Bombay High Court
Niyamatulla @ Munna Mohammad ... vs The State Of Maharashtra on 6 September, 2022
Bench: S. V. Kotwal
1/8 06-IA-2731-22-APEAL-827-22.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO.2731 OF 2022
IN
CRIMINAL APPEAL NO.827 OF 2022
Niyamatulla @ Munna
Mohammad Shirgaonkar .... Appellant
versus
State of Maharashtra .... Respondent
.......
• Mr. Vinod Kashid, Advocate for Appellant.
• Smt. J. S. Lohokare, APP for the State/Respondent.
CORAM : SARANG V. KOTWAL, J.
DATE : 06th SEPTEMBER, 2022
P.C. :
1. Leave to amend. Amendment to be carried out to
correct the prayer. Amendment shall be carried out forthwith.
2. This is an application for suspension of sentence and
Digitally
consequent release of the Applicant on bail during pendency of
signed by
MANUSHREE
MANUSHREE V
V NESARIKAR
NESARIKAR Date:
2022.09.08
11:22:25
+0530
Criminal Appeal No.827 of 22. The Applicant was the original
accused No.8 in MCOC Special Case No.18 of 2019 before the
Nesarikar
2/8 06-IA-2731-22-APEAL-827-22.odt
Special Judge under MCOC/NIA/POTA Act, Greater Mumbai.
Vide the judgment and order dated 29/07/2022, the Applicant
was convicted and sentenced as under :
(i) He was convicted for the offence punishable u/s
387 r/w 120-B of the Indian Penal Code and
was sentenced to suffer rigorous imprisonment
for five years and to pay a fine of Rs.5,000/-
and in default of payment of fine to undergo
rigorous imprisonment for three months.
(ii) He was also convicted for the offence
punishable u/s 506(II) r/w 120-B of the Indian
Penal Code and was sentenced to suffer
rigorous imprisonment for two years and to pay
a fine of Rs.3,000/- and in default of payment
of fine to undergo rigorous imprisonment for
one month.
(iii) He was also convicted for the offence
punishable u/s 3(2) of the MCOC Act and was
sentenced to suffer rigorous imprisonment for
five years and to pay a fine of Rs.5,00,000/-
and in default of payment of fine to undergo
rigorous imprisonment for one year.
3/8 06-IA-2731-22-APEAL-827-22.odt
(iv) He was also convicted for the offence
punishable u/s 3(4) of the MCOC Act and was
sentenced to suffer rigorous imprisonment for
five years and to pay a fine of Rs.5,00,000/-
and in default of payment of fine to undergo
rigorous imprisonment for one year.
All the substantive sentences were directed to run
concurrently. The Applicant was granted set off u/s 428 of Cr.P.C.
for the period of 3 years, one month and 22 days, which he had
undergone as an under trial prisoner.
3. Heard Mr. Vinod Kashid, learned counsel for the
Applicant and Smt. J. S. Lohokare, learned APP for the State.
4. Learned counsel for the Applicant submitted that he
was subsequently arrested and the trial went on against the
accused Nos.1 to 7. His trial was separated. However, allegations
against him are much less serious than those against accused
Nos.1 to 7 and in particular against accused No.3 Vijay Vasant
Kedare. He submitted that all the accused were similarly
4/8 06-IA-2731-22-APEAL-827-22.odt
convicted and sentenced. They have preferred separate Appeals
and all of them are granted bail during pendency of Appeals. He
claimed parity for the present Applicant. He submitted that his
role is much lesser.
5. Learned APP opposed the application. She submitted
that the Applicant was absconding and therefore his trial had to
be separated. The allegations against him are that he was one of
the main conspirators and therefore considering the conviction
under MCOC Act, he may not be granted bail.
6. I have considered these submissions and I have
particularly perused the evidence of the victim. He was
examined as P.W.2. He has given the history behind the offence.
It was a case arising out of one S.R.A. scheme. Originally his
father was the president of one Sainath Rahivashi Sangh. After
his death, P.W.2's brother became the president. The accused and
in particular accused No.3 Vijay Kedare did not want P.W.2's
brother to continue as president of the Sangh. They wanted their
5/8 06-IA-2731-22-APEAL-827-22.odt
own person to be incharge and president of that Sangh.
Therefore P.W.2 and his brother were continuously threatened.
There was demand of Rs.5 lakhs. There were instances
mentioned in his deposition. Two main instances are dated
30/09/2012 and 04/10/2012. As far as the incident dated
30/09/2012 is concerned, the accused Nos.4, 6 and the present
Applicant approached the P.W.2, demanded Rs.5 lakhs and told
P.W.2 to settle the matter with the accused No.3. P.W.2 refused.
Accused No.5 told accused No.4 to go to Nashik and take
permission from accused No.3 to eliminate P.W.2 and his brother.
The Applicant also threatened him with dire consequences.
7. On 04/10/2012 P.W.2 was assaulted by accused Nos.1,
2 and 7 with choppers. After that, the FIR was lodged and the
investigation was continued.
8. Thus, it can be seen that the roles of the other accused
are almost similar to that of the present Applicant. In fact, on
04/10/2012 when the incident of assault had taken place, the
6/8 06-IA-2731-22-APEAL-827-22.odt
Applicant was not present. In this background it is necessary to
refer to various orders passed by different Benches of this Court
in granting bail to the other accused in their respective Criminal
Appeals. Accused No.3 Vijay Vasant Kedare was granted bail vide
order dated 18/07/2019 in Criminal Application No.591 of 2019
in Criminal Appeal No.136 of 2019 by this Court (Coram : Dama
Seshadri Naidu, J.).
9. Accused No.4 Chandrakant Dattaram Dhage, was
granted bail by the same Bench on the same day by passing an
order in Criminal Application No.194 of 2019 in Criminal
Appeal No.136 of 2019.
10. Accused Nos.5 and 6 were granted bail by the same
Bench on the same day in Criminal Application No.114 of 2019
in Criminal Appeal No.110 of 2019.
11. A Division Bench of this Court granted bail to accused
Nos.1, 2 and 7 vide order dated 18/10/2019 passed in Criminal
7/8 06-IA-2731-22-APEAL-827-22.odt
Application No.1 of 2019 in Criminal Appeal No.293 of 2019.
12. There is no dispute that the subject matter of this
Appeal is the same offence. Therefore on the ground of parity,
the Applicant also deserves to be released on bail on similar
conditions. Some of the accused were granted bail, but
condition was imposed that those Applicants shall deposit 50%
of the amount within two months after the order was uploaded.
Same condition can be imposed on the Applicant.
13. Since the Applicant claims parity, same condition shall
be imposed on him as well as mentioned in the aforesaid
Criminal Application No.591 of 2019, Criminal Application
No.194 of 2019 and Criminal Application No.114 of 2019.
14. Hence, the following order :
ORDER
(i) Application is allowed.
8/8 06-IA-2731-22-APEAL-827-22.odt
(ii) During pendency of Criminal Appeal No.827 of
2022 substantive sentence imposed on the
Applicant is suspended and he is directed to be
released on bail on his executing P.R. Bond in the
sum of Rs.30,000/- and his furnishing two
sureties in the like amount.
(iii) The Applicant shall not contact the first
informant or victim, or any other witness, or any
member of the victim's family in any manner,
pending this Appeal.
(iv) The Applicant's failure to abide by these
conditions shall entail the prosecution to apply
for cancellation of bail granted to the Applicant.
(v) As the Applicant pleads his poverty to pay in full
the fine amount imposed by the trial Court, this
Court allows Applicant to deposit 50% fine amount
in two months after this order is uploaded.
(vi) Application is accordingly disposed of.
(SARANG V. KOTWAL, J.)
