Bombay High Court
Laxman Rama Pawar @ Mahakal vs State Of Maharashtra on 16 January, 2024
Author: Prithviraj K. Chavan
Bench: Prithviraj K. Chavan
2024:BHC-AS:2139 1964-2022-BA.doc
Uday S. Jagtap
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 1964 OF 2022
Laxman Rama Pawar @ Mahakal .. Applicant
Vs.
The State of Maharashtra .. Respondent
Mr. Santosh Deshpande i/b Mr. S.M. Deshpande & Associate for
the applicant
Mr. A.A. Palkar, APP for the respondent - State
CORAM : PRITHVIRAJ K. CHAVAN, J.
RESERVED ON : 10th JANUARY, 2024
PRONOUNCED ON : 16th JANUARY, 2024
P.C.
1. The applicant is one of the 11 accused, who are being
prosecuted for the offences punishable under Sections 307, 120(B)
of the Indian Penal Code r/w Sections 3 and 25 of the Arms Act and
subsequently by invoking stringent provisions of the Maharashtra
Control of Organized Crimes Act (for short "MCOC Act") by the
DCB, CID vide C.R. No.11 of 2018, C.R. No.19 of 2019 and C.R.
No.99 of 2015. Initially, an offence against the applicant and the
rest of the accused came to be registered at Vikhroli Police Station
vide C.R. No.509 of 2019 on 19.12.2019.
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2. A few facts germane for disposal of this application can be
summarized as follows.
3. The first informant, on 19.12.2019 after worshiping in the
Sai Temple was sitting in the office of the temple. The accused no.4
- Sagar came into the office and opened a fire by means of a gun.
The bullet fired from the gun pierced into his arm, resulting into a
bleeding injury. However, the first informant along with his son
apprehended the assailant on the spot. Subsequently, accused nos. 1
and 2 also came to be arrested on 24.12.2019.
4. During the course of investigation, statements of the witnesses
came to be recorded, a memorandum panchanama under Section 27
of the Indian Evidence Act was also drawn and when it revealed
that it was an act of an organized crime syndicate, prior approval of
the competent officer was obtained under Section 23(1)(a) of the
MCOC Act. Previous sanction came to be accorded by the
Commissioner of Police, Mumbai under Section 23(2) of the
MCOC Act against the 10 accused.
5. After the investigation, a charge-sheet came to be filed. An
application for bail preferred by the applicant in the trial Court
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came to be rejected on 31.03.2021. The second application also
came to be rejected on 29.04.2022.
6. At the outset, Mr. Deshpande, learned Counsel for the
applicant in his elaborate arguments tried to demonstrate several
lacunae in the prosecutions case indicating how the applicant has
been implicated falsely on the basis of concocted material sans any
nexus either direct or indirect in the commission of the offence as
well as a member of an organized crime syndicate. Mr. Deshpande
would argue that the First Information Report came to be lodged
against an unknown person and, subsequently, the Investigating
Agency had falsely shown his presence on the spot, when in fact, he
is neither an assailant nor was present at the scene on the date of
incident. Mr. Deshpande would further argue that neither test
identification parade has been conducted nor there is any witness
who had indicated complicity of the applicant in the said crime.
7. The only material, according to the learned Counsel, put-
forth by the prosecution is in the form of confessional statement of
a co-accused and nothing else. The Court below had rejected his
application for bail only on the premise that he had been named by
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a co-accused in his confessional statement. The prosecution has
not shown that the applicant had indulged in continuing unlawful
activities nor there is any shred of evidence to show that he is a
member of an organized crime syndicate or even for that matter,
acted on behalf of such syndicate.
8. The Counsel has also questioned the previous sanction
granted by the Commissioner of Police, inasmuch as the kingpin of
the organized crime syndicate namely, Prasad Pujari, who is said to
have been chargesheeted with more than two charge-sheets namely;
DCB, CID vide C.R. No.11 of 2018, C.R. No.19 of 2019 and C.R.
No.99 of 2015 do not indicate in what manner and under which
offences he was involved in continuing unlawful activities. There is
no material indicating the involvement of the applicant in the
organized crime syndicate of Prasad Pujari.
9. Mr. Palkar, learned APP while strongly objecting release of the
applicant on bail, submits that the applicant is a member of an
organized crime syndicate who had indulged in continuing unlawful
activities which is evident from his role in providing shelter to the
prime accused, who had shot at the first informant. Mr. Palkar
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would invite my attention to the confessional statement of the
accused no.3 - Umesh Shetty indicating complicity of the applicant
in this crime. According to Mr. Palkar, the role of the applicant is
essentially is that of an abettor as provided in Section 2(1)(a)(i)(iii)
of the MCOC Act, meaning thereby not only he harboured the
assailant but also facilitated him by providing arms. Mr. Palkar
would argue that in view of rigours of Section 21(4) of the MCOC
Act, the applicant is not entitled to be enlarged on bail in light of
the fact that there are reasonable grounds for believing that he is
guilty of said offence and even it is quite possible that in case of his
release, he might commit any offence while on bail.
10. Indubitably, accused no.2 Anand Phadtare and accused no.9 -
mother of the kingpin of an organized crime syndicate have already
been released on bail and the orders have attained finality since the
prosecution has not challenged those orders in the Supreme Court.
11. This Court in an order granting bail to accused no.2 - Anand
Phadtare observed that there are no criminal antecedents against
him. Rather, accused no.9 who is the mother of the kingpin Prasad
Pujari has several crimes at her discredit not only under the
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provisions of IPC but also under the provisions of MCOC Act. A
prominent role has been attributed to her in the instant crime, in
the sense, she made financial provisions to execute the plan of
eliminating the first informant.
12. Mr. Deshpande was at pains to persuade me to highlight
significant aspects, namely absence of name of the applicant in the
alleged conspiracy, absence of nexus with Prasad Pujari and last but
not least his absence at the scene of crime.
13. Crucial material qua the applicant is the confessional
statement of accused no.3- Umesh Shetty (for short 'Umesh'),
recorded on 11.01.2020 by DCP Zone-11, Mumbai namely Dr.
Mohan Dahikar under Section 18 of the MCOC Act.
14. A perusal of the same reveals that the applicant was
introduced with co-accused - Umesh by the shooter accused no.4 -
Sagar. As per the instructions of Prasad Pujari, the applicant and
accused no.4 - Sagar had been to the house of the applicant where
Vijay and the applicant had shown him a silver coloured country
made weapon (which is worded as " lkeku" - referring to a fire arm).
The applicant had also shown photographs of the first informant to
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Umesh by informing that Anna alias Prasad Pujari (kingpin) had
shooter to eliminate the first informant. The confessional
statement further reveals that after an overnight stay at the
applicant's house, Umesh and Sagar followed the applicant on a
motor bike on the following day. The applicant was heading them
towards the house of the "target" in an auto rickshaw. Since they
could not notice the first informant due to rains, they returned to
applicant's house.
15. Meanwhile, as per the command of the kingpin Prasad Pujari,
accused no.3 - Umesh had arranged a motor bike with no license
plate from his childhood friend, accused no.2 - Anand Phadtare by
categorically informing him (Anand) the purpose for which it was
required and also promised to pay him money from the kingpin.
Accordingly, accused no.2 - Anand Phadtare provided a black
coloured Pulsar motor bike, without number plate, to the applicant.
The said motor bike was used in the commission of the offence on
19.12.2019.
16. No sooner did shooter Sagar opened fire at the injured, he
was caught red-handed on the spot by the public. However, accused
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no.3 - Umesh made his escape good on the motor bike provided by
accused no.2 - Anand Phadtare. It is a matter of record that
confessional statement of accused no.3 - Umesh refers only
"Laxman" without giving details of his father's name or surname.
No Test Identification Parade appears to have been conducted to
confirm the identity of the applicant. Be that as it may.
17. Role attributed to the applicant, as an abettor or a facilitator
is quite apparent and the same is not lesser than the role attributed
to accused no.2 - Anand Phadtare. As such, on parity, his prayer
for bail will have to be considered.
18. An authoritative pronouncement of the Hon'ble Supreme
Court in case of Kavitha Lankesh Vs. State of Karnataka & Ors.
(2022) 12 SCC 753 is pressed into service by Mr. Palkar, learned
APP wherein the Supreme Court expounded the scope and ambit of
Section 2(1)(a) of the MCOC Act. Para 29 of the judgment is
extracted below for advantage.
29. We may hasten to add that the fact that the
Investigating Agency was unable to collect material
during investigation against the writ petitioner Mohan
Nayak N. for the offence under Section 3(1) of the 2000
Act, does not mean that the information regarding
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commission of a crime by him within the meaning of
Sections 3(2), 3(3) or 3(4) of the 2000 Act cannot be
recorded and investigated against him as being a member
of the organized crime syndicate and/or having played
role of an abettor, being party to the conspiracy to
commit organised crime or of being a facilitator, as the
case may be. For the latter category of offence, it is not
essential that more than two charge-sheets have been
filed against the person so named, before a competent
court within the preceding period of ten years and that
court had taken cognizance of such offence. That
requirement applies essentially to an offence punishable
only under Section 3(1) of the 2000 Act.
30. As regards offences punishable under Sections 3(2),
3(3), 3(4) or 3(5), it can proceed against any person sans
such previous offence registered against him, if there is
material to indicate that he happens to be a member of
the organized crime syndicate who had committed the
offences in question and it can be established that there is
material about his nexus with the accused who is a
member of the organized crime syndicate. This position
is expounded in the case of Ranjitsingh Brahmajeetsing
Sharma vs. State of Maharashtra (2005) 5 SCC 294:
2005 SCC (Cri.) 1057 which has been quoted with
approval in para 85 of the judgment in Prasad Shrikant
Purohit vs. State of Maharashtra, (2015) 7 SCC 440 :
(2015) 3 SCC (Cri.) 138." ...
(emphasis supplied)
19. Mr. Palkar would also press into service another judgment of
the Hon'ble Supreme Court in case of Zakir Abdul Mirajkar Vs.
State of Maharashtra & Ors. 2022 SCC Online SC 1092 wherein it
is held that more than one charge-sheet is not required to be filed
with respect to each of the accused against whom the provisions of
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MCOC Act have been invoked. The Hon'ble Supreme Court in
case of Zakir Abdul Mirajkar (supra) has followed a ratio laid down
by the said Court in the case of Govind Sakharam Ubhe Vs. State of
Maharashtra (Criminal Appeal No.18 of 2009) (Coram: Smt.
Ranjana Desai & R.G. Ketkar, JJ) . Para 37 of the judgment in the
case of Govid Ubhe (supra) reads thus :-
"37. But even otherwise, if all provisions are read
together we reach the same conclusion. Section 2(1)(d)
which defines `continuing unlawful activity' sets down a
period of 10 years within which more than one charge-
sheet have to be filed. The members of the crime
syndicate operate either singly or jointly in commission of
organized crime. They operate in different modules. A
person may be a part of the module which jointly
undertakes an organized crime or he may singly as a
member of the organized crime syndicate or on behalf of
such syndicate undertake an organized crime. In both the
situations, the MCOCA can be applied. It is the
membership of organized crime syndicate which makes a
person liable under the MCOCA. This is evident from
section 3(4) of the MCOCA which states that any person
who is a member of an organized crime syndicate shall be
punished with imprisonment for a term which shall not be
less than five years but which may extend to
imprisonment for life and shall also be liable to fine,
subject to a minimum of fine of Rs.5 lakhs. The charge
under the MCOCA ropes in a person who as a member of
the organized crime syndicate commits organized crime
i.e. acts of extortion by giving threats, etc. to gain
economic advantage or supremacy, as a member of the
crime syndicate singly or jointly. Charge is in respect of
unlawful activities of the organized crime syndicate.
Therefore, if within a period of preceding ten years, one
charge-sheet has been filed in respect of organized crime
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committed by the members of a particular crime
syndicate, the said charge-sheet can be taken against a
member of the said crime syndicate for the purpose of
application of the MCOCA against him even if he is
involved in one case. The organized crime committed by
him will be a part of the continuing unlawful activity of
the organized crime syndicate. What is important is the
nexus or the link of the person with organized crime
syndicate. The link with the `organized crime syndicate'
is the crux of the term `continuing unlawful activity'. If
this link is not established, that person cannot be roped
in."
20. I am afraid I cannot buy the argument of Mr. Deshpande that
no chargesheet qua the applicant has been filed by the prosecution
indicating his nexus with the kingpin of the organized crime
syndicate.
21. It can thus be seen that even though no chargesheet has been
tendered qua the applicant indicating any nexus with the kingpin of
the organized crime syndicate, yet, his role as an abettor or a
facilitator seemed in the confessional statement of Umesh. There is
no requirement of two chargesheets when a crime is registered
within the meaning of Section 3(2), 3(3) or 3(4) of the MCOC Act.
22. Learned APP drew my attention to a chart indicating link and
connections between the kingpin of the organized crime syndicate -
Prasad Pujari and the other members through their respective cell
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phones. Even if one throws a glance to the said chart, at this stage,
it appears that there is no direct conversation between the kingpin
and the applicant. However, the applicant appears to have been in
touch with other co-accused. This aspect in itself would not come
in the way of considering the case of the applicant for the purpose
of granting him bail.
23. It is not necessary to multiply authorities relied upon by Mr.
Deshpande in support of his contention. Suffice it to say that this
Court in an identical case Anil Shankar Patil Vs. The State of
Maharashtra (Bail Application No.33 of 2022) (Coram: A.S.
Gadkari, J) dated 29.07.2022 drew support from various case laws
tendered across the bar pursuant to which the applicant - Anil Patil
was enlarged on bail. In case of Anil Patil (supra) the co-ordinate
bench of this Court considered prolonged incarceration of the
applicant of five years without trial coupled with his fundamental
right to have a speedy trial despite statutory restrictions
contemplated under Section 21(4) of the MCOC Act. This Court
has drawn support from the ratio laid down by the Supreme Court,
apart from other precedents, in the case of Union of India Vs. K.A.
Najeeb, (2021) 3 SCC 713. Para 10, 11, 12, 15 and 17 of the said
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judgment read thus:-
"10. It is a fact that the High Court in the instant case
has not determined the likelihood of the respondent being
guilty or not, or whether rigours of Section 43-D(5) of
UAPA are alien to him. The High Court instead appears to
have exercised its power to grant bail owing to the long
period of incarceration and the unlikelihood of the trial
being completed anytime in the near future. The reasons
assigned by the High Court are apparently traceable back
to Article 21 of our Constitution, of course without
addressing the statutory embargo created by Section 43-
D(5) of UAPA.
11. The High Court's view draws support from a batch
of decisions of this Court, including in Shaheen Welfare
Assn. v. Union of India, (1996) 2 SCC 616 : 1996 SCC
(Cri) 366, laying down that gross delay in disposal of such
cases would justify the invocation of Article 21 of the
Constitution and consequential necessity to release the
undertrial on bail. It would be useful to quote the
following observations from the cited case: (SCC p.622,
para 10)
"10. Bearing in mind the nature of the crime and
the need to protect the society and the nation,
TADA has prescribed in Section 20(8) stringent
provisions for granting bail. Such stringent
provisions can be justified looking to the nature of
the crime, as was held in Kartar Singh case [(1994)
3 SCC 569 : 1994 SCC (Cri) 899] , on the
presumption that the trial of the accused will take
place without undue delay. No one can justify gross
delay in disposal of cases when undertrials perforce
remain in jail, giving rise to possible situations that
may justify invocation of Article 21."
(emphasis supplied)
12. Even in the case of special legislations like the
Terrorist and Disruptive Activities (Prevention) Act, 1987
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or the Narcotic Drugs and Psychotropic Substances Act,
1985 ("the NDPS Act") which too have somewhat
rigorous conditions for grant of bail, this Court in Paramjit
Singh v. State (NCT of Delhi) (1999) 9 SCC 252 : 1999
SCC (Cri) 1156, Babba v. State of Maharashtra (2005) 11
SCC 569 : (2006) 2 SCC (Cri) 118 and Umarmia v. State
of Gujarat (2017) 2 SCC 731 : (2017) 2 SCC (Cri) 114
enlarged the accused on bail when they had been in jail for
an extended period of time with little possibility of early
completion of trial. The constitutionality of harsh
conditions for bail in such special enactments, has thus
been primarily justified on the touchstone of speedy trials
to ensure the protection of innocent civilians."
15. This Court has clarified in numerous judgments that
the liberty guaranteed by Part III of the Constitution would
cover within its protective ambit not only due procedure
and fairness but also access to justice and a speedy trial. In
Supreme Court Legal Aid Committee (Representing
Undertrial Prisoners) v. Union of India (1994) 6 SCC 731,
para 15 : 1995 SCC (Cri) 39, it was held that undertrials
cannot indefinitely be detained pending trial. Ideally, no
person ought to suffer adverse consequences of his acts
unless the same is established before a neutral arbiter.
However, owing to the practicalities of real life where to
secure an effective trial and to ameliorate the risk to society
in case a potential criminal is left at large pending trial, the
courts are tasked with deciding whether an individual
ought to be released pending trial or not. Once it is
obvious that a timely trial would not be possible and the
accused has suffered incarceration for a significant period
of time, the courts would ordinarily be obligated to enlarge
them on bail."
17. It is thus clear to us that the presence of statutory
restrictions like Section 43-D(5) of the UAPA per se does
not oust the ability of constitutional courts to grant bail on
grounds of violation of Part III of the Constitution. Indeed,
both the restrictions under a statue as well as the powers
exercisable under constitutional jurisdiction can be well
harmonised. Whereas at commencement of proceedings,
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courts are expected to appreciate the legislative policy
against grant of bail but the rigours of such provisions will
melt down where there is no likelihood of trial being
completed within a reasonable time and the period of
incarceration already undergone has exceeded a substantial
part of the prescribed sentence. Such an approach would
safeguard against the possibility of provisions like Section
43-D(5) of the UAPA being used as the sole metric for
denial of bail or for wholesale breach of constitutional right
to speedy trial."
24. There can be no second thought on the rigours of Section
21(4) of the MCOC Act, nevertheless, it is essential to observe the
culpability and extent of the applicant's involvement in the
commission of an organized crime either directly or indirectly, as
discussed hereinabove.
25. The applicant has already spent around four years in the
custody with little possibility of early completion of the trial. Apart
from the ground of parity, he cannot be detained indefinitely as an
under trial.
26. Despite statutory restrictions of Section 21(4) of the MCOC
Act, ability of constitutional Court, per se, does not oust its powers
to grant bail to under trials on the grounds of violation of part III of
the Constitution.
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27. Needless to state that these are prima facie observations sans
merits of the case only to the extent of considering application for
bail. The trial Court shall not get influenced with the observations
made hereinabove.
28. Having made a harmonious analysis of relevant aspects,
following order is expedient.
ORDER
(i) The application is allowed.
(ii) The applicant - Laxman Rama Pawar @ Mahakal be
released on executing a PR bond in the sum of Rs.1,00,000/-
(Rupees One lac) with one or two sureties in the like amount
to the satisfaction of the trial Court in C.R. No.509 of 2019
by the Vikhroli Police Station investigated by DCB CID vide
CR No.230 of 2019.
(iii) The applicant shall report Vikhoroli Police Station on
every Sunday between 3.00 p.m. to 5.00 p.m, till the
conclusion of the trial.
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(iv) The applicant shall not directly or indirectly make any
inducement, threat or promise to any person acquainted with
the facts of the case so as to dissuade him from disclosing the
facts to Court or any Police Officer. The applicant shall not
tamper with evidence.
(v) The applicant shall furnish his cell number as well as
residential address to the Investigating Officer. In case, there
is any change in the cell number or the residential address, the
same shall be informed to the Investigating Agency.
(vi) The applicant shall surrender his passport with the
Investigating Officer, if any.
(vii) Needless to state that in case of breach of any of the
condition hereinabove, liberty to the prosecution to pray for
cancellation of his bail.
29. The application stands disposed of.
(PRITHVIRAJ K. CHAVAN, J.)
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