Allowed

Sanjay Bhairu Waskar v. the State of Maharastra

Bombay HC10 Nov 2014BA/1496/2013

Case brief

AI extract

What is this about?

In a bail application under the MCOC Act, the High Court held that the restrictive bail provisions do not require the applicant to make out a stronger case than for discharge. Finding that key evidence consisted of post-arrest statements and unsupported allegations, the Court found reasonable grounds to believe the applicant was not guilty and granted bail on stringent conditions.

What did the court decide?

Released on bail on Rs. 1,00,000/- with one surety, on condition not to reside in Kolhapur, not to contact witnesses, and report to court weekly.

Sanjay Bhairu Waskar Vs the State of Maharastra — Bail and Remand | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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rpa

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CRIMINAL BAIL APPLICATION NO.1496 OF 2013

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Sanjay Bhairu Waskar .. Applicant V/s. The State of Maharashtra .. Respondent

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Mr.A.H.H. Ponda & Mr.Shailesh Chavan i/b. CNS Law Associates, Advocate for the Applicant.

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Mr.Y.S. Shinde, A.P.P. for Respondent – State.

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Mr.Indrajeet Joshi, Advocate for the Intervener.

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CORAM : ABHAY M. THIPSAY, J.

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DATED : NOVEMBER 10, 2014.

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ORAL ORDER :

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The applicant is one of the nine accused – i.e. the accused no.9 in the MCOC Special Case No.4 of 2010, pending before the Special Court under the MCOC Act at Pune. The said case arises out of C.R. No.85 of 2010 registered at Rajarampuri Police Station, Kolhapur. The allegation against the applicant and other accused is in respect of offences punishable under Section 302 of IPC and 307 of IPC read with Section 149 of IPC, 147 of IPC, 148 of IPC, 341 of IPC, 323 of IPC, 120B of IPC, 427 of IPC, in addition to the offences punishable under Section 3(1)(i), 3(1)(ii), 3(2) and 3(4) of the

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Maharashtra Control of Organized Crime Act (hereinafter referred to as 'the MCOC Act', for short). The applicant and other accused are alleged to have committed murder of one Avdhut Malave on 4^th June, 2010. It is alleged that the applicant is the leader of the organized crime syndicate , and the offence of committing murder of Avdhut Malave, is an organized crime .

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2 I have heard Mr.A.H.H. Ponda, the learned counsel for the applicant. I have heard Mr. Y.S. Shinde, the learned A.P.P. for the respondent – State of Maharashtra. I have heard Mr.Indrajeet Joshi, the learned counsel for the first informant – intervener. With the assistance of the learned counsel, I have gone through the application, the annextures thereto which include a complete copy of the charge-

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sheet. I have also gone through the report submitted by the investigating officer to the learned public prosecutor which has been made available by the learned A.P.P. for my perusal. I have also gone through the case diary.

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3 Admittedly, the applicant is not the actual assailant. In other words, there is no dispute that the applicant has not taken any part in assaulting the said Avdhut Malave. It is nobody's case that the applicant was present on the spot at the time of the assault on Avdhut

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Malave. It is the case of the investigating agency that the other eight accused in this case are the actual assailants.

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4 The applicant has been involved in the matter on the allegation that 'it was at his instance that the other accused had assaulted Avdhut Malave'. It is the case of the investigating agency that there was some political rivalry between the brother of the applicant and the said Avdhut Malave, and that, that is why, the applicant wanted to murder the said Avdhut Malave and employed the other accused for that purpose, pursuant to a conspiracy hatched between the applicant and the said other accused.

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5 The murder took place on 4 th June, 2010 . It appears that five of the other eight accused were arrested on 7 th June, 2010 . The applicant was arrested on 13th June, 2010 , by which time all the other accused had already been arrested.

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6 The theory that the said 'Avdhut Malave was murdered by the other accused at the instance of the applicant' is sought to be supported on the strength of the statements of three persons that came to be recorded in the course of investigation. I have gone through the said statements.

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7 The statement of one Ganesh Dabhole recorded on 14^th June, 2010 indicates that on 3^rd May, 2010, the applicant had asked some of the other accused as to when they would commit the murder of Avdhut Malvi or whether he should assign the task to some other parties. Similar is the statement of one Nitin Shinde which has also been recorded on 14^th June, 2010. The statement of one Swapnil Muthane recorded on 16^th June, 2010 indicates that in the month of April, the applicant and some of the other accused in this case were sitting in a beer bar, where the applicant is supposed to have angrily asked the other accused as to 'whether they were to murder Avdhut Malave after the election'. The applicant is also said to have assured the other accused not to worry, and that he would handle the matter.

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8 Apart from the statements of these three witnesses, all recorded after the arrest of the applicant, reliance has been placed on the fact that there were telephonic contacts between the applicant and the co-accused Ajit Tivade, Govind Naidu and Nitin Vetal. However, admittedly, these telephonic talks are not soon before or after the murder which, as aforesaid, took place on 4^th June, 2010.

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9 Mr.Ponda, the learned counsel for the applicant contended that the statements of Nitin Shinde, Swapnil Muthane and

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Ganesh Dabhole, cannot be relied upon, as they have been recorded after the arrest of the applicant and with the object of involving the applicant in the alleged offence. He submitted that these persons speak about the incidents that allegedly took place much before the murder, but none of them had come forward to give his/their version/s to the investigating agency after the murder.

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10 As regards the telephonic contacts, Mr.Ponda submitted that the charge-sheet contains material in the nature of statement of one Umesh Pawar. Mr.Ponda submitted that there was political rivalry between Umesh Pawar and Avdhut Malave also. He submitted that Umesh Pawar's father Devappa Pawar had, in the past, contested the elections of the local government against the said Avdhut Malave. He submitted that Maruti, brother of Devappa Pawar was murdered by Avdhut's brother Kishan in the year 1994. What was significant according to Mr.Ponda is that that there had been telephonic contacts between some of the other accused and Umesh Pawarb was revealed

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in the course of investigation. Mr.Ponda further submitted that the fact of such telephonic contacts has been falsely denied by Umesh Pawar when his statement was recorded by the investigating officer, and that, this shows that there was a reason to suspect the said Umesh Pawar also, as being involved in the matter.

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11 Mr.Ponda also submitted that a bare reading of the First Information Report indicates that some fight had taken place between the deceased and the co-accused Atul Tiwade and Nitin Vetal. In fact, the first informant Atul Patil was with the deceased when the assault took place and the first informant had suspected the previous quarrel between Ajit Tiwade and Nitin Vetal on the one hand and Avdhut Malave on the other hand, as the cause behind the assault on Avdhut Malave on 4^th June, 2010. (And not the alleged political rivalry between the applicant and Avdhut Malave)

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12 I have carefully considered the matter.

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13 It appears that the applicant's involvement was revealed to the investigating agency after the arrest of the co-accused. Apparently, on the basis of the information disclosed by the coaccused to the investigating agency, the applicant was suspected. However, no confession of any of the other accused, which can be received in evidence, implicating the applicant, has been recorded in the course of investigation.

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14 The telephonic contacts between the applicant and some

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other accused by themselves are not sufficient to justify, as these

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telephonic contacts are not immediately before or after the assault. There is also substance in the contentions of Mr.Ponda that the significance of the fact that Umesh Pawar was also having telephonic contacts with some of the assailants and that he denied such contacts, has not been properly comprehended by the investigating agency.

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15 In the report submitted by the investigating officer one of the reasons for suspecting the applicant in the alleged offence is stated to be that 'it was earlier planned to murder Avdhut Malave on 24^th April, 2010 at Sangli and that, for that purpose, the co-accused Ajit Tiwade, Nitin, Govind Naidu and Amar Patil had gone there in the Tata Safari Car bearing Registration No.MH-09-818, belonging to the applicant. In this regard Mr.Ponda submitted that there is absolutely no material to indicate that the said Tata Safari belongs to the applicant. It appears from the charge-sheet that the registered owner of the said car is one Uday Dilip Majgaonkar. It is true that some of the statements recorded in the course of investigation indicate that the applicant was using the said car, but the investigating agency has not recorded the statement of the said Uday Majgaonkar. At least, such statement is not found in the charge-sheet. Under the circumstances, this claim of the investigating agency does not lead to advancing the case against the applicant much further.

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16 Undoubtedly, the provisions of the MCOC Act curtail the powers of the Court in the matter of grant of bail and permit grant of bail only on the Court being satisfied that there exist reasonable grounds for believing the applicant for bail not guilty of the offences under the MCOC Act . How the restrictive phrase has to be construed has been considered in the authoritative pronouncement of the Supreme Court of India in the case of Ranjitsingh Brahmajeetsing Sharma v/s. State of Maharashtra & Anr.¹

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17 In the said case, Their Lordships of the Supreme Court of India, held that the restrictions imposed by Section 21(4) of the M.C.O.C. Act on the power of the courts cannot be pushed too far. It is not as if a person can be released on bail only if there would be no grounds for proceeding against him at all on the charge of an offence punishable under the M.C.O.C. Act. The said provisions are required to be interpreted in a reasonable manner. They cannot be interpreted in such a manner so as to make the grant of bail impossible. It is not that the court is required to come to a positive finding that the applicant for bail is not guilty of an organized crime before grant of bail. Again, the phrase “reasonable grounds” should not be confused with the phrase “sufficient grounds” It imports a lesser degree of satisfaction than “sufficient grounds.” It cannot – even remotely – be suggested that the

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1 (2005) 5 SCC

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special provisions regarding grant of bail in the M.C.O.C. Act are to be interpreted in such a manner, so as to mean that it is only when there would be no sufficient grounds for proceeding against an accused, that he shall be released on bail. If such a view is taken, no person who has been granted bail, can ever be proceeded against, in respect of an offence punishable under the M.C.O.C. Act.

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18 Among other things, it is held in the case of Ranjitsingh Sharma (Supra) that if taking the facts as projected by the investigating agency in the charge-sheet at face value, it would appear to the Court that there are no reasonable prospects of a conviction being recorded, then there would be a case for grant of bail.

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19 It is too obvious that the restrictive phrase curtailing the discretion of the Court in the matter of grant of bail cannot be so construed as to require an applicant for bail to make out a stronger case, than that would be required for claiming discharge.

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20 Considering all the relevant aspects of the matter including the fact that immediately after the assault on Avdhut Malave, the motive behind the same was thought to be different by the first informant; that the arrest of the applicant was apparently done

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pursuant to the information allegedly received from the co-accused, but in the course of investigation no confession of any co-accused which could be received in evidence came to be recorded; that there were telephonic contacts between some of the accused and one Umesh Pawar who falsely denied the facts of said telephonic contacts; and that the material against the applicant consists only of the statements of three persons, which, all came to be recorded only after the arrest of the applicant, it can certainly be said that there are reasonable grounds for believing that the applicant is not guilty of an offence punishable under the MCOC Act. As such, there would be no bar to release him on bail.

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21 I have taken into consideration the fact that the applicant is said to be involved in some other cases also. However, in the present case, the applicant is in custody since 13th June, 2010 i.e. for a period of about 4 and ½ years. The trial has not yet commenced. Under these circumstances, I am inclined to release the applicant on bail, but only on imposition of stringent conditions.

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22 The application is allowed.

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

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of Rs.1,00,000/- (Rupees One Lac), with one surety in the like amount on the following conditions:

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(i) The applicant shall not reside in, or enter within, the local area of Kolhapur City, till the conclusion of the the present case against the applicant, except for the purpose of attending the trial Court on the given dates in connection with the cases pending against the applicant and only on the dates, as may be fixed by the Court for hearing of such cases.

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(ii) The applicant shall not contact, meet or approach any of the prosecution witnesses, in any manner, whatsoever.

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(iii) The applicant shall report to the trial Court on every Monday, till the disposal of the case against him. Should the trial Court be closed on a given Monday, the applicant shall attend the Court on the next working day. It is clarified that this shall be in addition to the dates of the hearing of the case, as may be fixed by the Court.

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(ABHAY M. THIPSAY, J.)

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Sanjay Bhairu Waskar v. the State of Maharastra

Case brief

What is this about?

What did the court decide?

Sanjay Bhairu Waskar v. the State of Maharastra

Case brief

What is this about?

What did the court decide?

What the court decided

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