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Bombay High Court
Akhilesh Shailesh Tiwari vs The State Of Maharashtra on 5 December, 2025
2025:BHC-AS:53340
4.BA-759-2025
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO.759 OF 2025
Akhilesh Shailesh Tiwari ... Applicant
V/s.
The State of Maharashtra ... Respondent
Mr. Nitin Sejpal a/w. Ms. Pooja Sejpal, Advocate for the
Applicant
Mrs. Kranti T. Hiwrale, APP, for the Respondent - State
Mr. Sanjay Chavan, PSI, Virar Police Station, present
CORAM : SANDESH D. PATIL, J.
DATE : 5TH DECEMBER, 2025.
JUDGMENT :
-
1. By the present application, the applicant is seeking bail
in MCOC No. 518 of 2012 pending before the learned Special
Judge MCOC, Thane, arising out of CR No. I-232 of 2022
registered under Sections 302, 201, 212, 120 (B) of the Indian
4.BA-759-2025
Penal Code and Sections 3, 25, 27 of the Arms Act. So also under
Sections 3(1) (i), 3 (1) (ii), 3(2), 3(3) and 3(4) of the MCOC Act.
2. The incident in respect of which FIR is lodged had
taken place on 26th February 2022. The accused was arrested on
14th July 2022. The FIR was registered by one Shashikant Chavan
as his brother Samay was murdered.
3. During the investigation, it was revealed that there are
certain builders, who in conspiracy have committed the offence.
The investigation was completed, chargesheet was filed. After the
arrest of the present co-accused supplementary chargesheet was
filed.
4. Mr. Sejpal, the learned counsel appearing for the
applicant contended that the only role attributed to him is that he
was conspirator in the offence. He has taken me to two
confessional statements, which are recorded under the provisions
of Section 18 of the MCOC Act, which shows involvement of the
4.BA-759-2025
present applicant. The said statements are of Rahul Sharma and
Arjun Singh. The confessional statement of Arjun Singh
specifically names the present applicant as one, who has shown
the photographs of the deceased and has asked them to go the
Mumbai along with Rahul Sharma.
5. The learned counsel, Mr. Sejpal submits that except the
two confessional statements recorded under Section 18 of the
MCOC, there is no material of whatsoever nature against the
applicant.
6. He states that the other accused are granted bail. He
relies upon certain orders passed by this Court releasing the
co-accused Ashish Shukla, Ashok Sharma, Akash Ashok Sharma,
Rajkumar Yadav, co-accused Naitik Ajit Tiwari, co-accused,
Abhishek Singh and co-accused, Rahul Dubey on bail.
7. The learned counsel, Shri Sejpal submits that this court
while releasing the co-accused Rahul Dubey has specifically
referred to the confessional statement of the co-accused.
4.BA-759-2025
8. The learned APP points out that there are two
confessional statements of the co-accused. She states that the
confessional statements under Section 18 of the MCOC Act are
relevant for the purpose of deciding bail. She states that although
the learned counsel, Mr. Sejpal has relied upon orders passed by
this court granting bail to the co-accused, the parity cannot be
applied in this case. She states that the accused was absconding for
a period of more than 4 months and therefore, application for
bail ought to be rejected.
9. With the able assistance of the learned counsels
appearing for the parties, I have perused the chargesheet, the
orders passed by this Court as well as the learned Special Court.
10. The case against the applicant is not that he was the
actual assailant. The case is that he had conspired along with the
others to commit murder of the deceased. The gang leader is said
to be one Rahul Sharma, who took the contract to commit
murder.
4.BA-759-2025
11. The allegations against the applicant is that he has
shown the photograph of the deceased to the other co-accused.
The allegations is that Rs.7,000/- were given to Arjun Singh.
12. The accused has been arrested on 14 th July 2022 and he
is in jail since then. Upon query made to both the counsels, they
informed me that there are about 91 witnesses, which are sought
to be examined. Both the counsels state that even the charge is not
framed in the matter.
13. No doubt the statements under provisions of MCOC
Act are relevant for the purpose of deciding the bail application.
Although the learned APP relies upon the confessional statement
of Arjun Singh and specifically emphasizes the relevant paragraph,
which is on Page No.197, which states that "the present accused
called the said witness and asked him to go to Mumbai" . She also
states that certain money was given to the said accused by the
present applicant.
4.BA-759-2025
14. The learned counsel, Mr. Sejpal however invites my
attention to the statement of same witness, which was recorded
before the Chief Judicial Magistrate, Thane on 9 th February 2022.
He has specifically referred to the paragraph on Page No.188,
which states that except the bracketed portion at A, B, C, D, E,
rest of the portion is not admitted by him. He has thus retracted
the confessional statement, before the Chief Judicial Magistrate.
15. The evidentary value of such retracted confessional
statement has to be considered at the time of trial. Prima facie
except this confessional statement, there is nothing against the
present applicant to show his involvement in the offence.
16. It is also required to be noted that the accused is in jail
since 14th July 2022. There are about 90 witnesses, which are
sought to be examined by the prosecution in this case. As on
today, even charge has not been framed. Thus trial will take pretty
long time. The Apex Court in the matter of Union of India V/s.
K.A. Najeeb reported in (2021) 3 SCC 713 has considered this
aspect as under :-
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"18. It is thus clear to us that the presence of statutory
restrictions like Section 43D (5) of UAPA
perse 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, 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 43D (5) of UAPA being used as the sole
metric for denial of bail or for wholesale breach of
constitutional right to speedy trial."
17. No doubt, it is true that the modified provisions of
Section 21 of MCOC Act are very stringent, however, taking into
consideration the long incarceration of the present applicant,
without trial being commenced and further taking into
consideration, the retracted confession of the co-accused, I feel
that this is a fit case where bail deserves to be granted to the
applicant. Therefore, the present Bail Application is allowed on
the following terms and conditions :-
4.BA-759-2025
ORDER
(a) The applicant be released on bail in connection with
MCOC Case No.518 of 2012 pending before the
learned Special Judge MCOC, Thane, arising out
C.R. No. I-232 of 2022 registered with the Virar
Police Station for the offence punishable under
Sections 302, 201, 212, 120 (B) of the Indian Penal
Code and Sections 3, 25, 27 of the Arms Act and
under Sections 3(1) (i), 3 (1) (ii), 3(2), 3(3) and 3(4)
of the MCOC Act, 1999, on PR Bond of
Rs.1,00,000/- (Rupees One Lac Only) with one or
two sureties of the like amount.
(b) The applicant shall not tamper with the evidence or
attempt to influence any witness in any manner.
(c) The applicant shall appear before the Trial Court on
every date unless exempted.
(d) The applicant to report to the Mira-Bhayander
Vasai - Virar Commissionerate on every Monday
between 10.00 a.m. to 2.00 p.m. until further
orders.
(e) The applicant shall give his mobile number, Aadhar
number, his permanent address as well as his
temporary address to the Investigating Officer.
(f) The applicant shall not enter the limits of the
Vasai-Virar Municipal Corporation.
(g) The applicant shall not indulge in any criminal
activity during the pendency of the trial.
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(h) The applicant will attend the Court on every date.
In the event the applicant absents himself for two
consecutive dates of hearing; the prosecution shall
have liberty to move an application for cancellation
of bail.
(i) Bail Application is disposed of.
(SANDESH D. PATIL, J.)
amraut
