Appeal under Section 12 of the MCOCA Act against rejection of discharge in an organised-crime case arising from a land-possession assault. The court found charge-sheet material, including witness statements and a co-accused's confession, showing the appellant as gang leader involved in conspiracy, and upheld refusal of discharge.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1/12 APPEAL No 257-24.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.257 OF 2024
Mandar Ajit Borkar .. Appellant
Versus
The State of Maharashtra .. Respondent …
Mr.Rishi Bhuta a/w Ujjwal Gandhi, Ashish Dubey, K.R. Shah, Saakshi Jha, Prateek Dutta, Risha Rathod, Omer Farooq Khwaja, Vaishnavi Javheri, Bhavi Kapoor i/b Ankita Bamboli for the Appellant.
Mr.D.J. Haldankar, APP for the State.
CORAM: BHARATI DANGRE & MANJUSHA DESHPANDE, JJ. DATED : 25th NOVEMBER, 2024
P.C:-(Per BHARATI DANGRE J)
We have heard Mr. Rishi Bhuta for the appellant a/w Mr. Ujjwal Gandhi, Ashish Dubey, KR Shah, and Ms. Sakshi Jha, whereas, Mr. Haldankar, the learned APP, has represented the State of Maharashtra.
Ashish
2/12 APPEAL No 257-24.doc
offences punishable under Sections 307, 120-B, 324, 326, 504, 506 (2), 143, 144, 147, 148 149, 188, 269 of IPC, 1860 r/w section 4 (25) of the Arms Act, 1959 r/w 37(1), 135 of Maharashtra Police Act, 1951 r/w section 51(B) of the National Disaster Management Act, 2005 r/w section 3(1)(ii), 3(2), 3(4) of Maharashtra Control of Organized Crimes Act, 1999 (MCOC). Initially the first information report was registered with MHB Police Station, which was subsequently transferred to DCB CID Unit XI, and the FIR came to be renumbered.
The Joint Commissioner of Police (Crime) granted approval under section 23(1)(a) of MCOC Act, 1999 and the sanction under section 23(2), was granted on 13/10/2021 for prosecution of 17 accused, including the present appellant by the Commissioner of Police, Brihanmumbai.
In the year 1990, name of Smt. Kashibai Patil, sister of Deubai along with her legal heirs was mutated and their names were reflected in the 7/12 extract.
On a challenge raised by Taukir Khan, the Competent Authority set aside the mutation entries in favour of Kashibai Patil, which constrainted her to institute a suit in the year 2006, which was
Ashish
APPEAL No 257-24.doc
dismissed in the year 2016.
On 8/07/2021, when the complainant went to visit his plot, Mukesh Bhatia and Arun Upadhyay were physically present and informed the complainant that they had purchased the property from Kashibai. They also made an attempt to display their board on the site, as owners and therefore, a dispute arose between the parties.
It is the case of the complainant that on 18/07/2019, the complainant along with his father, two advocates and other associates visited the said plot, when about 15 to 20 persons came there and tried to remove the board of the complainant on the property and asked them to leave the spot saying that the property belongs to Mukesh Bhatia and Arun Upadhyay.
When the complainant and his associates objected to that, the accused threatened to kill them, if they failed to leave. When the complainant refused to leave, some of the accused rushed towards an auto-rickshaw, waiting at the scene and pulled out deadly weapons like swords, bamboos and iron rods from it and assaulted the complainant and others.
The complainant and his associates were taken to the hospital for treatment and thereafter, offence came to be registered against 22 accused persons.
Ashish
4/12 APPEAL No 257-24.doc
The appellant was arrested on 18/09/2021.
Upon the facts of the case, it is the specific contention of Mr. Bhuta, that prima facie , it can be inferred that Taukir Khan was not in possession of the property and the allegation that accused nos.2 and 3 engaged the services of the present appellant to dispossess him and the complainant from the suit property appear to be doubtful.
Ashish
5/12 APPEAL No 257-24.doc
According to Mr. Bhuta, the sanctioning authority had not applied its mind in granting approval under Section 23(1)(a) of the MCOC Act and has adopted a mechanical approach.
Mr. Bhuta, has relied upon a series of judgment to press into service his point that while deciding the discharge application the merits of the case cannot be taken into consideration and in the present case, the limited scope available is to challenge the sanction or approval accorded in absence of sufficiency of the material.
Ashish
6/12 APPEAL No 257-24.doc
Since the motive of the crime was pecuniary gain and to terrorize the business community so as to extort money from them and to establish his supremacy through his nefarious and illegal activities, the ingredients of offence under MCOCA was held to be made out.
Ashish
7/12 APPEAL No 257-24.doc
We are informed that on 27/07/2023, the appellant was enlarged on bail and presently he is on bail.
Mr.Bhuta, has relied upon the order passed on 27/07/2023, while hearing the bail applications of the accused persons, which included the applicant (Bail Application No.2423 of 2022) and he has taken us through the observations therein and in particular as regards the appellant to the following effect:-
“19. The facts and circumstances of the case prima facie reveal that the Applicants-Upadhyay and Bhatia as well as the First Informant and Taukir Ahmed are claiming right to the property under Survey No.301/6. The altercation and scuffle between the parties over the said dispute has been given a colour of an organized crime. The complicity of the Applicant-Mandar Borkar is prima facie doubtful and the Applicants – Upadhyay and Bhatia have no nexus with the crime syndicate. Hence, prima facie the bar under Section 21(4) of the MCOC Act is not attracted. It is also pertinent to note that the Applicants herein are in custody for over two years. The charge is not yet framed and considering the large pendency, there is no possibility of the trial being concluded within a reasonable period and prolonged detention of the Applicants would be in violation of their rights under Article 21 of the Constitution. Hence, the Applicants are entitled to be enlarged on bail.”
We must however express that the parameters for releasing an accused on bail is distinct from the one which are required to be taken into consideration while the application for discharge is to be considered.
Ashish
8/12 APPEAL No 257-24.doc
At the time of search of the nearby areas of the spot of incident, it was found one Autorickshaw bearing No. MH 47 AD 8869 was found which, was used in commission of crime from which bamboo sticks were recovered and this Autorickshaw was registered in the name of accused no.14. Statements of complainant Divesh Desai, father of the complainant Rajendra Dayal Desai, Advocate of the Complainant Ankit Tandon, Satyadev Joshi, Taukir Khan are recorded by the Magistrate and compiled in the charge-sheet, along with statement of 7 persons recorded under Section 161.
The panchanama of CCTV footage from the spot is also included in the charge-sheet, where the accused persons are seen assaulting the complainant and his associates with swords and bamboos and 12 persons have been specifically identified with their respective role.
Statement of Mahesh Nirati, driver of the complainant, came to be recorded on 27/07/2021 where he stated that, at the time
Ashish
9/12 APPEAL No 257-24.doc
of incident when Manoj Shinde (accused no.10) and Usha Nikam (accused no.1) were threatening the complainant to leave the spot, one Innova car came at the spot in which gang leader i.e. the present Applicant was present. Thereafter the said accused Manoj Shinde and Usha Nikam said that the plot belongs to Mukesh Bhatia and Arun Upadhyay and threatened the complainant by saying that ‘Bhai is sitting in the car’, referring to gang leader, Mandar Borkar (present Applicant).
Statements of other witnesses namely, Satyadev Joshi, Taukir Ahmed Khan and Mohd Iqbal Attarwala also categorically mentioned that the present Applicant was present at the spot and was sitting in his car handing out directions.
The CCTV footage of 12/07/2021 of the office of accused no, Mukesh Bhatia, wherein Mukesh Bhatia is seen with accused no.16, Vivek Manjrekar and two other witnesses exchanging cash, reveals the fact of hatching conspiracy. The said CCTV footage came to be seized under Panchnama dated 25/07/2021.
The accused in his confession has also stated that a deal of Rs.20 lakhs was finalised between the accused’s syndicate, for dispossessing the complainant from his property. He has further
Ashish
10/12 APPEAL No 257-24.doc
admitted that he has received an amount of Rs. 5 lakhs in his bank account on 14/07/2021 from accused Mukesh Bhatia.
Further co-accused Vivek Manjrekar, in his confessional statement has also mentioned about cash of 15 lakhs, which had received from accused Mukesh Bhatia, which was handed over by him to the applicant during the meeting held on 16/07/2021.
We have perused the statement of Divesh Rajendra Desai and Rajendra Dayal Desai recorded under Section 164 before the Magistrate along with the statement of Satyadev Joshi recorded under Section 164 and the statement of Abbas Ahmed T.A. Khan recorded before the Magistrate. The statement of Mohd. Iqbal Abdulla Atarwal has clearly referred to the presence of the appellant in the meeting on 16/07/2021, and he also referred to the transaction of Rs.5 lakhs in form of transfer from Mukesh Bhatia to Vivek.
Statement of Abbas Taukir Khan in form of supplementary statement and that of one Haji Taukir Khan, the background of the incident has clearly surfaced on record. Sachin Joshi has also given a statement along with the supplementary statement, which throw light on the conspiracy and he referred to a phone call received by him from an unknown person inquiring whether a phone call from Vivek was received and he was instructed that if he received such a phone call, Bhai should be told to make a
Ashish
11/12 APPEAL No 257-24.doc
phone call urgently, the reference of Bhai is to the appellant.
The present appellant was integral part of the conspiracy and he is the gang leader and master mind behind the commission of the crime, as Mukesh Bhatia and Arun Upadhyay hired his gang to grab the complainant’s land in order to establish their supremacy.
The statement of the eye witnesses to the incident of assault are already compiled in the charge-sheet, and its credibility will have to be tested during trial when the witnesses enter the witness box.
The present crime is committed by the appellant, being a gang leader with the help of other accused persons by use of dangerous weapons, with a motive of pecuniary gains by creating reign of fear and danger to the life of general public and we are not inclined to permit discharge of the appellant in the wake of aforesaid material in the charge-sheet.
It is a well settled position that the Court must without making a roving inquiry into the pros and cons, consider the broad
Ashish
12/12 APPEAL No 257-24.doc
probabilities, the total effect of the material before it along with any basic infirmities in the case but the probative value of the material on record cannot be gone into and the material brought on record by prosecution, has to be accepted as true. Existence of some material to entertain strong suspicion is sufficient to drawing up of a charge and refuse a discharge.
At the stage of Section 227, a Judge has merely to sift evidence in order to find out whether or not there is sufficient ground for proceeding against the accused and sufficiency of grounds would include the statements recorded by the police or documents produced, or documents which ex facie would lead to existence of suspicious circumstances against the accused so as to frame charge against him.
In any case, in the wake of the material, no case for discharge is made out as the material in the charge-sheet point out to the involvement of the appellant and it is a different thing that if the prosecution is not able to establish the charge, it will result in his acquittal, but at the stage of discharge, it is not possible to dissect the material in the charge-sheet as regards its authenticity and veracity which is a matter of trail. We find no legal lacunae in the impugned order and by upholding the same, it is liable to be rejected.
(MANJUSHA DESHPANDE,J)
(BHARATI DANGRE, J.)
Ashish
2 issues framed by the court
Whether the appellant was entitled to discharge from MCOCA and IPC charges in light of the material in the charge-sheet.
Whether sanction/approval under Sections 23(1)(a)/(2) of the MCOCA Act was validly granted.
Colour shows how this judgement treated each authority
M.E. Shivalingamurthy v. CBI, BengaluruRelied on¶15
(2020) 2 SCC 768 · Who else cites this
2 provisions across 1 enactments
Mandar Ajit Borkar
The State of Maharashtra
Bharati Dangre
Manjusha Deshpande
As recorded by the court registry
11 orders share this CNR
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