Bombay High Court

State Of Maharashtra vs Kasim @ Talaf Mukhtar Irani on 28 August, 2023

Bench: R.P. Mohite-Dere, Gauri Godse

2023:BHC-AS:24563-DB




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 varsha                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             CRIMINAL APPELLATE JURISDICTION

                              CRIMINAL APPEAL NO. 935 OF 2023

                 State of Maharashtra
                 (Through Ambarnath Police Station)              ... Appellant
                             vs.
                 Kasim @ Talaf Muktar Irani
                 R/at Near Ambivali(West),
                 Taluka Kalyan, District Thane
                 At present in Adharwadi Jail at Kalyan.         ... Respondent

                 Mrs P.P. Shinde, APP for the Appellant.
                 Mr Niranjan S. Mundargi, Amicus appointed for Respondent.

                                          CORAM : REVATI MOHITE DERE &
                                                 GAURI GODSE, JJ.

DATED : 28th AUGUST, 2023

ORAL JUDGMENT (PER: REVATI MOHITE DERE, J.)

1. Heard learned counsel for the parties.

2. Admit.

3. By this appeal, preferred under section 12 of the MCOC

Act, the appellant-State of Maharashtra seeks quashing and

setting of the impugned order dated 26th July 2023, passed by the

learned Special Judge (under the MCOC Act), Thane, below

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remand report dated 26th July 2023 in C.R No. 461 of 2022,

registered with the Ambernath Police Station, Thane. The

learned APP submitted that the findings recorded by the learned

Special Judge in its Order passed below remand report dated 26 th

July 2023, i.e. the order at Exhibit-F at page 44, is unsustainable

in law. She submits that merely because, the respondent-accused

was arrested in an earlier MCOC case, the police custody could

not have been refused in the second MCOC case, more

particularly, when the present C.R is different and distinct from

the first MCOC case.

4. Mr Niranjan Mundargi, learned counsel appointed to

appear on behalf of respondent vide order dated 25 th August

2023, opposes the appeal.

5. Perused the papers. On 24th August 2023, notice was issued

to the respondent-accused returnable on next date i.e. 25th

August 2023, considering the urgency in the present case.

Learned APP had assured to serve the respondent-accused lodged

in the Aadharwadi Jail, Kalyan during the course of the day. Vide

the said order dated 24th August 2023, we had directed the

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Superintendent, Aadharwadi Jail, Kalyan to permit the concerned

officer to serve the respondent-accused with the notice and had

also directed the Superintendent, to record the statement of the

Respondent No.2, as to whether the respondent-accused intends

to engage an advocate of his choice, or would want an advocate

from the High Court Legal Services Committee to be appointed.

6. Pursuant to our order dated 24th August 2023, the officer

of the State of Maharashtra attempted to serve notice on the

respondent-accused, however, he refused to accept the notice.

Accordingly, the Superintendent of Aadharwadi Jail, Kalyan,

submitted his report. In the said report, it was stated that the

respondent-accused orally informed that he would be engaging a

private advocate. Since, none appeared for the respondent-

accused on 25th August 2023, we appointed Mr Niranjan

Mundargi, to appear on behalf of respondent-accused, to espouse

his cause.

7. A few facts as are necessary to decide the Appeal are as

under:

I) On 30th August 2022, C.R No. 461 of 2022 was registered

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with the Ambernath Police Station, Thane, as against unknown

persons, for the alleged offence punishable under section 392

read with section 34 of the IPC(subsequently section 394 was

substituted by section 392). In the very same case i.e. the

aforesaid C.R, MCOC was invoked on 20th October 2022,

pursuant to which sanction was accorded by the competent

authority under section 23(1)(a) of the MCOC Act. The

confessional statement of co-accused in the said case i.e. of Karan

Rajbhor was recorded in the said case under section 18 of

MCOC Act.

II. On 8th July 2023, the respondent-accused came to be

arrested in connection with C.R. No. 17 of 2021 registered with

the Khadakpada Police Station, Kalyan, Thane for the alleged

offences punishable under section 392 read with section 34 of

IPC and under sections 3 and 25 of the Arms Act.

III. On 11th July 2023, pursuant to transfer warrant,

respondent-accused came to be arrested in C.R. No. 67 of 2021,

registered with the Khadakpada Police Station, Kalyan, Thane for

the alleged offences punishable under section 392 read with

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section 34 of the IPC.

IV. Thereafter, again on 15th July 2023, on a transfer warrant,

the respondent-accused came to be arrested in connection with

C.R No. 121 of 2021, also registered with the Khadakpada

Police Station, Kalyan, Thane, for the alleged offence punishable

under section 392 read with section 34 of the IPC.

V. Thereafter, on 18th July 2023, on production warrant he

was arrested in connection with C.R No. 359 of 2022 registered

with the Khadakpada Police Station, Kalyan, Thane, for the

alleged offences punishable under sections 307, 141, 143, 147,

148, 149 of the IPC. In the said C.R, MCOC Act was invoked on

29th November 2022 and sections 3(i)(ii), 3(2), 3(4) of the

MCOC Act, were added. In the said C.R i.e. C.R No. 359 of

2022 after invocation of MCOC Act, police custody of 5 days

was granted.

VI. On 24th July 2023, the police of the Ambernath Police

Station filed an application seeking production warrant of the

respondent-accused, for arresting him in connection with C.R

No. 461 of 2022, in which MCOC Act was invoked as noted

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above, on 20th October 2022. The said application seeking

issuance of production warrant is at Exhibit-D, at page 32 of the

appeal.

VII. Pursuant thereto, the learned Special Judge issued

production warrant on 24th July 2023. Accordingly, on 26th July

2023, pursuant to the production warrant issued by learned

Special Judge, respondent-accused was produced before the

learned Special Judge, MCOC Court, Thane on 26 th July 2023.

The remand record filed by the police of the Ambernath Police

Station is at Exhibit-E at page 35 of the appeal. Learned Special

Judge on the same day, refused to grant police custody after

observing as under:

"The prosecution is seeking police custody of the accused for 20 days. Perused the papers. The accused came to be arrested and produced for the first time after receipt of prior approval under MCOC Act. The approval under the MCOC Act was already been invoked against present accused. Based on the same material, in present crime also the MCOC invoked. The accused said to have indulged in chain snatching offences. Thus, irrespective of grounds mentioned in the

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remand report, the accused is remanded to JCR till 09.08.2023."

8. As noted above, the observation of the learned Special

Judge, that MCOC Act was already invoked against the present

appellant and that based on the said material again MCOC Act

was invoked, cannot be sustained, in as much as, the earlier C.R

in which MCOCA was invoked i.e. in C.R No. 359 of 2022, was

registered with the Khadakpada Police Station, Kalyan and was in

connection with a case registered for the alleged offences

punishable under sections 307, 141, 143, 147, 148, 149 of the

IPC. The present C.R i.e. C.R No. 461 of 2022, registered with

the Ambernath Police Station, Thane, in which police custody

remand has been refused, pertains to AN offence punishable

under section 392 read with section 34 (subsequently section 394