Allowed

Dinesh Laxman Narkar v. the State of Maharashtra

Bombay HC12 Jul 2013BA/935/2013

Case brief

AI extract

What is this about?

This court granted bail to the applicant under the Maharashtra Control of Organized Crime Act who had been in custody for over five years. The judgment held that continued detention violated Article 21 of the Constitution and noted the applicant performed acts on behalf of a co-accused released on bail.

What did the court decide?

The applicant is released on bail in Rs. 30,000 with one or two sureties of Rs. 15,000 each, to attend the police office twice weekly.

Dinesh Laxman Narkar Vs the State of Maharashtra — Bail and Remand | Bombay HC (2013)

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BA-935.13

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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APPELLATE SIDE

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CRIMINAL BAIL APPLICATION NO. 935 OF 2013

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DINESH LAXMAN NARKAR .. APPLICANT

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VERSUS

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THE STATE OF MAHARASHTRA .. RESPONDENT

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Mr. M. J. Bandgar i/b Rahul Arote & D. D. Ghadge, Advocate for the applicant

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Mrs. S. D. Shinde, APP for the State Mr. Yogesh Chavan – APP at present attach to ATS – present.

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CORAM:-ABHAY M. THIPSAY, J. DATED : 12/07/2013

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ORAL ORDER :

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Heard Mr. M. J. Bandgar, the learned counsel for the applicant and Mrs. S. D. Shinde, the learned APP for the State. With the assistance of the learned APP, I have gone through the annexures to the bail application and also through the relevant part of the charge-sheet.

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The applicant is one of the accused in MCOC Special

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Case No. 5/2008, pending before the Special Court constituted under the Maharashtra Control of Organized Crime Act (“MCOC Act”), at Mumbai. Apart from the applicant, there

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are seven other accused, all of whom have already been released on bail. Thus, the applicant is the only accused in the said case, who continues to be in custody. He is in custody since 25/3/2008.

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The case against the applicant and the other accused is in respect of offences punishable u/ss 452,386,387,427, 506 PartII r/w Section 34 of the IPC and Section 120-B of the IPC, apart from the offences punishable under the MCOC Act and the offence punishable under the Arms Act.

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I have carefully gone through the first information report lodged by Shri Nandkumar Naik, who is a professional builder/developer.

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The version in the FIR is that around October, 2005,

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when the first informant was busy with a project under the

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S.R.A. Scheme, he received certain telephone calls from unknown persons, asking him to go to ' Dagadi Chawl '. Since the first informant did not go to the ' Dagdi Chawl' , he received a threatening call that, if he would not go to the Dagadi chawl, he would be killed. The first informant was frightened and, therefore, did not report the matter to the police. He went to Dagadi chawl where he met a person by name Sudhir Ghorpade (a co-accused), who told the first informant that, he was the person who was making threatening calls in the name of Raju. After being taken inside the Dagadi chawl, the first informant was made to meet a person whose name was disclosed as Vijay Aher (another co-accused) and he was introduced as the brother of Arun Gawali (another co-accused). Vijay Aher told the first informant that the other builders in Dadar area had given 50 – 50 lacs each to them and that the first informant also should give Rs.25 lacs to them. The first informant ultimately agreed to give Rs.10 lacs due to fear

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caused by threats. Thereafter Sudhir Ghorpade came to his office and took away Rs.3 lacs. He thereafter took another Rs.5 lacs. All this happened in the year 2005-06.

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Thereafter, around June/July 2007, the first informant again started receiving calls from Dagadi chawl. In July, 2007, the applicant allegedly went to the office of the first informant and gave a message to the effect that the first informant should be sent to Dagadi chawl. About 5 to 6 days thereafter the applicant again came to the office of the first informant when the first informant was not there and at that time gave some threats to the office staff and caused some damage to the office. About 5 to 6 days thereafter the applicant again went to the office of the first informant and asked the first informant to talk

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to Vijaybhau Aher, and connected him to Vijaybhau Aher by making a call from his (applicant's) mobile telephone. Vijay Aher asked the first informant to meet him in Dagadi chawl. Though the first informant, due to fear, agreed to meet him in

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Dagadi chawl, but then, ultimately, decided not to go there again. On 24/3/2008, again a telephone call was received by the first informant in his office when he was told that on the

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next day at 6 O'clock in the evening Vijay Aher was to send the applicant for collecting an amount of Rs.3 lacs. When the first informant expressed his inability to give such amount, he was threatened that in that event he would be killed. It is thereafter that the first informant reported the matter to the police.

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It appears to be the case of the prosecution that, when the

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applicant came to collect the amount, he was apprehended.

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The learned counsel for the applicant submitted that the co-accused Vijay Aher has been released on bail by this court. He also submitted that the order granting bail to him was challenged by the State, by filing a Special Leave Petition before the Supreme Court of India, but the Special Leave Petition was dismissed. He submitted that the trial court has granted bail to the co-accused Arun Gawali also. He also

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submitted that Sudhir Ghorpade, another co-accused, who confessed about having committed the crime, was tendered pardon and that, in spite of being an approver, he was released on bail, notwithstanding the provisions of clause (b) of subsection (4) of Section 306 of the Code. He submitted that the applicant has been falsely implicated but that in any case, considering that all other accused including those to whom a greater role has been attributed, have been released on bail, the applicant may also be released on bail.

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The learned APP submitted that the nature of evidence against the other accused was not strong and that, that has resulted in releasing them on bail. According to her, the evidence against the present applicant is strong and that the applicant has played 'overt acts' as mentioned in the first information report. It is also submitted that the applicant has committed some other offence while in prison in respect of which a case has been registered. The learned APP also

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submitted that the trial has commenced and three witnesses have already been examined.

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I have carefully considered the matter.

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Though trial has commenced, it is not disputed before

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me that, on account of certain proceedings taken out by the other accused, records and proceedings are not before the trial court and that the trial is, in any case, not expected to be over within a short time.

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12. It is a matter of record that the applicant is in custody for

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a period of more than five years.

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It is difficult to accept that the applicant's role in the alleged offences is graver, or that the nature of evidence against him is stronger. The FIR itself makes it clear that the applicant came in picture only in the month of June/July, 2007. The amount of Rs.8 lacs had already been parted by the first informant in the year 2006 itself for which he did not lodge any complaint at all with any authority. In collecting that amount,

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the prime role has been played by co-accused Vijay Aher, who, as aforesaid, has been released on bail. Prime role has also been played by one Sudhir Ghorpade, another accused, who, as aforesaid, has been tendered pardon, but in spite of being an approver, has been released on bail, despite the provisions of clause (b) of sub-section (4) of Section 306 of the Code.

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On a careful consideration of the matter, it becomes clear that the entire amount of ransom had already been parted, much before the applicant came on the scene. Even otherwise, it is the prosecution case itself that acts attributed to the applicant were being performed by him on behalf of Vijaybhau Aher, and on behalf of an organized crime syndicate, whose other members accused in this case have been released on bail.

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I have gone through the confession of the applicant recorded under the provision of Section 18 of the MCOC Act. Even in this confession, the applicant has mentioned that he was doing the acts in question, at the instance of Vijaybhau

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Aher.

It would be paradoxical if the said Vijaybhau Aher is

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allowed to remain on bail; but the applicant, who (on the prosecution's own showing) was, only working at his instance is kept under detention, pending trial. It is not that there is no material against Vijaybhau Aher. On the contrary, there is more specific and direct material against Vijaybhau Aher. The applicant, therefore, should be released on bail on this ground itself.

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Apart from this, the procedure which permits pre-trial detention for a period of more than five years, without any progress in the trial, cannot be called as just, fair and reasonable. It offends the provisions of Article 21 of the constitution.

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The applicant, therefore, is entitled to be released on bail.

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The application is allowed.

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The applicant is ordered to be released on bail in the sum

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of Rs.30000/-with one surety in the like amount or two sureties

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in the sum of Rs.15,000/- each, on the condition to attend to the office of the DCB CID Unit-III, Mumbai, twice a week:- i.e., on every Monday and every Thursday between 5 p.m. to 6 p.m., till the disposal of the case against him.

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The trial court shall expedite the trial and endeavour to

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complete it as early as possible.

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(ABHAY M. THIPSAY, J.)

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md.saleem

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Dinesh Laxman Narkar v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Dinesh Laxman Narkar v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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