge and there is

no necessity to curtail the liberty that has been restored in favour of

respondent No.2.

7. At the outset, as regards respondent No.2 is concerned now, it

appears that the only case in which he was involved as an accused

has been decided by the learned Additional Sessions Judge,

Aurangabad on 28-10-2021 and he has been acquitted from the said

case. That means, except the present case there is no other case in

which he is involved. The prosecution has come with a case that he

is the member of a particular gang and all the accused persons

together are the members of crime syndicate. The documents on

9 ACB 121-2021

record would definitely show that almost each of the accused is

involved in many cases and some of them are facing only the

present case i.e. Special Case (MCOCA) No.51 of 2020. It has been

alleged that all the accused persons who are 18 to 19 in number

involved themselves in the act of extortion, dacoity, and in that

process they are causing grievous hurt or even tried to commit

murder of the police officers. As aforesaid, in Govind Sakharam

Ubhe (Supra), Prem s/o Chunnilal Yadav (Supra) what is important

is to see whether the concerned accused is acting as a member of

crime syndicate. The definition of the continuing unlawful assembly

under Section 2 Sub-clause (d) of the MCOC Act provides that such

activity must be undertaken as a member of an organised crime

syndicate or on behalf of such syndicate and Sub-clause (e) states in

respect of which more than one charge-sheet have been filed before

a competent Court. Therefore, in Govind Sakharam Ubhe (Supra) it

was observed that :-

"In respect of which more than one charge-sheet have been filed' 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 filed'."

10 ACB 121-2021

Thereafter, the Division Bench has further elaborated the same

finding and observed that :-

"Therefore, if within a period of preceding ten years, one charge-sheet has been filed in respect of organized crime committed by the members of a particular crime syndicate, the said charge-sheet can be taken against a member of the said crime syndicate for the purpose of application of the MCOCA against him even if he is involved in one case. The organized crime committed by him will be a part of the continuing unlawful activity of the organized crime syndicate. What is the important is the nexus or the link of the person with organized crime syndicate. The link with the 'organized crime syndicate' is the crux of the term 'continuing unlawful activity'. If this link is not established, that person cannot be roped in."

Therefore, it is not necessary that all the accused persons should be

accused in one case previously investigated. It would be very

premature to comment that there is absolutely no connection

between the crimes those have been committed by the co-accused

and the part/role played by the present applicant.

8. The learned Special Judge has almost accepted finally the plea

of alibi taken by respondent No.2 that he was present in Pune and

on the previous day at Mumbai. Plea of alibi cannot be so accepted

11 ACB 121-2021

without proof by a Court dealing with bail application. The fact

which is to be proved by an accused by adducing cogent evidence,

cannot be accepted without evidence at a interim stage. At the

most, it can be considered as a supplementary ground to the main

ground. It can be certainly seen from the charge-sheet that the

learned Special Judge has not considered the statements of the

other witnesses apart from the contents of the FIR. Presence of

respondent No.2 has been stated by Shaikh Afroz Shaikh Bashir

whose statement has been recorded on 21-09-2019 under Section

161 of Cr.P.C., and he has specifically stated that the present

respondent No.2 along with other co-accused who were holding

Khanjar, Kukri, Scythe, Knife, Sword went to the hotel of one

Shaikh Salim Shaikh Usman where deceased Sayyed Sajed Ali was

sitting. All of them went running towards Sayyed Sajed and

assaulted him brutally. Similar statement has been made by him in

his statement under Section 164 of Cr.P.C. Witness Shaikh Ayub @

Titi Shaikh Yakub in his statement recorded under Section 161 of

Cr.P.C. on 22-09-2019 has also made the said statement and he is

also one of the eyewitnesses. Witness Pathan Khurramkhan

Bismillakhan has also stated in his statement under Section 161 as

well as 164 of Cr.P.C. about the presence of the present respondent

12 ACB 121-2021

No.2 along with weapons and all of them were assaulting deceased

Sajed. Similar statement has been made by Shaikh Sarfaraj @ Baba

Shaikh Bashir under Section 161 of Cr.P.C. This fact taken together

with post mortem report would show that deceased was brutally

attacked. In the FIR it is stated that Sajed Ali had lodged complaint/

FIR under Section 307 of IPC and also about the illegal demand of

amount by way of extortion against accused No.1. Deceased was

getting threats by accused No.1 Anwarkhan and when he had

refused to withdraw that previous case, he has been attached and

murdered.

9. Now turning towards the observations by the learned Special

Judge that there is no continuous criminal activity. The aforesaid

decisions are not considered by him and further as regards

pecuniary gain is concerned, it is not even necessary to consider the

same at this stage. Further the word, "other advantage for himself

or any other person," used in Section 2 of MCOC Act have been

recently reiterated in Abhishek Vs. The State Of Maharashtra by

Hon'ble Apex Court (Criminal Appeal No.869 of 2022, Arising Out of

SLP (CRL.) NO. 1157 of 2022, decided on 20-05-2022), wherein the

decision by the Division Bench of this Court in State of Maharashtra

13 ACB 121-2021

Vs. Jagan Gagansingh Nepali and Anr., reported in (2011) SCC

OnLine Bombay 1049, holding that the crimes of bodily ofence could

be the crimes committed with an intention to establish supremacy

and which could lead to gains other than pecuniary beneft or

advantage has been confrmedd Here, the previous case that was

fled by the deceased was with the specifc allegation that he was

tried to be murdered on the count of refusal to pay moneyd

10d When the learned Special Judge has misinterpreted the

provisions and has not taken into consideration the decisions by this

Court, then the order granting bail to respondent Nod2 cannot be

allowed to sustaind There was clear evidence about specifc role

played by the accused and there are eyewitnesses to the incident

and the plea of alibi ought not to have been considered at the stage

of bail when such evidence in the form of statements of

eyewitnesses under Section 161 and 164 of CrdPdCd were before the

concerned Courtd Even at this stage, it cannot be said that the

statement under Section 164 of CrdPdCd which is on oath before

Magistrate ought to have been given more importance than the

documents to support plea of alibid The discretion has been wrongly

applied, and therefore, impugned order deserves to be set asided

Hence, the following orderd

14 ACB 121-2021

ORDER

1) Application stands allowedd

2) The order passed by learned Special Judge

(MCOCA), Beed in Crime Nod403 of 2019 dated 05-05-

2021, releasing respondent Nod2 under Section 439 of

CrdPdCd, is hereby set asided

3) The bail bonds given by respondent Nod2 stands

cancelledd

4) Respondent Nod2 Shaikh Babbar Shaikh Yousuf to

surrender before learned Special Judge (MCOCA), Beed,

on or before 10-06-2022 before 05d00 pdmd, and

thereafter, the learned Special Judge to take up the steps

as per the lawd

5) In case of failure on the part of respondent Nod2 to

surrender on or before the given date and time, the

learned Special Judge would be at liberty to take up the

legal steps to secure presence of respondent Nod2d

(SMT. VIBHA KANKANWADI) JUDGE

15 ACB 121-2021

LATER ON :

After pronouncing the order, learned Advocate Mr. A. N.

Sabnis for respondent No.2 prays for Stay of the order as

respondent No.2 intends to approach the Higher Court. In view of

this, the operation of this order is stayed till 30-08-2022.

(SMT. VIBHA KANKANWADI) JUDGE vjg/-.