Yogesh Vinod Ahiwale vs The State Of Maharashtra
2022 Latest Caselaw 2453 Bom

                                                                                                   4.BA1348.2019.doc



                                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                           CRIMINAL APPELLATE JURISDICTION
                                       CRIMINAL BAIL APPLICATION NO. 1348 OF 2019

                       Yogesh Vinod Ahiwale.                                   ... Applicant.
                       V/s.
                       The State of Maharashtra.                               ... Respondent.
                                                         -------------------
                       Mr. Sudhir C. Halli, advocate for applicant.
                       Mr. A.A. Palkar, APP for State.
                                                      ---------------------
                                         CORAM : SMT. SADHANA S. JADHAV, J.

RESERVED ON : MARCH 9, 2022.

PRONOUNCED ON : MARCH 11, 2022

P.C.

1 Heard the learned Counsel for the applicant and the

learned APP for the State.

2 This is successive bail application seeking enlargement on

bail in Crime No. I-247 of 2015 dated 15/12/2015 registered at Phaltan

Police Station initially for the offence punishable under section 302, 307,

387, 143, 147, 148, 149 of the Indian Penal Code. Initially, Bail

Application No. 1132 of 2017 was dismissed as withdrawn on 11/8/2017.

On 12/7/2018, the Bail Application No. 2281 of 2017 was dismissed as Digitally signed by ARUNA S ARUNA S TALWALKAR TALWALKAR Date:

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                       withdrawn.



                       3                 The learned Counsel for the applicant submits that

although this is a successive application, it is maintainable, as the

following issues are being raised for the first time in this application and

the applicant is not seeking bail on merits. To substantiate the said

contention, learned Counsel submits that present successive application is

filed on the following grounds :

(i) That there is non-application of mind while according

sanction to prosecute under the provisions of the MCOCA.

(ii) That none of the co-accused in the present case were

prosecuted alongwith the applicant in any of the previous cases and

therefore, it cannot be said that he belongs to any organization as such.

(iii) That the applicant had filed an application under the

provisions of Right to Information Act, 2005 regarding the prosecution of

the applicant in the earlier cases, a fact which was relied upon by the

sanctioning authority for according sanction to prosecute under the

provisions of the MCOCA. The information was received on 11/2/2020

i.e. subsequent to the order of withdrawal. The information that was

received is as follows :

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(a) Crime No. 164 of 2008 registered at Phaltan Police station for

offences punishable under section 395, 341, 427 of the Indian Penal

Code, the applicant was acquitted by the Sessions Court vide

Judgment and Order dated 11/1/2013.

(b) In Crime No. 79 of 2011 registered at Phaltan Police Station for

offence punishable under section 395, 341 of the Indian Penal Code,

the applicant is acquitted vide Judgment and Order dated

29/11/2014.

(c) In Crime No. 81 of 2011 registered at Phaltan Police Station for

offence punishable under section 307, 353, 333 of the Indian Penal

Code, the applicant was acquitted vide Judgment and Order dated

6/5/2013.

(d) That in the present case, the FIR was lodged on 15/12/2015.

It is therefore, submitted that on the date of registration of Crime No. 247

of 2015 on 15/12/2015, the applicant was acquitted in all the three cases

and this aspect has not been taken into consideration by the sanctioning

authority and therefore, the stringent provisions of MCOCA will not be

applicable to the present case. It is also submitted that the applicant

herein has been falsely implicated in the present case and that he is not

involved in the present case, and therefore, he is entitled to be released Digitally signed by

ARUNA S ARUNA S TALWALKAR Talwalkar 3 of 10 TALWALKAR Date:

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on bail.

4 The learned APP has raised a preliminary objection that the

accused shall seek the relief of quashing of the charges under MCOCA

before the Hon'ble Division Bench. The learned Counsel submits that the

present application is filed under section 439 and 482 of the Code of

Criminal Procedure, 1973 and therefore, the same be heard by this Court.

5 The learned counsel has drawn attention of this Court to

section 2(d) of the MCOC Act which reads as follows :

"d) "continuing unlawful activity" means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, undertaken either singly or jointly, as a member of an organised crime syndicate or on behalf of such, syndicate in respect of which more than one charge- sheets have been field before a competent Court within the preceding period of ten years and that Court has taken cognizance of such offence;"

It is the contention of the learned Counsel for the applicant that there is

no material to show that the applicant is involved in any continuing

unlawful activities.

6 It is the contention of the learned Counsel that the present

applicant was not a member of an organized crime and neither there is Digitally signed by ARUNA S ARUNA S TALWALKAR TALWALKAR Date: Talwalkar 4 of 10 2022.03.11 18:56:42 +0530

4.BA1348.2019.doc

material to show that he has worked on behalf of any crime syndicate.

That in the present case, there is no material on record to show that the

applicant has committed any offence under section 302 and 307 of the

Indian Penal Code. The only allegation against the present applicant is

that he had threatened the deceased of dire consequences just a fortnight

before the incident. Even about the threat that was extended there is no

complaint filed by the deceased or any relatives against the applicant.

There is no CDR to show that he was in contact with any of the co-

accused or the deceased in the present case.

7 Per contra, the learned APP has submitted that there are

confessions by the witnesses which clearly indicate that 15 days prior to

the incidence, present applicant was carrying a revolver and he had

threatened Jyotiram that he should withdraw the case which was filed

against Swapnil Kakade and Bunty Kakade under section 307 of the

Indian Penal Code and that he would ask the others to withdraw the cases

of atrocities filed against him. He had also offered an amount of Rs. One

Lakh for withdrawing the case under section 307 of the Indian Penal

Code and further threatened that in the eventuality he does not withdraw

the case, 'it may cost him his life'. The statements of some witnesses Digitally signed by ARUNA S ARUNA S TALWALKAR TALWALKAR Date:

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recorded under section 164 of the Code of Criminal Procedure, 1973

show that Swapnil Kakade had informed the applicant that despite the

request made by him, Jyotiram had not withdrawn the case under section

307 of the Indian Penal Code and at that juncture, the applicant had

ordered that it is time to eliminate Jyotiram.

8 That the confessional statement of accused No. 5 would

show that the arms that were purchased by Bunty Kakade were financed

by the present applicant. The same is contention of the accused No. 6.

The said statements are not retracted. It is contended that the said

statements are recorded by competent authority. That section 18 of the

MCOCA contemplates that the said statements are admissible.

9 The learned Counsel for the applicant placed reliance upon

Judgment of the Supreme Court in the case of Lt. Col. Prasad Shrikant

Purohit v/s. State of Maharashtra1 to substantiate the maintainability of

successive bail application. In any case, the learned APP also has not

objected to the same. The learned Counsel has also placed reliance upon

the Judgment of this Court in the case of State of Maharashtra v/s. Jagan

Digitally signed by ARUNA S ARUNA S TALWALKAR TALWALKAR Date: 1 Criminal Appeal No. 1448 of 2017.

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Gagansingh Nepali @ Jaggya and ors.2, especially to the observation that-

"It is implicit that while granting permission under subsection (1) and granting sanction under sub-section (2) of section 23 of the MCOCA, the police officers who are undisputedly high ranking, will be required to apply their mind to the facts of the case and come to a prima facie satisfaction as to whether ingredients to constitute the offence punishable under MCOCA are made out or not."

10 In the case of Ranjit Singh Sharma v/s. State of

Maharashtra3, the Supreme Court has held as follows :

"The Statement of Objects and Reasons clearly state as to why the said Act had to be enacted. Thus, it will be safe to presume that the expression 'any unlawful means' must refer to any such act which has a direct nexus with the commission of a crime which MCOCA seeks to prevent or control. In other words, an offence falling within the definition of organised crime and committed by an organised crime syndicate is the offence contemplated by the Statement of Objects and Reasons. There are offences and offences under the Indian Penal Code and other penal statutes providing for punishment of three years or more and in relation to such offences more than one chargesheet may be filed. As we have indicated hereinbefore, only because a person cheats or commits a criminal breach of trust, more than once, the same by itself may not be sufficient to attract the provisions of MCOCA.

Furthermore, mens rea is a necessary ingredient for commission of a crime under MCOCA."

The Supreme Court has referred to the previous Judgment of the Apex

Court in the case of Shri Ram v/s. The State of U.P. 4, wherein it is

2 (2011) 5 Mh. L.J. 386.

          Digitally
                        3   (2005) 5 SCC 294
          signed by
          ARUNA S       4   AIR 1975 SC 175.
ARUNA S   TALWALKAR
TALWALKAR Date:
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                       observed that-

                                    "6    Thus, in order to constitute abetment, the abettor must be

shown to have "intentionally" aided the commission of the crime. Mere proof that the crime charged could not have been committed without the interposition of the alleged abettor is not enough compliance with the requirements of Section 107. A person may, for example, invite another casually or for a friendly purpose and that may facilitate the murder of the invitee. But unless the invitation was extended with intent to facilitate the commission of the murder, the person inviting cannot be said to have abetted the murder. It is not enough that an act on the part of the alleged abettor happens to facilitate the commission of the crime. Intentional aiding and therefore active complicity is the gist of the offence of abetment under the third paragraph of Section 107."

Sub-section (2) of Section 3 inter alia provides for facilitating conspiracy or abetting or commission of a crime by a person knowingly or any act preparatory to organised crime."

11 In fact, the subjective satisfaction of the sanctioning

authority is sufficient to accord sanction. In the present case, the charge-

sheets were filed against the accused in 10 years preceding the present

incident. The learned APP has drawn attention of this court to the

Judgment of the Apex Court in the case Kavitha Lankesh v/s. State of

Karnataka and ors.5 wherein the SC has held as follows :

"26. It is not necessary to multiply authorities in this regard. Suffice it to observe that the High Court in the present case was essentially concerned with the legality of prior approval granted by the Commissioner of Police, Bengaluru City dated 14.08.2018 for invoking Section 3 of the 2000 Act and thus, to allow

5 AIR 2021 SC 5113.

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recording of information regarding commission of offence of organized crime under the 2000 Act and to investigate the same. As aforesaid, while considering the proposal for grant of prior approval under Section 24(1)(a) of the 2000 Act, what is essential is the satisfaction of the competent authority that the material placed before him does reveal presence of credible information regarding commission of an offence of organized crime by the organized crime syndicate and, therefore, allow invocation of Section 3 of the 2000 Act. As a consequence of which, investigation of that crime can be taken forward by the Investigating Agency and chargesheet can be filed before the concerned Court and upon grant of sanction by the competent authority under Section 24(2), the competent Court can take cognizance of the case.

27. At the stage of granting prior approval under Section 24(1)

(a) of the 2000 Act, therefore, the competent authority is not required to wade through the material placed by the Investigating Agency before him along with the proposal for grant of prior approval to ascertain the specific role of each accused. The competent authority has to focus essentially on the factum whether the information/material reveals the commission of a crime which is an organized crime committed by the organized crime syndicate. In that, the prior approval is qua offence and not the offender as such. As long as the incidents referred to in earlier crimes are committed by a group of persons and one common individual was involved in all the incidents, the offence under the 2000 Act can be invoked. This Court in Prasad Shrikant Purohit31 in paragraphs 61 and 98 expounded that at the stage of taking cognizance, the competent Court takes cognizance of the offence and not the offender. This analogy applies even at the stage of grant of prior approval for invocation of provisions of the 2000 Act. The prior sanction under Section 24(2), however, may require enquiry into the specific role of the offender in the commission of organized crime, namely, he himself singly or jointly or as a member of the organized crime syndicate indulged in commission of the stated offences so as to attract the punishment provided under Section 3(1) of the 2000 Act.

Digitally signed by

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12 Upon perusal of the charge-sheet, it is clear that the

specific role attributed to the applicant is considered by the sanctioning

authority in consonance with the past criminal record of the applicant in

the preceding 10 years. Hence, no case is made out for grant of bail. The

application stands rejected and disposed of accordingly.

(SMT. SADHANA S. JADHAV, J)

Digitally signed by ARUNA S ARUNA S TALWALKAR TALWALKAR Date:

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