Bombay High Court
Mohammad Shabbir Noor Mohd. Momin vs The State Of Maharashtra on 7 August, 2024
Author: N. J. Jamadar
Bench: N. J. Jamadar
2024:BHC-AS:31722
BA-711-2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 711 OF 2024
Mohammad Shabbir Noor Mohd. Momin ...Applicant
Versus
The State Of Maharashtra ...Respondent
Mr. Nandini Tandel for the Applicant.
Ms. Mahalaxmi Ganapathy, APP for the Respondent - State.
PSI Dhotre, A.E. Cell, DCB, CID, Mumbai.
ETHAPE
Digitally signed
by ETHAPE
DNYANESHWAR
DNYANESHWAR ASHOK
ASHOK
CORAM : N. J. JAMADAR, J.
Date: 2024.08.08
19:47:10 +0530
DATE : 7th AUGUST 2024
PC.:
1. Heard the learned Counsel for the parties.
2. The applicant, who is arraigned in MCOC Special Case No.4
of 2017 for the offences punishable under Sections 120-B, 307,
506(2) read with Section 34 of the Indian Penal Code, 1860,
Sections 3, 25, 27 and 35 of the Arms Act, 1959 and Section 37(1)
(a) read with Section 135 of the Maharashtra Police Act, 1951, has
preferred this application to enlarge him on bail.
3. Initially C.R.No.3 of 2017 was registered at Vile Parle Police
Station on the basis of a report lodged by the first informant who
was the Manager of Gazali Hotel. The substance of the report was
that on 21st October 2016 while the first informant was at Gazali
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Hotel, Andheri, Mumbai, a person came to the counter and handed
over a card to the informant which contained a written note stating
"Ravi Bhai 00447440190035 call kar nahi to agli bar warning nahi,
sidha upar" The said person had allegedly threatened the first
informant to apprise the owner of Gazali Hotel by uttering the
words "Tere andar ke baap ko dena aur call karne bolna, call nahi
kiya to upar bhejunga".
4. The first informant alleged, the said person had fired a round
from the pistol towards the first informant and, thereafter, fled
away along with his associates who were waiting outside the hotel
on a motorcycle. The investigation revealed that the persons, who
came thereat and attempted to commit extortion and fired at the
first informant with intent to commit murder, are the members of
the organized crime syndicate, of which Ravi Pujari (accused No.8)
is the gang leader. Thus, the provisions contained in the
Maharashtra Control of Organized Crime Act, 1999 (MCOCA,
1999) came to be invoked.
5. Mr. Ramesh Kitta Poojari (A2) Mrityunjay Narayan Das @
Montu @ Bangali (A3) were arrested on 5 th February 2017. Suresh
Kumar Pandian Pillai (A4) came to be arrested on 8 th February
2017. The applicant came to be arrested on 8th February 2017.
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6. M. Das @ Montu (A3) was allegedly the person, who had
entered into Gazali Hotel, thrown the chit containing the above
note and fired at the first informant. M. Das @ Montu had
allegedly gone to Gazali Hotel alongwith the applicant (A5) and
fled away after the firing as the pillion rider on the motorcycle
driven by Applicant (A5).
7. At the outset, the learned Counsel for the applicant
submitted that the co-accused M. Das @ Montu (A3), Suresh
Kumar Pandiyan Pillai (A4) and Ramesh Kitta Poojari (A2) have
been released on bail by this Court by an order dated 22 nd January
2024 on the ground of long incarceration. Prior thereto, Suresh
Muttiah Poojari @ Suresh Anna (A1) was released on bail by this
Court by an order dated 28th February 2023. This Court has also
released Dhanpal Krushna Shettiya (A6) on bail by an order dated
31st July 2024. Therefore, the applicant is also entitled to the same
dispensation.
8. Ms. Ganapathy, the learned APP, fairly submitted that the
ground of long period of incarceration, which weighed with this
Court in releasing abovenamed co-accused on bail, may govern the
claim of the applicant for bail as well. The learned APP, however,
submitted that there are two antecedents of the applicant. He has
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been arraigned in C.R. No. 06 of 2017 registered with Borsad
Police Station, Anand, Gujarat for the offences punishable under
Section 307, 120B of the Indian Penal Code, 1860 and Section 25
of the Arms Act and C.R. No. 58 of 2014 registered with Kadi Police
Station, Mehsana, Gujarat for the offences punishable under
Sections 307, 395, 397 of IPC and Section 25 of the Arms Act.
Thus, the accused does not deserve to be enlarged on bail as there
is a strong possibility of the applicant again indulging in identical
offences, if released on bail.
9. Suffice to note that, while releasing the co-accused M. Das @
Montu and others on bail, this Court had noted that those
applicants also had antecedents and that put the Court on guard,
yet, having regard to the long period of incarceration, this Court
considered it appropriate to release those accused on bail by
imposing stringent conditions. The observations in paragraph
No.15 to 25 of the said order deserve extraction. They read as
under:-
"15. Undoubtedly, the statutory restrictions on the grant
of bail in special enactments like MCOCA, 1999, NDPS Act,
1985 and Unlawful Activities Prevention Act, 1967, are to
achieve the object of the respective enactments. Having
regard to the nature of the offences, the legislature has
considered it expedient to put additional restrictions in the
matter of grant of bail. There can be no qualm over the fact
that the offences being of grave nature, release of the
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accused therein, is conditioned by the twin satisfaction.
However, there is, at the same time, a competing claim of
the unjustified denial of personal liberty. These provisions
are thus, premised on the justification that the trial in which
those provisions apply is also concluded expeditiously.
16. In the case of Shaheen Welfare Association V/s.
Union of India and Ors.1 the Supreme Court enunciated that
the stringent provisions can be justified on the presumption
that the trial of the accused will take place without undue
delay. The observations in paragraph No.10 reads as under:
"10. Bearing in mind the nature of the crime and the
need to protect the society and the nation, TADA has
prescribed in Section 20(8) stringent provisions for
granting bail. Such stringent provisions can be justified
looking to the nature of the crime, as was held in Kartar
Singh case2, on the presumption that the trial of the
accused will take place without undue delay. No one can
justify gross delay in disposal of cases when undertrials
perforce remain in jail, giving rise to possible situations
that may justify invocation of Article 21."
17. In Union of India V/s. K.A.Najeeb (supra), where the
accused was facing trial for the offences punishable under the
Unlawful Activities Prevention Act and the rigours of Section 43-D(5)
of the said Act, were attracted, the Supreme Court observed as
under :-
"12. Even in the case of special legislations like the Terrorist
and Disruptive Activities (Prevention) Act, 1987 or the Narcotic
Drugs and Psychotropic Substances Act, 1985 ("NDPS") which too
have somewhat rigorous conditions for grant of bail, this Court in
Paramjit Singh v. State (NCT of Delhi) 3, Babba v/s. State of
Maharashtra4 and Umarmia v/s. State of Gujarat 5 enlarged the
accused on bail when they had been in jail for an extended period
of time with little possibility of early completion of trial. The
constitutionality of harsh conditions for bail in such special
enactments, has thus been primarily justified on the touchstone of
speedy trials to ensure the protection of innocent civilians.
15. This Court has clarified in numerous judgments that the
liberty guaranteed by Part III of the Constitution would cover
within its protective ambit not only due procedure and fairness but
also access to justice and a speedy trial. In Supreme Court Legal Aid
Committee (Representing Undertrial Prisoners) v/s. Union of
India9, it was held that undertrials cannot indefinitely be detained
pending trial. Ideally, no person ought to suffer adverse
1 (1996) 2 SCC 616
2 (1994) 3 SCC 569
3 (1999) 9 SCC 252
4 (2005) 11 SCC 569
5 (2017) 2 SCC 731
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consequences of his acts unless the same is established before a
neutral arbiter. However, owing to the practicalities of real life
where to secure an effective trial and to ameliorate the risk to
society in case a potential criminal is left at large pending trial,
Courts are tasked with deciding whether an individual ought to be
released pending trial or not. Once it is obvious that a timely trial
would not be possible and the accused has suffered incarceration
for a significant period of time, Courts would ordinarily be
obligated to enlarge them on bail.
17. It is thus clear to us that the presence of statutory
restrictions like Section 43-D(5) of UAPA per-se does not oust the
ability of Constitutional Courts to grant bail on grounds of violation
of Part III of the Constitution. Indeed, both the restrictions under a
Statue as well as the powers exercisable under Constitutional
Jurisdiction can be well harmonised. Whereas at commencement of
proceedings, Courts are expected to appreciate the legislative policy
against grant of bail but the rigours of such provisions will melt
down where there is no likelihood of trial being completed within a
reasonable time and the period of incarceration already undergone
has exceeded a substantial part of the prescribed sentence. Such an
approach would safeguard against the possibility of provisions like
Section 43-D (5) of UAPA being used as the sole metric for denial of
bail or for wholesale breach of constitutional right to speedy trial."
18. The Supreme Court has thus enunciated in clear and explicit
terms that the rigours of the provisions which restrict the grant of bail
will meltdown where there is no likelihood of the trial being
completed within a reasonable time and the period of incarceration
already undergone has exceeded substantial part of the prescribed
Sentence.
19. Reverting to the facts of the case, it is imperative to note that
the punishment for the major offence punishable under Section 307
of IPC, in the absence of any hurt having been caused to any person,
may extend to imprisonment for 10 years. The applicants are in
custody for almost 7 years. The offences punishable under Sections
3(1)(ii), 3(2) and 3(4) of the MCOCA, 1999, entail punishment of
imprisonment which shall not be less than five years but which may
extend to imprisonment for life. The period of incarceration of each of
the applicants exceeds the minimum sentence prescribed under each
of the aforesaid sections.
20. I find substance in the submission on behalf of the Applicants
that since not a single witness has yet been examined, it is unlikely
that the trial can be concluded within a reasonable period.
21. Learned APP made an endeavour to urge that non co-
operation by the accused has also been contributing to the delay in
the conclusion of the trial.
22. Prima facie, copies of the Roznama of the proceedings do not
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indicate that the applicants are solely responsible for the protraction
of the trial. In any event, the period of incarceration of the applicants
is such that their claim cannot be contested on the ground that they
have also contributed for the delay in the disposal of the cases.
23. On the aspect of parity, it is necessary to note the Applicants
- Ramesh Pujari and Sureshkumar Pandiyan Pillai have been roped in
as the co-conspirators. Suresh Muttiah @ Suresh Anna - Accused
No.1, who has been released on bail by a order dated 28 February
2023, was also attributed the role of co-conspirator. The court
recorded that in that view of the matter, the criminal antecedents of
the said applicant should not be an impediment in granting bail to
him.
24. Indeed, there are antecedents of the applicants. Accused
No.2 Ramesh Pujari is stated to be involved in 7 cases. He has been
convicted in one case and acquitted in three cases. Three cases are
pending trial. Applicant/accused No.4 - Sureshkumar Pandiyan Pillai
is also involved in 8 cases and he has been convicted in three cases
and four cases are pending trial and in one case he has been
acquitted. The applicant/accused No.3 - Mrityunjay Narayan Das @
Montu @ Bangali, is stated to be involved in three cases and has been
acquitted in one and two cases are pending trial.
25. The antecedents of the applicants put the Court on guard. It
would, therefore, be expedient to impose stringent conditions while
directing the release of the applicants on bail."
10. The applicant has been in custody for more than seven and a
half years. It is extremely unlikely that trial can be concluded
within a reasonable period. In the face of such long incarceration,
the statutory restrictions in the matter of grant of bail melt down.
At any rate, the applicant is entitled to claim party with those
accused. The apprehension on the part of the prosecution of the
applicant indulging in identical offences, can be taken care of by
imposing conditions. Hence, the following order:-
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ORDER
(i) The Application stands allowed. (ii) The Applicant -Mohammad Shabbir Noor Mohd. Momin be
released on bail in MCOCA Special Case No.4 of 2017 in connection with C.R.No.3 of 2017 registered with D.C.B. C.I.D. Anti-Extortion Cell, Mumbai, (C.R.No.349 of 2016 registered with Vile Parle Police Station), on furnishing P.R. bond of Rs.1,00,000/- with one or more sureties in the like amount.
(iii) On being released on bail, the Applicant shall not enter Mumbai, Mumbai Suburban District and Thane District, except for the purpose of attending trial and reporting to the Investigating Officer.
(iv) The applicant shall report to the D.CB. C.I.D. Anti Extortion Cell, Mumbai, every month i.e. on first Monday between 11.00 a.m. to 1.00 p.m.
(v) The applicant shall furnish his contact details and residential addresses to the D.C.B. C.I.D. Anti-Extortion Cell, Mumbai, while residing outside Mumbai, Mumbai Suburban and Thane Districts and shall keep them updated in case there is any change.
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(vi) The applicant shall report to the jurisdictional Police Station
where the Applicant would reside, on every alternate Sunday between 11.00 a.m. to 1.00 p.m.
(vii) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing the facts to court or any police officer. The applicant shall not tamper with evidence.
(viii) The applicant shall regularly attend the proceedings before the jurisdictional Court.
(ix) By way of abundant caution, it is clarified that the observations made hereinabove are confined for the purpose of determination of the entitlement for bail and they may not be construed as an expression of opinion on the guilt or otherwise of the applicant and the trial Court shall not be influenced by any of the observations made hereinabove.
(x) Application disposed.
(N. J. JAMADAR, J.)
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