Bombay High Court
Sanjog Suresh Tingote vs The State Of Maharashtra on 16 September, 2022
Bench: Bharati Dangre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 1155 of 2021
Sanjog Suresh Tingote .. Applicant
Versus
The State of Maharashtra .. Respondent
...
Mr. Ravi Dwivedi for the applicant.
Mr.S.V.Gavand, APP for the State.
PSI Shri Jamadar from Santacruz police station.
CORAM: BHARATI DANGRE, J.
DATED : 16th SEPTEMBER 2022
P.C:-
1 The applicant is charged for the offence punishable
under Sections 302, 307, 143, 144, 147, 149, 387, 449 and 201
IPC along with Sections 3, 4, and 25 of the Arms Act and Section
37(1) and Section 135 of the Maharashtra Police Act. He also
face charge under the provisions of MCOCA, after the necessary
approval was granted. The applicant came to be arrested on
28/7/2016 and since then, he remain incarcerated.
Tilak
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2 The case of the applicant which can be discerned
from the charge-sheet as well as the affidavit of the prosecution
placed on record, is to the effect that on 27/7/2016, at around
17.45 hours, six unknown persons armed with deadly weapons
like fire-arm, choppers and sharp weapons entered into the office
of HDIL situated at Santacruz.
3 The case of the prosecution, as can be reflected from
the FIR is to the effect that around 17.45 hours, five unknown
persons with the description given, armed with pistol, chopper
and knife entered into the office of Nadeem and the informant
noticed one person coming out of the office, shouting that firing
had taken place in the office.
4 Nadeem bhai and Babubhai are the two deceased who
were found in pool of blood and they were immediately taken to
the hospital. This resulted in registration of C.R.No.394 of 2016
against unknown persons and four accused persons came to be
arrested on 28/7/2016, which include the present applicant. The
fifth accused person came to be arrested on 31/7/2016.
While the offence was under investigation, of
hatching a conspiracy to commit murder of deceased and forming
an unlawful assembly, it was revealed that in the month of
November 2013, at the instance of gang leader Zulfikar, his
associates had come to office of HDIL and they had demanded
ransom to facilitate release of Zulfikar's brother, Accused no.1
Tilak
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Mohsin who was detained in a murder case. It is alleged that
threats were given to part with the amount. In November 2013,
gang leader Zulfikar and his associates are alleged to have
vandalized Hotel Pakeeza for extortion and offence came to be
registered against him and his associates.
4 Considering the involvement of the gang leader
Zulfikar who was indulging himself in various offences like
extortion, murder, threat to life and suspecting that he had played
an active role, the provisions of MCOCA were inovked, and after
completing the necessary formalities of obtaining approval from
the Addl. Commissioner of Police, West Region, Bandra, the
investigation was conducted for commission of offence under the
MCOCA. Sanction was accorded u/s.23(2) by the Commissioner
of Police for filing charge-sheet and charge-sheet was filed against
five arrested persons and one absconding accused who is Kalim
Rauf Saeed, who came to be arrested lately.
5 As far as present applicant is concerned, he is alleged
to be a member of the gang belonging to Zulfikar and the charge-
sheet accuse him of being part of the conspiracy to commit the
offence of murder on the day when two persons were actually
killed and one person was injured. It is alleged that he provided
assistance to the gang by plying the accused persons in his
rickshaw and bringing them on the spot, where the alleged
offence has taken place. It is alleged that he himself drove the
rickshaw and assisted the co-accused, in reaching the spot.
Tilak
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6 Reliance is placed upon the panchnama of the CCTV
footage drawn from Nisarg Apartment, approximately at a
distance of 1.6 km from the spot, where the applicant is seen in
the company of the co-accused and the case of the prosecution is
they gathered there and along with one other auto-rickshaw, they
left the place, to reach the spot. Admittedly, there is no CCTV
footage at the spot where the incident had taken place.
It is the case of the prosecution that the accused no.1
had given a sum of Rs.5,000/- to the applicant towards expenses
and he has been identified him as rickshaw puller from whose
rickshaw the co-accused Mohsin stepped out along with weapons.
During the confessional statement of co-accused, the presence of
the applicant on the spot has also surfaced on record. However,
none of the statements in the charge-sheet attribute any overt act
to him, except that he was also a part of the conspiracy for which
he would face a charge u/s.120B of the IPC.
7 It is not the case of the prosecution that the applicant
was the assailant, as according to the prosecution case, after he
dropped the accused persons on the spot, he left. As far as the
material to charge him u/s.120B of IPC is concerned, the only
material is the statement of the co-accused which is recorded
u/s.18 of the MCOCA.
In order to justify the charge under MCOCA, which
allege that he is a member of the crime syndicate headed by
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Zulfikar, against whom six offences are registered, the affidavit of
the prosecution is silent about his involvement in any of the
offences in which the gang leader is arraigned as an accused. No
commonality is established against the present applicant, if at all
he is to be accused as a Member of the Organized Crime
Syndicate.
The Hon'ble Apex Court in case of Mohamad Iliyas
Mohamad Bilal Kapadiya Vs. State of Gujarat (Special Leave to
Appeal (Crl.) No.1815/2022) has recently crystallized the
position as regards the accused who is not arraigned as an accused
along with the Crime Syndicate, but for the first time, who is
arraigned as an accused in the subject C.R, where MCOCA has
been invoked in the following words :
"Mr.Rohatgi submits that in the present case,
the second requirement is not satisfied. He submits
that in the chart wherein all the crimes registered
against the petitioner/applicant have been listed, it
could be seen that only FIR No.64 of 2021 dated 26 th
January, 2021, is in respect of an activity committed by
two members of the syndicate. He, therefore, submits
that requirement of filing of more than one charge-
sheets is not satisfied in the present case.
Ms.Deepanwita Priyanka on the contrary
submits that all the offences alleged in the FIRs which
are given in the Chart, are directly or indirectly
committed for the benefit of the crime syndicate of
which the petitioner/applicant is a member. She relies
on the judgment of this Court in the case of Prasad
Tilak
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Shrikant Purohit vs. State of Maharashtra, reported in
(2015) 7 SCC 440.
Undisputedly, the perusal of the chart would
reveal that only one offence, i.e. FIR No.64 of 2021
would show that it has been committed by seven
accused out of which two are the members of the
syndicate. In respect of offences at Serial Nos.1 to 4 in
the chart, no members of the syndicate are arrayed as
accused".
8 The applicant is incarcerated since 2016, i.e. more
than six years, and though the charge has been framed recently in
the year 2022 and the prosecution has cited 129 witnesses, the
culmination of the trial do not appear to be in foresight.
Considering the material compiled against the
applicant in the charge-sheet and when the invocation of the
provisions of MCOCA against him prima facie appear to be
doubtful, he cannot be incarcerated any further. He may take the
consequences of the accusations faced by him and the charges
levelled against him when he face the trial. However, since the
prosecution has not brought on record any antecedents of the
applicant, nor has it justified that the applicant is at flight risk, he
deserve his release on bail on merits as well as on the long
incarceration for six years.
Observations made above are prima facie in nature
and limited for the purpose of adjudication of the present
Tilak
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applicant, and shall in no way, bind the Special Court while
trying the applicant for the offence, with which he is charged.
Hence, the following order :-
O RDER
(a) The Applicant - Sanjog Suresh Tingote in
connection with C.R.No.394/2016 registered
with Santacruz Police Station shall be released on
bail on furnishing P.R. bond to the extent of
Rs.25,000/- with one or more sureties of the like
amount.
The applicant shall be released on cash
bail of Rs.25,000/- in lieu of sureties for a period
of six weeks. During the said period, the
applicant shall arrange for the sureties.
(b) The applicant shall not directly or indirectly make
any inducement, threat or promise to any person
acquainted with facts of case so as to dissuade him
from disclosing the facts to Court or any Police
Officer. The Applicant should not tamper with
evidence.
(c) The Applicant shall attend the trial on regular
basis.
Tilak
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(d) On being released on bail, the applicant shall
furnish his contact number and residential
address to the Investigating Officer and shall keep
him updated, if there is any change.
(e) The applicant shall not leave City of Mumbai
without prior permission of the Court .
The Application is allowed in the aforestated terms.
( SMT. BHARATI DANGRE, J.)
Tilak
