Dismissed

Sachin Prakash Javalkar v. the State of Maharashtra

Bombay HC15 Dec 2020BA/316/2019

Case brief

AI extract

What is this about?

The High Court of Bombay Criminal Appeal Jurisdiction rejected a bail application under the MCOC Act. The court found the applicant guilty based on charges of harbouring and financial assistance after a shooting incident, noting his status as an habitual offender and involvement in the conspiracy. The applicant contended he was falsely implicated, but the court distinguished previous precedents.

What did the court decide?

The bail application was rejected with observations that they are prima facie and limited to this case.

Sachin Prakash Javalkar Vs the State of Maharashtra — Corruption | Bombay HC (2020)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL BAIL APPLICATION NO.316 OF 2019

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Mandira Salgaonkar

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Digitally signed byMandira Salgaonkar Date: 2020.12.1620:01:01 +0530

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Sachin Prakash Javalkar ..Applicant
Versus
The State of Maharashtra .. Respondent

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Ms.Sana Raees Khan i/b Subhash Hulyalkar for the Applicant.
Mrs.M.M.Deshmukh, APP for the State.

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CORAM: BHARATI DANGRE, J.
 RESERVED ON: 25TH NOVEMBER, 2020
 PRONOUNCED ON : 15TH DECEMBER, 2020

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: ORDER:

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1.The applicant is charge-sheeted under the Maharashtra
Control of Organised Crime Act, 1999 (for short,“MCOC Act”)
and came to be arrested on 29th April, 2018. His application
filed before the Special Court constituted for dealing with
offence under MCOC Act came to be rejected on 11th December,
2018. This has constrained him to move this Court seeking his
release on bail.

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2.Heard Ms.Sana Raees Khan for the applicant. She would
submit that the applicant has not committed any offence as
alleged and has been falsely implicated. She contend that he is
not part of the organised criminal gang and in fact the role

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M.M.Salgaonkar

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assigned to him in the charge-sheet is very limited and it is not
the case of the prosecution that he was present on the spot at
the time when the alleged crime took place nor there are any
allegations of conspiracy levelled against him. He can be at the
most implicated by taking recourse of Section 212 of IPC i.e.
harbouring the offender. He had no knowledge that the
persons for whom he had arranged a stay for, are the accused
persons and they have committed crime. The learned counsel
would also submit that the applicant is permanent resident of
the address given and there is no chance of his absconding or
jumping over the bail.

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The learned APP, on the other hand, strongly opposed the
application and submit that the applicant is responsible for
harbouring the accused persons and has financially assisted the
organised crime syndicate and, therefore, offence under Section
3(3) of MCOC Act has been made out and considering the
nature of his involvement and the gravity of offence, since the
Act of 1999 intend to prevent or control the organised crime
and to deal with the criminal activity of organised crime
syndicate or gang, the prosecution has compiled reliable
evidence against the present applicant, which do not deserve
his release on bail.

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3. With the assistance of the learned counsel for the parties, I have perused the material placed on record in the form of charge-sheet.

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M.M.Salgaonkar

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The prosecution case is that the informant one Sanesh
Ashok Kurwat has lodged the complaint alleging that on 15th
September, 2017 at about 15.30 hrs, his brother Santosh
alongwith Vijay and Nadeem Maniyar were having tea in front
of Sadhu Wasvani Garden, Pimpri, Pune and at that time, on
account of previous enmity, Sachin Nadhe, Vicky Sutar, Vijay
Nadhe, Avinash Nadhe and other unknown 4 to 5 persons
arrived at the spot with deadly weapons i.e. sickles and pistols
and created a reign of terror in the locality. They fired at the
brother of the informant and attempted to kill him. This
resulted in registration of C.R.No.531 of 2017 invoking Sections
307, 143, 147, 148, 149, 120-B, 212, 506, 201 of IPC read with
Sections 3(25), 4(25), 5(1)(a)(b), 27 of the Arms Act and
Section 37(1) with Section 135 of the Maharashtra Police Act
alongwith Sections 3, 7 of the Criminal Law Amendment Act.
During the course of investigation, police arrested co-accused-
Vicky Sutar and during the interrogation, he disclosed that the
said offence is committed by him alongwith other co-accused.
He also disclosed the name of the applicant, who was
absconding. Total ten accused persons came to be arrested in
the present crime, including one juvenile accused. During the
course of investigation, the fire arms, sickles and vehicles used
in the crime have been seized at the instance of co-accused and
statements of several witnesses came to be recorded. Charge-
sheet came to be filed against accused Nos.1 to 9 and the
present applicant alongwith one Chetan Walke was shown as

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M.M.Salgaonkar

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BA-316-19.doc

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absconding accused.

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4.The investigation lead to certain facts. It is revealed that
injured Santosh was assaulted by the accused persons in the
year 2010 and to revenge the said incident, Santosh Kurwat
alongwith his accomplice is alleged to have committed murder
of one Rakesh Ghule. Santosh was also charged with attempt
to commit murder of co-accused Babloo Pal. In the year 2017,
injured Santosh was contesting the election of Pimpri
Chinchwad Corporation as an independent candidate and
though the accused persons insisted that he should withdraw
his nomination, he refused to do so. The incident of firing is an
outcome of this act and there is an attempt to kill. The
investigation has revealed that previous enmity and grudge in
the mind of the accused persons resulted into formation of
organised syndicate crime with Vicky Sutar as the gang leader
and the conspiracy was hatched to kill Santosh Kurwat. The
investigation reveal that co-accused Shashikant Ghule handed
over two pistols and eleven rounds to co-accused Chetal Walke
and Rahul Ghule. The pistols were passed to co-accused Vicky
Sutar and Babloo Pal. Co-accused Babloo Pal arranged for
sickles for all the accused persons and sum of Rs.30,000/- was
collected from co-accused Rahul Ghule. On the date of
incident, co-accused Vicky Sutar, Baburao Patil, Pratik Waghire,
Hitesh Lingawat, Chetan Walke, Rahul Ghule and juvenile
Shubham Yadav kept watch on the activity of Santosh. Co-

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M.M.Salgaonkar

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accused Vicky Sutar and Pratik Waghire fired several rounds
from the pistols towards Santosh. Other co-accused, who were
armed with sickles, assisted the accused persons who fired the
arms. Santosh was seriously injured and co-accused Hitesh
Lingawat helped the accused persons to flee away and it is at
this stage, the applicant is assigned a role. Co-accused Hitesh
brought the accused who had fired the arm at the injured on his
Activa Scooter and on one other Scooter used in the crime. It is
alleged in the charge-sheet that this applicant had full
knowledge of conspiracy and the offence committed by the
accused persons and in-spite of this, he had given shelter to the
co-accused and did not inform about the incident to the police.
He is also alleged to have given cash for meeting expenses of
the accused persons.

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5.On compiling the material to the effect that all the
accused persons were members of the organised crime
syndicate and involved in the activity prohibited by law and are
undertaking the said activity either singly or jointly as members
of the organised crime syndicate and on behalf of such
syndicate, by use of violence or threats of violence or
intimidation or coercion or other unlawful means, with object
of gaining pecuniary benefits or obtaining advantage for
themselves, the proposal was forwarded to the Additional
Commissioner of Police, North Region Division, Pune City to
invoke provisions of MCOC Act. The necessary sanction under

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M.M.Salgaonkar

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Section 23(1)(a) of MCOC Act was accorded on 10th January,
2018 and the Assistant Commissioner of Police, Pimpri Division,
Pune was directed to investigate the matter. The provisions of
MCOC Act were, therefore, inserted in the said CR on 10th
January, 2018.

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6.In order to charge the applicant of harbouring the
accused and providing the financial assistance, the material
compiled in the charge-sheet is the statement of Tukaram Kadu,
who is the owner of ‘Samadhan Hotel’ at Khanapur. He state
that on 15th September, 2017, he was informed by Sachin
Javalkar (applicant), resident of Khanapur that his friends will
be visiting his hotel and he would arrange for their stay and
would also pay their bill. He has also informed him that he has
arranged for their night stay in ‘Javalkar Farm House’ and on
16th September, 2017, housed them in his hotel. Accordingly on
16th September, 2017, five people came to the hotel and when
inquiry was made with them, they disclosed their names to be
Vicky Sutar aged 23 years, Baburao @ Babya Somling Patil
aged 20 years, Pratik Suresh Waghere aged 21 years, Hitesh @
Chotya Dinesh Lingawat aged 21 years and Shubham Anand
Yadav aged 17 years. He arranged for their stay. The police
came to his hotel and after making inquiries from the owner,
took the boys into the custody. He came to know from the
police that the said persons had fired at one Santosh Kurwat in
Pimpri and attempted to kill him.

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M.M.Salgaonkar

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7.Another witness is Amol Javalkar, who runs hotel in the
name of ‘Javalkar Farm House’. He deposed that on 15th
September, 2017, one of his relatives Sachin Javalkar had told
him that stay of his friends should be arranged in his hotel and
he will cater to their expenses and clear their bill. In the night,
two persons came to his hotel and they were accompanied by
the present applicant and five persons namely, Vicky, Baburao,
Pratik, Hitesh and Shubham were the persons who visited the
hotel. He arranged for their stay and food. Thereafter Vicky
Sutar accompanied Sachin Javalkar (applicant) out of the hotel,
however, other persons after having their dinner, stayed in the
hotel. Late in the night, Vicky Sutar also came back. The next
morning, at the say of the present applicant, they went to
Samadhan Hotel, Khanapur. He gained knowledge from the
hotel owner of Samadhan Hotel that the persons stayed in his
hotel had been to the Hotel in the morning and after they
attended their morning chores, police had arrived at the hotel
and took the persons in the custody.

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8.Statement of one Sainath Shelar came to be recorded on
26th March, 2018 where he has stated that the applicant had
conspired with other accused persons to commit the offence. He
narrated the incident of May 2017 when the accused persons
had gathered together and he state that Chetan Walke and
Vicky Sutar fired one one round from the two pistols brought by
them. However, since one of the pistols was not functioning

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M.M.Salgaonkar

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properly, they had taken them back. After ten days, when the
accused persons had called him near the railway ground, he
had seen Chetan Walke, Rahul Ghule, Bunty Ghule and Vicky
Sutar with a carry bag in their Activa and when asked, he was
informed that he was carrying two pistols and seven cartridges
for killing Santosh. This witness specifically taken the name of
the applicant as the one who has conspired with the other
accused persons to commit the offence under Section 307 of
IPC.

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9.Confessional statement of co-accused-Chetan Vitthal
Walke came to be recorded by the Deputy Commissioner of
Police after following the necessary procedure. In great details,
he narrated the conspiracy hatched as well as the incident
dated 15th September, 2017. He has stated that after they had
injured Santosh, they had approached to the relative of the
present applicant and he had arranged for their stay. He had
taken an amount of Rs.30,000/- from Sachin Javalkar for
arranging the stay of the accused persons.

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10.Confessional statement of Rahul Vishwakarma as well as
of Vicky Sutar are also on similar lines. The said statements are
recorded under Section 18 of MCOC Act after complying with
the requirements of the said Section, which makes the
confessional statements made to the police officer and recorded
by him admissible. The confessional statements compiled in

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M.M.Salgaonkar

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the charge-sheet clearly reveal that the applicant has played an
active role by providing shelter and money to the accused
persons after they committed the offence of firing at Santosh.
The applicant is well acquainted with all the accused persons.

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11.Pertinent to note that whoever commits an offence of
organised crime and if the offence is such that it has not
resulted in the death of any person, the punishment prescribed
is imprisonment for a term which shall be not less than five
years, but which may extend to imprisonment for life. Section
3(2) prescribes penalty for conspiracy or attempt to commit or
advocating, abetting or knowingly facilitating the commission
of an organised crime. Sub-section (3) prescribes the penalty
for harbouring or concealing or attempting to harbour or
conceal any member of an organised crime syndicate and the
punishment prescribed is imprisonment for a term which shall
not be less than five years, but which may extend to
imprisonment for life. The involvement of the applicant can be
well discerned from the material compiled in the charge-sheet.
More than one charge-sheet for the offence punishable with
imprisonment for ten years or more have been filed against
Vicky Sutar in preceding ten years and the competent courts
have taken cognizance of the said offences. The applicant is an
habitual offender and offences are registered against him in
Haveli Police Station as well as Nigadi Police Station. The
organised crime syndicate under the leadership of Vicky Sutar is

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M.M.Salgaonkar

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involved in series of offences, including offence by use of
violence or threat of violence or intimidation or coercion or by
other unlawful means. The applicant came to be arrested on
29th April, 2018 and a supplementary charge-sheet has been
filed in the said crime.

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In the wake of the material contained in the charge-sheet,
the applicant do not deserve his release on bail.

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12.The learned counsel for the applicant has placed reliance
on judgment of Division Bench of this Court in case of
Sherbahadur Akram Khan Vs. State of Maharashtra1 and would
submit that the facts of the case are similar to the present case
and mere providing shelter to the sons, after they committed
crime, has been held to be not attracting MCOC Act.

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Perusal of the facts of the said case would clearly reveal
that there was no material brought on record to indicate as to
how the accused who may be a part of one family belong to an
organised crime syndicate. It was held that mere fact that the
accused are related with each other and committed offences
either individually or jointly, would not lead to the inference
that the accused formed an organised crime syndicate. The
allegation against accused No.11 is limited to the extent that
she sheltered two of her sons after they had allegedly
committed certain offences. However, she was not having any
link with any of the offences allegedly committed by the
accused in the previous ten years.

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1 2007(1) MhLJ (Cri) 1

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M.M.Salgaonkar

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This is not a case here and material in the charge-sheet
reflect that the applicant is also a member of an organised
crime syndicate and the ratio in the said ruling cannot be made
applicable to the present applicant, who was part of the
conspiracy.

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13.In light of the confessional statements, it can be very well
discerned that the applicant was throughout involved in the act
of attack on the injured and knowing that the co-accused have
committed the offence, he offered shelter to them. Since the
charge-sheet contain material to the effect that he was part of
the conspiracy hatched to commit the crime, the judgment in
case of Javed Ahmed Abdul Majeed Ansari Vs. State of
Maharashtra(Criminal Bail Application No.1147 of 2013
decided on 21st October, 2013) is also not of any assistance to
the applicant.

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14.As far as reliance in case of Ranjitsingh Brahmajeetsing
Sharma Vs. State of Maharashtra and Ors.(Criminal Appeal
No.523 of 2005 decided on 7th April, 2005) is concerned, it has
been held that :

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“55.The wording of Section 21(4), in our opinion, does
not lead to the conclusion that the Court must arrive at a
positive finding that the applicant for bail has not committed
an offence under the Act. If such a construction is placed,
the court intending to grant bail must arrive at a finding that
the applicant has not committed such an offence. In such an
event, it will be impossible for the prosecution to obtain a
judgment of conviction of the applicant. Such cannot be the

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M.M.Salgaonkar

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intention of the Legislature. Section 21(4) of MCOCA,
therefore, must be construed reasonably. It must be so
construed that the Court is able to maintain a delicate
balance between a judgment of acquittal and conviction and
an order granting bail much before commencement of trial.
Similarly, the Court will be required to record a finding as to
the possibility of his committing a crime after grant of bail.
However, such an offence in future must be an offence under
the Act and not any other offence. Since it is difficult to
predict the future conduct of an accused, the court must
necessarily consider this aspect of the matter having regard
to the antecedents of the accused, his propensities and the
nature and manner in which he is alleged to have committed
the offence.

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56.It is, furthermore, trite that for the purpose of
considering an application for grant of bail, although
detailed reasons are not necessary to be assigned, the order
granting bail must demonstrate application of mind at least
in serious cases as to why the applicant has been granted or
denied the privilege of bail.

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57.The duty of the court at this stage is not to weigh
the evidence meticulously but to arrive at a finding on the
basis of broad probabilities. However, while dealing with a
special statute like MCOCA having regard to the provisions
contained in Sub-section (4) of Section 21 of the Act, the
Court may have to probe into the matter deeper so as to
enable it to arrive at a finding that the materials collected
against the accused during the investigation may not justify
a judgment of conviction. The findings recorded by the
Court while granting or refusing bail undoubtedly would be
tentative in nature, which may not have any bearing on the
merit of the case and the trial court would, thus, be free to
decide the case on the basis of evidence adduced at the trial,
without in any manner being prejudiced thereby.”

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This being the position of law, on the basis of the material
contained in the charge-sheet, there are reasonable grounds for
believing that the applicant is guilty of commission of offence

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M.M.Salgaonkar

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and since he is an habitual offender, is likely to indulge in
similar offences after his release on bail. The application is,
therefore, deserves a rejection and is accordingly rejected.

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The observations made above are prima facie in nature,
only limited for decision of the present bail application and
shall not be construed as binding.

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SMT. BHARATI DANGRE, J

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M.M.Salgaonkar

Sachin Prakash Javalkar v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Sachin Prakash Javalkar v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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