Udaysingh @ Udaynath Maharaj Prataprao Chavan Vs the State of Maharashtra

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[1]

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 APPELLATE JURISDICTION

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 CRIMINAL APPLICATION NO. 852 OF 2007
 WITH

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 CRIMINAL APPLICATION NO. 1007 OF 2007

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 Shri Udaysingh @ Udaynath

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 Maharaj Prataprao Chavan ..Applicant
 V/s

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 The State of Maharashtra ..Respondent.

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 Mr. Shirish Gupte, Sr. Counsel with Mr. K.V. Reddy
 Advocate for the applicant.

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 Mr. V.B. Konde Deshmukh, APP for the State.

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 Mr. V.T. Tulpule, Sr.Counsel for the intervenor.

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CORAM : J.H. BHATIA, J.

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DATE : 5TH APRIL, 2007.

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 P.C.

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 . Both these applications are filed for

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 anticipatory bail by the same applicant. As the facts
 and circumstances, are common to both the cases, both
 these applications may be disposed of by common order.

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 2. Heard Mr. Gupte, Senior Counsel for the
 applicant, Mr. Konde Deshmukh, APP for the State and

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 Mr. Tulpule, Senior Counsel for the intervenor, who is
 complainant. Perused the affidavits-in-reply filed on
 behalf of the prosecution, as well as the orders passed
 by the Sessions Court, while rejecting the application

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[2]

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 for anticipatory bail.

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 3. The prosecution case, in brief, is that on
 25/2/2007, Assistant Police Sub-Inspector, Kumar Sawant,
 who was posted with Juhu Police Station, got information
 from the police informer that on the same day at about 8
 P.M. four persons with the fire arms and other deadly
 weapons were likely to come to Juhu Bus Depot for the
 purpose of committing murder of one businessman near Sun
 and Sand Hotel at Juhu. The informer also gave the
 detailed description of these four persons. This
 information was passed on by ASI Kumar Sawant to the
 Assistant Police Inspector Sahil, who in turn conveyed
 the information to the Additional Commissioner of
 Police. After getting the necessary directions, API
 Sahil along with other staff members and ASI Kumar
 Sawant laid a trap near Juhu Bus Depot. The informer
 was also present with ASI Sawant. At about 8 P.M., four
 persons came near Chinese Stall, near Juhu Bus Depot.
 They were making some gestures to each other. At that
 time, the informer confirmed that they were the same
 persons, who were expected to commit murder of
 businessman. Immediately, the police party encircled
 and caught hold of those 4 persons. ASI Sawant

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[3]

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 disclosed the identity of himself and other police
 officers. At that time, one of the said four persons
 took out a revolver and fired towards API Sahil and
 taking benefit of this, all the four persons began to
 run away. The person, who had fired ran away towards
 Juhu but remaining persons could not succeeded in
 running away. The person, who had fired was also caught
 by PSI Koli and one police constable.

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 4. After that in presence of two panch witnesses
 personal search of each of the four persons were taken.
 The person, who had fired, disclosed his name as
 Mohammmed Nisar Mohammed Jafar Shaikh and he is accused
 No.1. From his possession one country made revolver
 with two live and one empty cartridges, amount of Rs.
 50,000/-, a Chit having some vehicle numbers and Mobile
 phone etc. were found and seized. The other three
 accused were Aslam Sidhiki Khan, Kasim Peer Mohammed
 Kureshi and Vijay Shankar Wadekar. From Aslam Siddhiki
 amount of Rs. 50,000/- in one pocket and amount of Rs.
 2010/- in another pocket with stainless steel chopper
 admeasuring 33 cms. were recovered. From accused No.3
 Kasim Peer one mobile hand set and amount of Rs.
 3,250/- and stainless steel knife were recovered. From

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[4]

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 Accused NO.4 Vijay Shankar Wadekar amount of Rs.
 1,50,000/-, mobile hand set and one colour photograph of
 some unknown person with vehicle number as the backside
 were recovered. Statements of six witnesses have been
 recorded.

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 5. During the interrogation of the accused persons,
 it was revealed that the present applicant had engaged
 the contract killers by promising the payment of Rs.50
 lakh to them to Kill one Rashmikant Shah, a builder, who
 was developing Abhyudaya Nagar, Kala Chowky under Slum
 Rehabilitation Scheme. One Rajendra Chuturvedi, the
 owner of Shripat Builder and the present applicant are
 close to each other. Rajendra Chuturvedi wanted to take
 over the work of development of Abhyudaya Nagar Colony
 and for this purpose he took help of the present
 applicant, who had some influence in that area. From
 time to time, said Rajendra Chuturvedi and the present
 applicant gave threats to Rashmikant Shah to withdraw
 from the work but when the threats did not work, they
 finally decided to finish him. The present applicant,
 being acquainted with accused No.4, entered into
 contract with accused Nos 1 to 3 though accused No.4 and
 promised to pay them Rs. 50 lakh, after Rashmikant Shah

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[5]

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 was killed.

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 6. Admittedly, due to the interception by the

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 police, in view of the information received through
 informer, the contract could not be executed and
 Rashmikant Shah is alive. In fact no attempt to commit
 his murder could be made because of arrest of the four
 persons by timely action of the police.

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 7. Immediately after the above incident a report
 was lodged by ASI Kumar Sawant and Crime No. 42/2007
 was registered for the offence punishable under Section
 307, 353 r/w section 34 and under the provisions of Arms
 Act. After interrogation of the accused persons and
 revelation of the fact that the present applicant had
 given a contract to those four persons to kill
 Rashmikant Shah, on the basis of FIR lodged by PSI Koli,
 Crime No. 49/2007 came to be registered under Section
 120B r/w section 302, 115 of Indian Penal Code and under
 the provisions of Arms Act and the Bombay Police Act.
 Thus about the same incident two separate crimes came to
 be registered. In view of this, the applicant has filed
 two separate applications for anticipatory bail. Before
 going to the merits of the present applications, it is

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 necessary to set the record straight, as far as legal
 position is concerned. Admittedly, in the present case,
 Rashmikant Shah was not killed, no other person was
 killed. Therefore, section 302 IPC could not have been
 applied. Accused Nos 1 to 4 allegedly came near Juhu
 Bus Depot with a plan to kill Rashmikant Shah, as per
 the contract made by the present applicant and before
 they could execute that contract, they were intercepted
 and had on encounter with the police in which all the
 four accused persons were arrested. One of them fired
 at API Sahil but fortunately API Sahil escaped unhurt.
 However, the revelation of the contract to kill
 Rashmikant Shah came to the light during the
 interrogation of the accused persons. It was clear that
 all those acts were parts of same transaction and
 conspiracy. Therefore, there was no need to register
 the separate crime on fresh F.I.R. by PSI Koli. After
 some discussion at Bar Mr. Konde Deshmukh, learned APP
 makes a statement that crime NO. 49/2007 shall be
 merged in Crime No. 42/2007, section 302 will be
 deleted and Crime No. 42/2007 shall be for the offence
 punishable under Sections 120B, 115, 307, 353 r/w
 section 34 of Indian Penal Code and under the provisions
 of Arms Act and Bombay Police Act. In view of this

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 submission, we may proceed with the presumption that
 Crime No. 49/2007 would be no more in existence and it
 will become part of Crime No.42/2007 only. In view of
 this, it will also not be necessary for the applicant to
 seek anticipatory bail or bail in future in two
 different crimes. He may move an application for
 anticipatory bail or bail in future in Crime No.
 42/2007 only.

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 8. Mr. Gupte, learned Senior Counsel vehemently
 contended that Abhyuday Nagar Colony was to be developed
 for 3500 peoples and the work of development of that
 colony was given to Rashmikant Shah about five years
 before by the Slum Rehabilitation Authority. However,
 in spite of having taken such a long time, he has not
 made any substantial development and large number of
 people expecting the house under the scheme are awaiting
 for development of the Colony and allotment of the
 house. The present applicant is a spiritual person and
 because of that he is highly respected among the people

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 of that area. He contended that taking into
 consideration the difficulties faced by such a large
 number of poor peoples, the present applicant requested
 Rashmikant Shah to speed up the work and if he could

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 not, he should withdraw from the work, so that the work

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 of the development could be completed at the earliest.
 This was not liked by Rashmikant Shah. He has falsely
 implicated the present applicant in this alleged
 offence, which was never committed. The learned Senior
 Counsel vehemently contended that even though the four
 persons were caught, only after the identity of the
 police was disclosed to them, one of them abruptedly
 whipped out a fire arm and fired towards the police
 officer. This was his individual act for which others
 cannot be implicated with the help of section 34 IPC and
 particularly, the present applicant, who was not at all
 present at the spot, could not be held guilty with help
 of section 34 of IPC. On the other hand, on behalf of
 the prosecution, it is urged that four persons had come
 to the spot and were to commit the murder of Rashmikant
 Shah, as per the contract given to them by the present
 applicant and in the course of execution of that work
 when they were intercepted and caught one of the accused
 fired at the police officer and therefore, the present
 applicant will be held responsible for all the acts,
 done by those persons. This question may be properly
 addressed to and appreciated after investigation is
 completed or when the accused are required to face the

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 trial. It will not be appropriate to make any comments
 about the acceptance or otherwise of the contention of
 both the parties.

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 9. It has to be borne in mind that presently the
 investigation is only at the preliminary stage and
 serious allegations has been made against the present
 applicant to the effect that he had engaged four
 contract killers with a promise of the payment of Rs.
 50,00000/- for murder of Rashmikant Shah, a rival
 builder. The defence of the accused/applicant cannot be
 taken into consideration at this stage. The applicant’s
 statement and statement of one of the accused, which is
 recorded by the police reveals several serious things
 and the statement of Rashmikant Shah, which was recorded
 only after the facts were revealed by the accused
 persons in interrogation, shows that on number of
 occasions prior to this incident, the present applicant
 and one Rajendra Chuturvedi had tried pressurise to
 withdraw Rashmikant Shah from the work of development of
 Abhyudaya Nagar Colony and to create the terror in his
 mind for this purpose, they had also sent some persons
 to his office from time to time. It appears that as
 these attempts had failed. the present applicant took

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 [10]

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 services of accused No.4 who was his old confident and

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 follower. It appears that he had relations with a
 criminal gang. With the help of accused No.4, accused
 Nos. 1 to 3 were engaged as contract killers. Amount
 of Rs. 50,00000/- was to be paid after the work would
 be completed. As noted earlier at the time of incident,
 accused Nos. 1 to 3 were found in possession of fire
 arms and other deadly weapons like chopper, knife.
 Amount of Rs. 1,50,000/- was found in possession of
 accused No.4 and heavy amounts were also found in
 possession of accused Nos. 1 and 2. Possibly that
 amount which was given in advance. Taking into
 consideration the fact that several criminal gangs and
 gangsters have been operating in this city for a long
 time making the life of the ordinary citizen difficult,
 it is not impossible that some contract killers might
 have been entrusted such work. This appears to be
 result of business rivalry between the two builders for
 the rights to develop the colony under Slum Development
 Scheme.

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 10. Taking into consideration the gravity of the
 matter, custodial interrogation of the present applicant
 appears to be absolutely essential. His defence cannot

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 be taken into consideration at this stage. If

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 anticipatory bail is granted, it may create difficulties
 in proper investigation of the case and in finding out
 the truth. Therefore, I find that it is not a fit case
 to grant anticipatory bail.

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 11. For the reasons stated above, application Nos.
 852/2007 and 1007/2007 are rejected.

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(J.H. BHATIA, J.)

Udaysingh @ Udaynath Maharaj Prataprao Chavan v. the State of Maharashtra

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Udaysingh @ Udaynath Maharaj Prataprao Chavan v. the State of Maharashtra

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