Bombay High Court
Vinod Ramesh Thorat vs The State Of Maharashtra And Another on 16 January, 2024
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2024:BHC-AUG:1192-DB
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 31 OF 2024
VINOD RAMESH THORAT
VERSUS
THE STATE OF MAHARASHTRA AND ANOTHER
...
Advocate for Petitioner : Mr. N.L.Chaudhari
Addl. PP for Respondent/s - State : Mr. M.M.Nerlikar
...
CORAM : MANGESH S. PATIL AND
SHAILESH P. BRAHME, JJ.
DATE : 16 JANUARY 2024
FINAL ORDER (PER : SHAILESH P. BRAHME, J.) :
. Heard both sides finally.
2. The petitioner is invoking jurisdiction of this Court
under Articles 226 and 227 of the Constitution of India, seeking
pre-arrest protection in pursuance of Crime No. 275 of 2023 of
Azad Nagar Police Station, Dhule, District Dhule, for the offences
punishable under Sections 302, 364, 143, 147, 148, 149, 323, 504,
506, 120 (b), 109, 201, 75 of IPC, under Section 4/25 of Arms Act,
under Sections 37(1) (3)/135 of Maharashtra Police Act and under
Sections 31(i), 3(2), 3(4) of Maharashtra Control of Organized
Crimes Act, 1999 (hereinafter referred to as 'MCOC Act' for sake of
brevity and convenience).
3. On 09.10.2023, offence was registered at the instance
of Vinayak Jagan Salunke/brother of deceased Shubham. It is
alleged that Shubham was working with the petitioner, but due to
the differences he disassociated from him and since then the
petitioner was having grudge against him. On 09.10.2023 at about
01.00 am informant learnt about assault on Shubham and rushed
to hospital. Shubham was found to be brutally assaulted by sharp
weapons who narrated the incident of assault by eight accused
persons named them. He succumbed to the injuries by 09.50 a.m.
Shubham was assaulted by the accused persons at 10.30 p.m on
08.10.2023 at Gandhi Putala. He was taken to dumping ground at
Warkhedi Road where he was again assaulted.
4. The investigation is yet to be concluded. No charge-
sheet has been filed. First Information Report does not disclose
name of the petitioner. His name has been disclosed during the
course of the investigation. Material is being collected against him.
On 01.11.2023, a proposal was submitted to Special Inspector
General of Police, Nashik for approval under Section 23 (1) of
MCOC Act. The approval was granted by order dated 23.11.2023.
Petitioner has been added as accused and offence under Sections
3(1)(1), 3(2), 3(4) of MCOC Act, are added. The petitioner has
not be arrested till this date.
5. Petitioner submitted Anticipatory Bail Application No.
974 of 2023 before Special Judge, Dhule. It was rejected by order
dated 06.12.2023. Under these circumstances, the petitioner is
seeking pre-arrest protection.
6. Learned counsel Mr. N.L. Chaudhary has advanced
following submissions :
a) There are no allegation against petitioner in FIR. He is falsely
implicated in the offence due to political rivarly. He is a social
worker and belongs to Bhartiya Janata Party.
b) Deceased Shubham was habitual offender. More than 15
cases were pending against him. He had filed false complaints
against son of the petitioner and another i.e. Crime No. 179 of
2022. Petitioner's wife Lalita was abused and her modesty
outraged by deceased. On 25.02.2023, an offence bearing CR No.
62 of 2023 was registered against him. Thus, there was animosity
between petitioner and the deceased.
c) The petitioner is falsely implicated at the instance of former
MLA Mr. Anil Gote. Mr. Gote and his wife had a grudge due to
offence bearing CR No. 94 of 2016 and offence bearing CR No. 13
of 2018 stated to have been registered by Mrs. Hema Anil Gote.
d) The provisions of MCOC Act are not attracted. The offence
does not fall within the ambit of Sections 2(e) or 2(f) of the Act
and at the most it could be only under the provisions of Indian
Penal Code.
e) No charge-sheet has been filed against the petitioner till this
date in any of the offences registered against him. There is not a
single offence registered against the petitioner along with other co-
accused. No case is made out for offence under Sections 3 (i) (i), 3
(2) and 3 (4) of Act.
f) It is an abuse of process of law. The petitioner is ready to co-
operate with the police.
g) Lastly, it is submitted that cognizance should not have been
taken and investigation should not have been done by adding the
provisions under the Act.
h) Learned counsel for petitioner seeks reliance on following
judgments of the Supreme Court and this Court :
i) The judgment dated 30.05.2022 in Special Leave to Appeal
(Cri.) No. 1815 of 2022 Mohammad Iliyas Mohamad Bilal
Versus The State of Gujarat.
ii) The judgment of this Court in the matter of Surjitsingh
Bhagatsingh Gambhir Versus State of Maharashtra in Writ
Petition No. 913 of 2019 dated 13.09.2019.
iii) The judgment of this Court in the matter of Shabana
Parveen Inayatullah Shaikh Versus State of Maharashtra in
Writ Petition No. 1959 of 2021 dated 13.08.2021.
iv) Hema Mishra (Km.) Versus State of Uttar Pradesh,
reported in AIR 2014 SC 1066.
7. Learned APP repels the submissions in following
manner :
a) There was a cogent material placed before approving
authority against the petitioner and approval was obtained under
Section 23(1) of the Act. There is incriminating material collected
against the petitioner.
b) The charge-sheet has not been filed and the investigation is
under way. The petitioner has an opportunity to point out to the
Special Court at the time of taking cognizance under Section 23(2)
that provisions of the Act are not attracted.
c) The petitioner has been absconding. He is needed for the
custodial interrogation and to conclude the investigation.
d) Learned APP places on record the proposal for approval
submitted under Section 23(1) of the Act to demonstrate the
criminal antecedents of the petitioner including involvement in
organized crime and formation of the crime syndicate.
e) The papers of investigation have been referred to show
incriminating role played by the petitioner, his modus and motive
for eliminating Shubham.
f) Learned APP seeks reliance upon following judgments.
i) Zakir Abdul Mirajkar Versus State of Maharashtra and
Others, reported in 2022 (9) SCR 150 ;
ii) Abhishek Versus State of Maharashtra and Others, reported
in AIR 2022 SC 2488.
8. We have considered rival submissions of the parties.
With the assistance of both the counsels, we have gone through
the papers of investigation and the documents annexed to the
petition.
9. It transpires that charge-sheet is yet to be filed and
investigation is under-way. There is a brutal assault on deceased
Shubham with deadly weapons. The petitioner has not been
arrested. The proposal for sanction submitted to Special Director
General of Police shows that material was placed before him
seeking approval under Section 23 (1) of the Act. An approval has
been granted by order dated 23.11.2023.
10. It is a matter of record that there were few offences
registered against deceased Shubham. We have carefully gone
through the complaints of CR No. 179 of 2022 for offence under
Sections 324, 323, 504, 506 and 34 of IPC, complaint bearing CR
No. 62 of 2023, under Sections 354, 452, 392, 323, 504, 506 and
CR No. 131 of 2018 under Section 354 of IPC. There is reason to
believe that there was rivarly between the petitioner and deceased
Shubham. The material placed on record by learned APP indicates
that there is a motive for the petitioner to eliminate deceased
Shubham. The submissions of learned counsel for the petitioner
about his false implication cannot be accepted at this stage.
11. We have noticed that deceased Shubham was history-
sheeter. Simultaneously, the papers of investigation show criminal
antecedents of petitioner also. Just because the deceased was
history-sheeter that cannot be a ground to grant relief to the
petitioner. Other material and overall circumstances would be
necessary to be considered.
12. The investigation is under way. The petitioner will have
an opportunity to point out to the Special Court at the stage of
taking cognizance of the offence under Section 23(2) of the Act
that no case is made out to attract provisions of MCOC Act. After
completion of the investigation, the matter can be examined by the
competent court to verify the ingredients of Section 2(e) and 2(f)
of the Act. It would be too hazy at this stage to conclude that
neither organized crime nor organized crime syndicate is spelt out.
We reject the submission of the learned counsel for the petitioner
in this regard.
13. The petitioner has not made himself available for
investigation. The proposals submitted for securing approval under
Section 23(1) of the Act indicates prima-facie material to proceed
against the petitioner under the provisions of the Act. The
competent authority having been satisfied, has granted approval.
We do not see any perversity or patent illegality in it. Due
procedure appears to have been followed for proceeding against
the petitioner under the Act. We do not approve the submission of
the petitioner that it is an abuse of process of law to apply the
provisions of MCOC Act.
14. The learned counsel for the petitioner submits that not
a single charge-sheet has been filed in any of the offence registered
against the petitioner. The investigation of the present offence is
yet to be concluded. We have already recorded that the petitioner
will have an opportunity to point out to the Special Court that the
provisions of the Act are not attracted. The implications of not
filing charge-sheet can be examined after completion of the
investigation. We do not propose to offer any comment at this
stage.
15. The judgment cited by the petitioner in the matter of
Surjit Singh Gambhir (supra) and Shabana Parveen (supra) are
distinguishable. In both the matters, charge-sheet was filed and
there was order of sanction under Section 23(2) of MCOC Act. The
case in hand is yet to reach that stage. Therefore, the judgments
cited by the petitioner can not be made applicable.
16. Learned APP refers to incriminating material against
the petitioner. He vehemently urges the need of custodial
interrogation. Our attention is invited to page nos. 267, 269, 271,
390, 392, 396, 612, 620 and 622 to demonstrate involvement of
the petitioner.
17. The police has recorded memorandum panchnama of
co-accused Mahesh under Section 27 of the Evidence Act showing
place where the petitioner had instigated the co-accused to do
away with Shubham by offering cash. It is corroborated by the
certificate under Section 65 (b) and video clip. We have been
shown the statements of Meerabai to show the animosity between
the petitioner and the deceased. NCR No. 116 of 2023 registered
at the instance of Meerabai, written complaint by deceased
Shubham dated 11.11.2022 show apprehension of the deceased
against the petitioner.
18. The list of the offences registered against the petitioner
discloses seventeen offences. Out of them there is acquittal in three
offences. Besides that three non-cognizable cases are registered
against him. The petitioner has not made himself available for the
investigation. We have also been shown CDR disclosing mobile
conversation of the petitioner with co-accused. The learned APP is
justified in contending that there is a need of custodial
interrogation. There is overwhelming material showing
involvement of the petitioner.
19. Considering the police papers, we are of the considered
view that the custodial interrogation of the petitioner is necessary.
Considering the gravity of the offence, this is not a fit case to grant
pre-arrest protection. In Abhishek (supra) paragraph no. 21 reads
as follows:
"21. As regards the implication of proclamation having
been issued against the appellant, we have no hesitation
in making it clear that any person, who is declared as an
'absconder' and remains out of reach of the investigating
agency and thereby stands directly at conflict with law,
ordinarily, deserves no concession or indulgence. By way
of reference, we may observe that in relation to the
indulgence of pre-arrest bail in terms of Section 438
CrPC, this Court has repeatedly said that when an
accused is absconding and is declared as proclaimed
offender, there is no question of giving him the benefit of
Section 438 CrPC. What has been observed and said in
relation to Section 438 CrPC applies with more vigour to
the extraordinary jurisdiction of this Court under Article
136 of the Constitution of India. The submissions on
behalf of the appellant for consideration of his case
because of application of stringent provisions impinging
his fundamental rights does not take away the impact of
the blameworthy conduct of the appellant. Any claim
towards fundamental rights also cannot be justifiably
made without the person concerned himself adhering to
and submitting to the process of law."
20. We find merit in the submissions of learned APP.
21. The petitioner is not entitled to pre-arrest bail. The
Writ Petition is dismissed.
[ SHAILESH P. BRAHME, J. ] [ MANGESH S. PATIL, J. ]
Thakur-Chauhan/-
