Afnan Shakil Khan vs the State of Maharashtra — Bail and Remand | Bombay HC (2025)

Afnan Shakil Khan vs the State of Maharashtra — Bail and Remand | Bombay HC (2025)

What the court decided

AI extract

Outcome

Regular bail: Applicant to be released on furnishing P.R. Bond of Rs. 25,000/- with one or two sureties in the like amount, subject to conditions — (i) furnish post-release address to the concerned Police Station and the trial Court before actual release; (ii) report to the Investigating Officer as and when called; (iii) attend the trial Court on the first Tuesday of every month between 11.00 a.m. and 01.00 p.m. (or next working day if holiday) to mark presence; (iv) co-operate with trial, attend all dates unless exempted, no unnecessary adjournments; (v) not leave Maharashtra without prior permission of the Trial Court; (vi) not influence witnesses or tamper with evidence; (vii) infraction of conditions and/or two consecutive defaults in marking attendance attracts cancellation of bail under Section 439(2) Cr.P.C.

Issue for consideration

Whether the Applicant, arraigned as Accused No. 3 in Spl. Case No. 791 of 2023 arising out of Crime No. 140 of 2023 (Mankhurd Police Station) for offences punishable under Sections 392 and 120(b) read with 34 IPC and Sections 3(1) (ii), 3(2), 3(4) MCOCA, is entitled to regular bail notwithstanding the prosecution's invocation of MCOCA on alleged gang membership and his alleged six antecedents.

Court's answer

On a prima facie appraisal of the Applicant's precise role, save and except his presence at the time of sale of the stolen mobile phone, there is no other incriminating material attributing any specific role of the Applicant to the present crime.

Ratio / Principle

Since the robbery is admitted by the prosecution to have been committed by Accused Nos. 1 and 2 and the role attributed to the Applicant is only his presence when the stolen mobile phone was sold, the Applicant can be released on bail.

Key takeaways

The observations in the order are limited to the purpose of granting bail only; no observations have been made on the merits of the case, and the trial shall be adjudicated on the evidence led, uninfluenced by the prima facie observations.obiter¶6

Detailed headnote1 paragraphs

Bombay High Court (Milind N. Jadhav, J.), Criminal Bail Application No. 231 of 2024, decided April 24, 2025 — Regular bail granted to Afnan Shakil Khan, arraigned as Accused No. 3 in Crime No. 140 of 2023 (Mankhurd Police Station; Spl. Case No. 791 of 2023) for offences punishable under Sections 392 and 120(b) read with 34 IPC and Sections 3(1) (ii), 3(2), 3(4) MCOCA, after incarceration of 2 years 2 months 2 days. Prosecution alleged that the Activa scooter used in the robbery was stolen by Accused No. 3 and handed to Accused No. 2, and that the Applicant was present when Accused No. 2 sold the stolen mobile phone to a buyer for Rs. 7,000/-, the claimed nexus resting on his brother's statement; six antecedents were cited and gang membership alleged to invoke MCOCA. Held (prima facie): save and except the Applicant's presence at the time of sale of the stolen mobile phone, there is no other incriminating material attributing any specific role to him — the first informant's complaint names only two perpetrators (Accused Nos. 1 and 2, the former the alleged gang leader), the Applicant was not at the incident spot, and no recovery was made from him; accordingly the Applicant can be released on bail. Bail allowed on P.R. Bond of Rs. 25,000/- with one or two sureties, subject to conditions including monthly attendance before the trial Court and a Section 439(2) Cr.P.C. cancellation clause for defaults; observations expressly confined to the grant of bail, without any observation on merits.

27_BA_231_2024.docx

Prasad Rajput

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL BAIL APPLICATION NO. 231 OF 2024

Afnan Shakil Khan .. Applicant Versus State of Maharashtra .. Respondent

Mr. Ganesh Gupta a/w Mr. Sahil Ghorpade, Mr. Madan Khansole, Mr. Surya P. Gupta, Ms. Roshni Naaz, Ms. Priyanka Rathod and Mr. Jagrut Patil i/by GG Legal Associates Advocates for Applicant.

Ms. Shilpa K. Gajare-Dhumal, APP for State.

API – Mahavir Jadav, Mankhurd Police Station, present.

CORAM : MILIND N. JADHAV, J. DATE : APRIL 24, 2025

P. C.:

Heard Mr. Gupta, learned Advocate for Applicant and Ms.

Gajare - Dhumal, learned APP for State.

Applicant - accused has filed the present Application for regular bail in connection with Spl. Case No.791 of 2023 arising out of Crime No.140 of 2023 registered with Mankhurd Police Station for offences punishable under Sections 392, and 120(b) read with 34 of the Indian Penal Code, 1860 (for short, " IPC ")and under Sections 3(1) (ii), 3(2), 3(4) of the Maharashtra Control of Organised Crime Act, 1999. (for short, " MCOCA "). Applicant is arraigned as Accused No. 3.

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He is arrested on 22.02.2023 and is incarcerated for the past 2 years 2 months 2 days.

3. There are in total 3 accused persons involved in the present crime. On 21.02.2023 at around 3:00 a.m. in the morning first informant was accosted by two accused persons on bike. It is prosecution case that the pillion rider snatched first informant’s mobile phone from his hand and left the incident spot. According to prosecution Accused No.1 – Aftab Sayyad is the gang leader and the robbery is committed by Accused No.1 – Aftab and Accused No.2 – Naushad.

3.1. Admittedly according to prosecution case present Applicant is arraigned as Accused No.3 in the present crime however he was not present at the incident spot at the time of robbery neither there is any recovery made from him. The first informant who has filed the complaint specifically speaks about two persons having committed the crime. The mobile phone of first informant - complainant has been recovered by the prosecution from possession of Accused No.1 and the scooter used in the commission of crime was recovered from house of Accused No.2.

3.2. According to learned Prosecutor Ms. Gajare – Dhumal the scooter which was used in the crime was an Activa scooter which was

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in fact stolen by Accused No.3 and handed over to Accused No.2 for the purpose of committing crime. Nexus of Accused No.3 namely the Applicant in the present case emanates when the statement of his brother which is recorded by the prosecution is seen wherein he states that the moment he found out that the stolen mobile phone was sold out to one of his acquaintance whom he knew, he immediately asked the buyer to return it since it was stolen property. The brother of Applicant received the mobile phone from the buyer and he immediately handed it over to Accused Nos. 1 and 2. Indictment of the Applicant is on the ground that when Accused No.2 sold the stolen mobile phone to the purchaser / buyer (acquaintance of Applicant’s brother) the Applicant was present at that time and witnessed the transaction of Rs.7,000/- which the purchaser paid to Accused No.2.

3.3. According to learned Prosecutor Accused No.3 is a member of the gang led by Accused No.1 – Aftab and assisted him and other gang members in commission of crime therefore provisions of MCOCA have been invoked. That apart she would also submit that there are six antecedents primarily of other offences to his discredit and therefore considering the background conduct of Applicant his bail Application be rejected.

4. I have heard the learned Advocate and perused the record of the case. Prima facie insofar as precise role of Applicant is

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concerned, it is seen that save and except his presence at the time of sale of the stolen mobile phone there is no other incriminating material, inter alia, attributing any specific role of the Applicant to the present crime in question. Admittedly according to prosecution case when robbery is committed by Accused No.1 and 2 and role attributed to the present Applicant is about his presence when the stolen mobile phone was sold, I am of the opinion that Applicant can be released on bail.

5. Hence, Bail Application is allowed subject to the following

terms and conditions:-

(i) Applicant is directed to be released on bail on furnishing P.R. Bond in the sum of Rs.25,000/- with one or two sureties in the like amount;

(ii) Before his actual release from jail, Applicant shall furnish his address where he proposes to reside after his release from jail to the concerned Police Station and also to the trial Court;

(iii) After his release from jail, Applicant shall report to the Investigating Officer as and when called for;

(iv) Applicant shall attend the trial Court on first Tuesday of every month between 11.00 a.m. and 01.00 p.m.

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to mark his presence. If the first Tuesday of the said month falls on a holiday and / or non Court working day, the Applicant shall mark presence on the next working day;

(v) Applicant shall co-operate with the conduct of trial and attend the trial Court on all dates unless specifically exempted and will not take any unnecessary adjournments, if he does so, it will entitle the prosecution to apply for cancellation of this order;

(vi) Applicant shall not leave the State of Maharashtra without prior permission of the Trial Court;

(vii) Applicant shall not influence any of the witnesses or tamper with the evidence in any manner; and

(viii) In case of any infraction of the above conditions and / or two consecutive defaults in marking his attendance before trial Court, it shall attract the provisions of Section 439(2) of Cr.P.C. i.e. for cancellation of bail.

6. It is clarified that the observations made in this order are limited for the purpose of granting Bail only and I have not made any observations on merits of the case. The trial shall be adjudicated on the strength of the evidence led and strictly on its own merits being

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P.R. Rajput

uninfluenced with any of the prima facie observations made herein

above in this order.

Bail Application is allowed and disposed.

[ MILIND N. JADHAV, J. ]

Digitally signed by RAVINDRA RAVINDRA MOHAN MOHAN AMBERKAR AMBERKAR Date: 2025.04.24 20:22:48 +0530

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Procedural history

How this case reached the court

AI extract

Prior proceeding
Present regular bail application filed in connection with Spl. Case No. 791 of 2023 arising out of Crime No. 140 of 2023 registered with Mankhurd Police Station for offences under the IPC and MCOCA; Applicant arraigned as Accused No. 3.¶2
Prior proceeding
Alleged incident: on 21.02.2023 at around 3:00 a.m. the first informant was accosted by two accused on a bike; pillion rider allegedly snatched his mobile phone.¶3
Prior proceeding
Per prosecution, Accused No. 1 Aftab Sayyad is the alleged gang leader and the robbery is attributed to Accused Nos. 1 and 2 (Naushad).¶3
Prior proceeding
Applicant arrested on 22.02.2023; in custody for 2 years 2 months 2 days.¶2
Prior proceeding
Investigation recoveries: mobile phone of the first informant recovered from Accused No. 1; scooter used in the crime recovered from the house of Accused No. 2.¶3.1
Prior proceeding
First informant's complaint speaks of only two persons committing the crime; Applicant was admittedly not present at the incident spot and no recovery was made from him.¶3.1
Prior proceeding
Prosecution allegation: the Activa scooter used in the crime was stolen by Accused No. 3 and handed over to Accused No. 2 for committing the crime.¶3.2
Prior proceeding
Nexus alleged via brother's statement: brother learnt the stolen phone was sold to an acquaintance, obtained its return, and handed it back to Accused Nos. 1 and 2.¶3.2
Prior proceeding
Ground of indictment against Applicant: his alleged presence when Accused No. 2 sold the stolen mobile phone to the purchaser (acquaintance of Applicant's brother) for Rs. 7,000/-, which transaction he allegedly witnessed.¶3.2
Prior proceeding
Prosecution contention invoking MCOCA: Accused No. 3 alleged to be a member of the gang led by Accused No. 1 Aftab, assisting him and other gang members.¶3.3
Prior proceeding
Prosecution opposed bail citing six antecedents of other offences and the Applicant's background conduct.¶3.3