High Court

Legal Reasoning

1 902-BA-549-24.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD BAIL APPLICATION NO. 549 OF 2024MAHESH VITTHAL WAGHVERSUSTHE STATE OF MAHARASHTRA...Advocate for Applicant : Mr. A. M. Gaikwad holding for Mr. R. K. TemkarAPP for Respondent : Smt. A. S. Mantri…AND/WITHBAIL APPLICATION NO. 163 OF 2024AKASH PANDURANG SHINDEVERSUSTHE STATE OF MAHARASHTRA...Advocate for Applicant : Mr. N. S. GhanekarAPP for Respondent : Smt. A. S. Mantri…AND/WITHBAIL APPLICATION NO. 474 OF 2024KIRAN BABAN KOLPEVERSUSTHE STATE OF MAHARASHTRA...Advocate for Applicant : Mr. R. R. KarpeAPP for Respondent : Smt. A. S. Mantri…AND/WITHCRIMINAL APPLICATION NO. 1388 OF 2024 IN BA/474/2024ANIL RAMCHANDRA GHADGEVERSUSKIRAN BABAN KOLPE AND ANOTHER…AND/WITHWITH CRIMINAL APPLICATION NO. 1569 OF 2024 IN BA/549/2024ANIL RAMCHANDRA GHADGEVERSUSMAHESH VITTHAL WAGH AND ANOTHER…Advocate for Applicant : Mr. S. V. Sudrik holding for Mr. S. S. Jadhavar (Cr. Application Nos.1388 and 1569 of 2024)AGP for Respondent/State : Smt. A. S. Mantri 2 902-BA-549-24.odtCORAM :S. G. MEHARE, J.DATE:03-05-2024PER COURT :-1.Heard the learned counsels for the applicants, learned A.P.P.for the respondent/State and the learned counsel for thecomplainant.2.The applicants/accused are seeking bail in C.R.No.641 of2023, registered with Police Station Rahuri, District Ahmednagar,for the offences punishable under Sections 394, 395, 364A, 323,341, 427, 504, 506, 120B read with Section 34 of the Indian PenalCode, Sections 4/25 of the Arms Act, Sections 37(1)(3)/135 of theMaharashtra Police Act and Sections 3(1)(ii), 3(2), 3(4) of theMaharashtra Control of Organized Crime Act, 1999.3.The prosecution case in brief is that the incident happenedon 12.08.2023 at 9.30 p.m. near Mula Dam Phata on AhmednagarManmad highway road, near one Pawar petrol pump.Thecomplainant and his driver went to Ahmednagar. In the morning,they went to the hostel of the complainant's son. They also wentto One electric material shop owned by Pradeep Nahar behindA.D.C.C. Bank. He took Rs.6,00,000/- from him as a hand loan andalready had Rs.3,00,000/- with him at about 8.30 p.m. Theystarted for Rahuri. When they reached near the spot of theincident, a silver colour car intercepted their car, and four persons 3 902-BA-549-24.odtbetween the age group of 25 to 35 alighted from a silver colourcar. They had masked their faces and were holding sharp kattis.One of them broke the glass of the driver's side. He opened thedoor, dragged the driver from his seat, and sat him on the rearseat, where two sat with them. Two persons sat on the front side.They had covered their eyes with cloth. They took Rs.9,00,000/-,his golden chain and golden ring from his right hand finger. Theytravelled for half an hour and left at one place. They againdemanded money from him. They assaulted him. They alsothreatened to kill him if he would not pay them money from hisbrother. The first information report was against unknown persons.The crime was under investigation. P.S.I. Tushar, Crime Branch, hasreceived secret information. So he laid a trap near one Mula Damphata on 16.06.2023. Police found six persons walking there. Theygot suspicion against them. Hence, he went towards them. So,they fled away. Out of six, four were apprehended, and two fledaway. From amongst those four, the applicants are not the personsapprehended. However, the persons apprehended told police thatthe persons who fled away were also not the applicants before theCourt. During the inquiry with them, the police learnt that theywere rekeying with applicants Kiran and Aakash for one month.4.Then, police collected CCTV footage. The first CCTV footagewas collected from the shop of Kunal Nahar. In that CCTV footage,the silver colour car was seen following the car of the complainant. 4 902-BA-549-24.odtIt was noticed that a grey colour Duster car was following the carof complainant. However, it had no number plate. Then the samecar was found at 8.40 p.m. near S.B.I. Chowk, and then seen nearPatil Hospital at 23.12. p.m. Before that, the same car was seennear Avinash Classes at 18.08 hours. On the basis of this material,the prosecution arrested the applicants and recovered from themthe money and golden chain from the person of the accused KiranKolap. Then, the police obtained the sanction to apply for MCOCA,and accordingly, MCOCA was applied. Applicant Mahesh wasgranted bail. However, by the Court's order, his bail was, and hewas arrested as MCOCA was applied.5.The common thread of the arguments of the learned counselfor the applicants is that the material collected against theaccused is not sufficient to involve them in the crime. There wereno crimes registered against them applying for MCOCA. The crimesregistered against Aakash were for the body offences, and thepresent applicants were co-accused in none of the crimes. It hasalso been pointed out that in most cases he has been acquitted.There is no evidence to believe that those were the members ofthe organized crime syndicate.6.As far as applicant Kiran is concerned, this is the first crimeof this type registered against him. He is a Police Constable.However, he has no good terms with his officials as he had 5 902-BA-549-24.odtimpugned the order of the seniors in the MaharashtraAdministrative Tribunal. He has been falsely trapped in the crime.He has no concern with said matter which he is allegedly chasingthe car of the complainant. Co-accused Anil Maldode was shownwalking on foot near the shop of Nahar. None of the CCTV footageshows that the applicant, Kiran was in the car, and there is noevidence of who was driving that car. In the first informationreport, the description of the golden chain is not given, nor themake of the vehicle mentioned. In CCTV footage, it has also beenobserved that there was a gap of 25 minutes in reaching these twodifferent cars at SBI Chowk. It is a heavy-traffic road. AccusedKiran explained that he owned the golden chain that wasrecovered. The strict procedure of recovery and identification ofmuddemal property was not followed. After recovering the goldenchain from his person, the complainant was shown it, and he saidit was his golden chain, and inference is drawn that it was stolenproperty. Accused Kiran was charged of the offence punishableunder Section 376 of the Indian Penal Code. However, he has beenacquitted of that crime. Except for this crime, he has no criminalhistory.7.So far as applicant/accused Akash is concerned, there arecrimes of petty offences against him. Learned counsel for him hasgiven details from the chart produced from the chargesheet andargued that some offences are punishable with imprisonment of 6 902-BA-549-24.odtless than three years, hence, insufficient to attract MCOCA.Another common thread of the arguments of the learned counselfor the accused is that a single crime is not sufficient to attractMCOCA. The recovery of money is not incriminating evidenceagainst the accused. The recovery of Rs.2,00,000/- from the houseof co-accused Aakash also does not link him with the crime. Hehad never been in contact with any of the co-accused before theincident. He was not a member of an organized crime syndicate.Since many crimes are to his discredit, he has been roped in aserious crime. At the most, this case may be a road robberycommitted by an unknown person. The waist belt is a commonarticle. Its recovery from the accused does not linked to the crime. 8.Learned counsel for applicant/ Mahesh states that he hasinadvertently filed an application before the Sessions Judge fordefault bail. He would withdraw that application, and thisapplication may be decided upon.9.Learned A.P.P. strongly opposed the applications, contendingthat accused Kiran Kolape is the mastermind. He is from the policedepartment. He has good knowledge of crime and criminals. Thelearned counsel assisting her added that he collected all habitualcriminals to commit serious crimes. He had been chasing thecomplainant since from Ahmednagar. He had eight cell phonenumbers. He knew the loopholes of the law; hence, he 7 902-BA-549-24.odtdeliberately removed the number plate from the car chasing thecomplainant. He has rightly pointed out that to have more thanone chargesheet against all members is not the requirement orcondition of Section 2(1)(d) of the MCOC Act. They havevehemently argued that the evidence of consistently chasingvehicles is strong evidence against them. The CCTV footagerecovered and transcribed clearly established that all accusedwere members of organized crime syndicate. They havecommitted the offence with intent to gain pecuniary benefit.Accused Kiran was the leader of the organized crime syndicate.The learned A.P.P has placed on record a detailed chart abouttiming and places where the car belonging to accused Kiran waschasing the complainant. It has been prayed that the offence isserious and that the police personnel is the prime criminal in thiscase. The common man should be protected from such criminals.She also referred to the findings of the Sessions Court whilerejecting the application. They prayed to dismiss the applications.10.The prime evidence of the prosecution is the CCTV footage.The Court has gone through the entire chargesheet and the papersand documents referred to by the learned counsels for therespective parties. The first information report is silent about themake of the vehicle chasing it. There appears to be somediscrepancy in the timing of the chasing of the car. One of theCCTV footages was taken after the incident at Ahmednagar. It was 8 902-BA-549-24.odt30 km away from the spot of the incident. Against applicant Kiran,this is the first crime of this type. However, co-accused Aakash hadantecedents to his discredit. In many cases, he has beenacquitted. Some of the cases are of bodily offences, such as thePolice Act and the Prohibition Act. Considering the materialcollected by the prosecution on record in-toto, it would be difficultto accept at this juncture, whether MCOC Act applied to the caseor not.11.At the most, it may be a case of road robbery. Out of a hugeamount of Rs.9,00,000/-, a small amount has been recovered.Whether the golden chain belongs to the complainant or accusedKiran Kolape, is a matter of investigation by producing theevidence before the trial Court. Bare involvement of the habitualoffender appears not sufficient at this juncture to believe that it isa organized crime. At this juncture, whether the accused aremembers of the organized crime syndicate is not clear. Co-accusedAkash is involved in the road robbery. In the crimes registeredagainst them, none of the co-accused were co-accused with him inthose crimes. The investigation has been completed. Haring wasgranted to the learned A.P.P. The Court has expressed doubt aboutan offence under the MCOC Act. The Court also discussed thehistory of the co-accused and satisfied that there are noreasonable grounds to believe that the accused is likely to commitany offence while on bail. However, considering the gravity of the 9 902-BA-549-24.odtoffence, blanket bail could not be granted to them. Certainconditions should be imposed 12.For the above reasons, the following order is passed;ORDERi)The applications are allowed.ii)Applicants Mahesh Vitthal Wagh, Akash Pandurang Shindeand Kiran Baban Kolpe be released on bail, on furnishing PBand SB of Rs. 1,00,000/- with one or two solvent sureties ofthe amount of Rs.50,000/- each of the like amount, in theabove crime for the aforesaid offences, on the conditionsthat,(a)They shall keep the concerned Police Station informed onevery first and last Saturday of a month either physicallyor by phone, if physically not present in the town,between 10.00 to 12.00 p.m. till the trial is concluded.(b)They shall attend the trial on each date and cooperatewith the Court and the prosecution to complete the trialas soon as possible.(c)They shall not involve in an identical crime in future.(d)They shall not tamper with the prosecution witnesses.iii) Criminal Applications stand disposed of. ( S. G. MEHARE ) JUDGErrd