Bombay High Court
Atit Deven Shah vs The State Of Maharashtra And Anr on 21 August, 2023
Bench: Amit Borkar
2023:BHC-AS:23635
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VRJ
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.1228 OF 2021
Rajesh Alias Pandit Kamal Agrawal ... Applicant
V/s.
The State of Maharashtra ... Respondent
WITH
INTERIM APPLICATION NO.586 OF 2022
IN
BAIL APPLICATION NO.1228 OF 2021
Atit Deven Shah ... Applicant
In the matter between
Rajesh Alias Pandit Kamal Agrawal ... Applicant
V/s.
The State of Maharashtra ... Respondent
Mr Nitin Sejpal with, Ms Pooja Sejpal with, Ms Akshata
Desai, and Mr Krunal Thakkar for the applicant in BA.
Mr Niranjan Mundargi i/by Mr Gaurav P. Thote, for the
applicant in IA.
Ms. Veera Shinde, APP for the respondent/State.
Mr. S.K. Dolas, H.C., Crime, Pune City is present.
CORAM : AMIT BORKAR, J.
DATED : AUGUST 21, 2023
P.C.:
1. This is an application under section 439 of the Criminal
Procedure Code, 1973, in connection with C.R. No.10 of 2018
registered with Deccan Police Station for offences punishable
under sections 302, 307, 120-B, 201 of the Indian Penal Code,
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1860 and section 3 read with sections 25 and 27 of the Indian
Arms Act, 1959 and section 37(1) read with 135 of the
Maharashtra Police Act, 1951 and section 3(1)(i), 3(2), 3(3), 3(4)
of the Maharashtra Control of Organised Crime Act, 1999.
2. The prosecution case, in short, is as under:
Deceased Deven Shah was a builder and developer.
Informant Atit Deven Shah is the son of the deceased Deven Shah.
Deven Shah wanted to purchase land from the village of Darivali.
Applicant accused No.6-Nitin Dangat was known to deceased
Deven Shah. He introduced accused No.7 Sameer Sadavarte to
Deven Shah. Sameer agreed to help deceased Deven in the
consolidated transaction of 400 acres of land in village Darivali,
and a memorandum of understanding (MoU) was executed on 18 th
April 2008. Till 2012 the transaction of sale of around 152 acres of
land was done. On 25th August 2010, deceased Deven paid Rs.3
crore to accused No.6-Nitin Dangat as a commission for land under
MoU. However, since the transaction could not be completed,
accused No.6-Nitin Dangat was required to refund Rs.3 crore and
accused No.7-Sameer was required to refund Rs.2.25 crore paid as
commission. Accused No.8-Rajesh Agrawal intervened and agreed
to settle the dispute between Deven Shah and applicant Nitin
Dangat regarding the refund of Rs.3 crore and Rs.1.05 crore was
to be paid as commission for settling the dispute to accused No.8-
Rajesh Agrawal. Thereafter, Nitin Dangat agreed to complete the
transaction of village Darivali instead of paying back Rs.3 crore.
Accused No.8-Rajesh Agrawal and accused No.1-Ravindra Chorge
were to be paid Rs.1.05 crore towards the said settlement. Accused
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No.1-Ravindra Chorge and accused No.8-Rajesh Agrawal, with the
intervention of gangster Chhota Rajan, started pressurizing Deven
Shah. Deven Shah paid the amount of Rs.25,00,000/- and Nitin
Dangat paid the amount of Rs.50,00,000/- and the amount of
Rs.30,00,000/- remained as balance. Accused No.8-Rajesh,
Agrawal demanded an amount of Rs.30,00,000/- from Deven
Shah. Accused Nitin gave a cheque of Rs.3 crore by way of security
to deceased Deven and told accused No.1 Ravindra Chorge and
accused No.8-Rajesh Agrawal that he paid Rs.3 crore to Deven
Shah. However, the cheque was dishonoured. On knowledge of the
payment, accused No.1-Ravindra and accused No.8-Rajesh started
demanding their balance of Rs.30,00,000/-. Deceased Deven Shah
demanded an amount of Rs.3 crore of applicant accused No.6-
Nitin, and Rs.2.5 crore of accused No.7-Sameer Sadavarte for the
failure of the land transaction, but they refused. In order to avoid
the payment of the said amount of commission, it is alleged that
they, along with accused No.1-Ravindra and accused No.8-Rajesh
Agrawal, hatched a conspiracy to kill Deven Shah. It is contended
that accused No.6-Nitin paid the amount of Rs.2,00,000/- by RTGS
to accused No.8-Rajesh, who then supplied the pistol to accused
No.1-Ravindra. Then on 13th January 2018, at around 23:10 hours,
accused No.1-Ravindra and accused No.2-Rahul went to the house
of deceased Deven armed with pistols, and in the presence of
informant Atit, they both fired at Deven, and Deven died.
Based on the report given by Atit Shah, a crime was
registered, and an investigation began. It was found that the
organized crime syndicate headed by accused No.5-Sunil Alias
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Sonu Rathod was involved in the commission of the crime and
accused of pecuniary gain, committed the present crime and
accordingly, the proposal under section 23(1)(a) for pre-sanction
was moved, and sanction was granted on 23rd March 2018 and
provisions of MCOC Act were invoked. After completing the
investigation and obtaining sanction under section 23(2), the
present charge sheet was filed.
3. The applicant preferred an application for bail before the
Special Court under the Maharashtra Control of Organised Crime
Act, 1999 (hereafter, the MCOC Act, for short). The said
application was rejected vide order dated 1 st June 2020. The
applicant has, therefore, filed a present application under section
439 of the Criminal Procedure Code, 1973.
4. Learned advocate for the applicant submitted that
considering the material in the charge sheet, no prima facie
offence is made out against the applicant either under the Indian
Penal Code or under the MCOC Act. Accepting the statements of
co-accused under section 18 of the MCOC Act, no case is made out
against the applicant. Merely because the amount of Rs.2,00,000/-
is alleged to be transferred to the applicant's account, there is no
material on record to indicate that the applicant was a member of
a conspiracy hatched by the co-accused. Except for confessional
statements of co-accused, there is no material against the
applicant. The Sessions Court has discharged co-accused Sameer
Sadavarte by order dated 26th April 2023. The role attributed to
Sameer Sadavarte is similar to the applicant's; therefore, the
applicant deserves to be released on bail. It is submitted that the
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applicant was arrested on 19th June 2018. It is unlikely that the
trial will be completed in the near future. Therefore, the applicant
deserves to be released on bail. In support of his submission, he
relied on the following judgments:
a. Iqbal Ahmed Kabir Ahmed vs. The State of Maharashtra
reported in 2021 ALL MR (Cri) 3105.
b. Angela Harish Sontakke vs. State of Maharashtra reported in
(2021) 3 SCC 723.
c. Chintan Vidyasagar Upadhyay vs. The State of Maharashtra
in Special Leave to Appeal (Crl.) No.2543 of 2021.
d. Indrani Pritim Mukerjea vs. Central Bureau of Investigation
And Another in Special Leave to Appeal (Crl.) No.1627 of 2022.
e. Union of India vs. K.A. Najeeb reported in 2021 ALL MR
(Cri.) 1587 (S.C.).
f. Ajit Bhagwan Tiwde vs. State of Maharashtra reported in
2022 ALL MR (Cri.) 1687.
5. Per contra, learned APP for the State and learned advocate
for the victim invited my attention to the confessional statements
of the assailants who attributed an active role to the applicant.
Material on record indicates the transfer of Rs.2,00,000/- by co-
accused Nitin Dangat in the applicant's account. The applicant had
a motive to conspire to commit the murder of the deceased since
the deceased had not paid the applicant's commission for the
settlement of his dispute. The chart depicting telephonic contact
between accused persons indicates a conversation between the
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applicant and the assailants between 1st April 2017 and 12th
January 2018. The conversation between the co-accused and the
applicant is also on record. The role attributed to Sameer
Sadavarte differs from the applicant's. Therefore, it is submitted
that the application deserves to be rejected.
6. I have carefully scrutinized the charge sheet, affidavit-in-
reply filed by the prosecution and material placed by the applicant
on record. On prima facie reading of the material as a whole, it
appears that the deceased Deven Shah was a builder. A
memorandum of understanding (MoU) was executed between the
deceased Deven Shah and the co-accused on 25th August 2010 as
regards 400 acres of land. In 2012, more transactions of 152 acres
of land took place between the deceased and co-accused Sameer
Sadavarte with the help of co-accused Nitin Dangat. Thereafter, co-
accused Nitin Dangat withdrew from the said transaction.
Therefore, Samir Sadaravte and Nitin Dangat were required to
repay the amount of Rs.3 crore and Rs.2.25 crore, respectively, to
the deceased towards the advance commission they accepted.
7. The confessional statements of Ravindra Chorge and Rahul
Shivtare (assailants) were recorded. Ravindra Chorge alleged to
have retracted his confession, but the effect of such retraction of a
confessional statement by Ravindra Chorge needs to be considered
at the time of trial. At this stage, confessional statements of two
assailants who fired bullets at the deceased indicate the applicant's
role. Ravindra Chorge, in his confessional statement, referred to
the applicant's involvement by stating that he used to meet the
deceased at the instance of the applicant. He stated that the
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applicant told him that the deceased was not receiving his calls.
According to the prosecution, Ravindra Chorge acted on the
applicant's instructions.
8. Moreover, statements of the witnesses Vijay Hazare, Vitthal
Nimbalkar, Prakash Vighne, and Kishor Aware indicate the nexus
of the applicant with the organized crime syndicate involved in the
incident. The material on record prima facie indicates that Deven
Shah hired the services of the present applicant and other co-
accused to settle the dispute with Nitin Dangat. The cheque issued
by Nitin Dangat for returning the commission amount was not
honoured. However, the present applicant and other co-accused
kept insisting that the deceased, Deven Shah, pay the amount he
agreed to pay them to settle the dispute. Despite their efforts, the
deceased did not pay the balance amount and, therefore, the
applicant and the other two co-accused hatched a conspiracy to kill
Deven Shah and arranged firearms.
9. Nitin Dangat transferred the amount of Rs.2,00,000/- by
RTGS in favour of the applicant. The applicant arranged a pistol
and a round which was given to Ravindra Chorge. The applicant
gave some amount to Ravindra Chorge for executing the killing of
the deceased Deven Shah.
10. The prosecution has placed on record CDR which indicates
that there were calls between the applicant and assailants between
1st April 2017 and 12th January 2018.
11. By order dated 3rd January 2023, the Co-ordinate bench of
this Court rejected the bail application of Nitin Dangat in Bail
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Application No.1537 of 2020. The Hon'ble Apex Court, by order
dated 13th April 2023, confirmed the order of rejection of bail of
Nitin Dangat.
12. In so far as the submission that the Sessions Judge has
discharged Sameer Sadavarte is concerned, in my opinion, on
careful perusal of the order of discharge, it prima facie appears
that the Sessions Judge while discharging Sameer Sadavarte
observed as under:
"17. .......... On the date of incident also accused
Sameer Sadavarte had seven to eight phone calls with the
deceased. If really he would have been a part of conspiracy
to commit murder, he must not established contact with the
deceased on that day, that too repeatedly."
13. In my opinion, the reasoning is contrary to well-established
law on the point of conspiracy. Since the basis of the discharge of
Sameer Sadavarte is based on flawed reasoning, the applicant is
not entitled to the benefit from such a discharge order. Moreover,
the applicant received an amount of Rs.2,00,000/- from Nitin
Dangat. The applicant arranged firearms which were given to
assailant Ravindra Chorge. According to the prosecution, the
applicant is a partner of Nitin Dangat. Therefore, the applicant's
role is different from Sameer sadavarte. Hence, he is not entitled
to the benefit from the discharge order of Sameer Sadavarte.
14. In so far as the last argument on behalf of the learned
advocate for the applicant that the applicant has been in jail since
19th June 2018 for the last five years is concerned, there cannot be
a dispute about the proposition of law laid down by aforesaid
judgment. From the aforesaid decisions, it emerges that speedy
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trial is the constitution's mandate and delay in certain cases may
entitle the accused to be enlarged on bail. However, it would
depend upon the nature of the crime, the gravity of the offence
and the delay committed by the accused or prosecution. In this
context, I may profitably refer to the decision rendered in the case
of Madheshwardhari Singh And Another vs the State of Bihar
reported in AIR 1986 Pat 324, wherein the Full Bench of Patna
High Court laid down as follows:
" Laying down of an outer time limit to concretise the
right to a speedy public trial is envisioned both by principle
and precedent. A callous and inordinately prolonged delay of
seven years or more (which does not arise from the default
of the accused or is otherwise not occasioned by any
extraordinary or exceptional reason) in investigation and
original trial for offences other than capital ones plainly
violates the constitutional guarantee of a speedy public trial
under Art.21. Unless the fundamental right to speedy trial is
to be whittled down into a mere pious wish, its enforceability
in Court must at least be indicated by an outer limit to which
an investigation and the trial in a criminal prosecution may
ordinarily extend. Holding otherwise would be merely
paying lip service to a precious right whilst denuding it of the
benefits of its actual enforceability.
The fixation of the outer limit of seven years must not
be misunderstood or misconstrued to mean that a delay of
less than seven years would not, in any case, amount to
prejudice. Indeed, what is sought to be laid down is the
extreme outer limit whereafter grave prejudice to the
accused must be presumed, and the infraction of the
constitutional right would be plainly established. Nor is it
sought to be laid down that in a lesser period than seven
years an accused person would not be able to establish
circumstances pointing to the patent" prejudice which may
entitle him to invoke the guarantee of speedy public trial
under Art.21. What indeed is sought to be laid down is that
beyond this period of seven years the continuation of the
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investigation and trial would bring in the weightiest
presumption that the enshrined right of speedy public trial is
violated and the prosecution should be halted in its tracks.
This would per se be indicative of prejudice. Thereafter the
burden would automatically shift heavily on to the shoulders
of the State to show that such grave delay was either entirely
the handiwork of the accused himself or was occasioned by
such special and exceptional circumstances so as to merit
condonation thereof."
15. In the aforesaid judgment, the Full Bench fixed an outer time
limit of seven years. However, they indicated a note of caution that
it should be misconstrued to mean that delay of less than seven
years would not, in any case, cause prejudice to the accused.
16. In view of the aforesaid law laid down in various decisions
cited on behalf of the applicant, it is clear that the right to a speedy
trial is the fundamental right. If the trial is delayed, it would
amount to a denial of justice and entitle an accused to be admitted
to bail. However, a significant cause of delay, whether attributable
to the prosecution or the accused, has to be borne in mind at the
time of exercise of judicial discretion for the grant of bail. The role
played by the accused in causing delay is also one of the factors
which has a bearing while considering bail application on the
ground of delay. In the facts of the case, according to the
prosecution, the pendency of the discharge application filed by
Sameer Sadavarte for three years resulted in a delay. The said
delay is not attributable to the applicant. However, considering the
nature and gravity of the offence, in my opinion, the applicant's
right to get a speedy trial can be balanced by directing the Special
Court to decide the trial as expeditiously as possible.
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17. Considering the restrictions under section 21(4) of the
MCOC Act and the material placed on record, no case is made out
for a grant of bail.
18. The bail application is, therefore, rejected.
19. The Special Court is directed to decide the trial as
expeditiously as possible.
20. In view of the disposal of the bail application, the interim
application does not survive. The same stands disposed of.
(AMIT BORKAR, J.)
