Bombay High Court
Aamir Karim Pathan vs The State Of Maharashtra on 17 January, 2020
Author: Prakash D. Naik
Bench: Prakash D. Naik
Sajakali Jamadar 1 of 5 902-BA-414-2019.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 414 OF 2019
Aamir Karim Pathan ...Applicant
Versus
The State of Maharashtra ...Respondent
.....
Mr. Nitin B. Kamble, Advocate for the Applicant.
Mr. H. J. Dedhia, APP for the State-Respondent.
.....
CORAM : PRAKASH D. NAIK, J.
DATE : 17th January, 2020
PC :
1. The Applicant is seeking anticipatory bail in connection with
C.R.No.164/17 registered with Kondhwa Police Station, Pune.
Initially the offence was registered under sections 307,
120(B), 143, 147, 148, 149 of the Indian Penal Code and under
section 4(25) of Arms Act and section 37(1) of
Maharashtra Police Act. Subsequently, section 3(1)(ii), 3(2) 3(4) of
Maharashtra Control of Organized Crimes Act (MCOC) were also
added.
2. The incident has occurred on 08/05/2017 in which
one Shubham Jadhav was assaulted. The FIR was lodged
by mother of Shubham. Admittedly she is not an eyewitness, but she
had seen Shubham leaving their house at 10.45 p.m. on 07/05/2017
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Sajakali Jamadar 2 of 5 902-BA-414-2019.doc
to go to Gymnasium. Thereafter the first informant Chhaya
Jadhav received a phone call that Shubham was assaulted. The first
informant and others went in search of Shubham. He was found
lying in injured condition on open ground near Mhasoba temple.
Shubham was removed to Chintamani Hospital, thereafter to Rao
Hospital and subsequently to Rubi Hospital. He was admitted in ICU.
The investigation was carried out. The Applicant was arrested.
3. The provisions of MCOC were invoked on 31/05/2017. The
chargesheet is filed. The chargesheet contains statements of
two eyewitnesses Somesh Laxman Pawar and Vijay Sanjay
Shinde. They had witnessed the actual assault committed on
Shubham by about 8 to 9 persons with sharp weapons. The
assailants were not known to them. However, on
23/06/2017 identification parade was held wherein both these
witnesses have identified the present Applicant.
4. The chargesheet contains injury certificate of
Shubham. He has suffered four serious injuries on his head, face and
chest. Dimensions of those five injuries were substantial. All those
injuries were described as fatal. Offence u/s 307 of the
Indian Penal Code is clearly made out. The application of MCOC
shows that the present Applicant was a member of an organized
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crime syndicate led by one Ashfaq to establish supremacy over the
rival gang in the area.
5. Learned advocate for the applicant submitted that the
applicant is in custody from 18th May, 2017. There is no material to
show that the applicant being member of crime syndicate was
involved in carrying unlawful violence activities. The provisions of
MCOC Act are not applicable. The alleged gang leader Ashpaq @
Gabya Babulal Shaikh has been granted bail by the MCOC Special
Court vide order dated 19th July, 2019. It is further submitted that
the role attributed to the applicant by the eye witness is vague. The
applicant was identified in the parade which was conducted
belatedly. The role assigned to the applicant is that he had assaulted
the victim by fist and kick blows. It is further submitted that there is
no other cogent evidence to corroborate the involvement of the
applicant in the crime. The confessional statement of the applicant
recorded under Section 18 of MCOC Act was retracted. The said
statement in any case do not indicated that the applicant was
member of crime syndicate. The Sessions Court while granting bail to
Ashpaq has considered the fact that the other cases registered against
him were resulted in acquittal and there was no material to invoke
provisions of MCOC Act.
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6. Learned APP submitted that the applicant has been identified
by two witnesses. The injured had sustained several injuries. He was
brutally assaulted. He is not in a position to give statement. As and
when he is in position to give the statements, further investigation is
required to be conducted. The confession of the applicant was
recorded under Section 18 of MCOC Act which shows his
involvement in the crime. This Court had rejected the application for
bail preferred by Majhar Kashmiri. Eye witnesses had given similar
role to the said accused.
7. I have perused the charge-sheet. On account of rivalry between
two groups, the injured Shubham was brutally assaulted by the
accused. The applicant had participated in the crime. He was
identified by two witnesses. Assuming that the applicant has been
attributed role of assaulting the deceased by fist and kick blows, the
offence is of serious nature. The deceased had sustained several
injuries. There is recovery of clothes and motorcycle from the
applicant. The learned counsel for the applicant however submitted
that the said motorcycle was not owned by the applicant. The
confessional statement of the applicant was recorded under Section
18 of MCOC Act. In the said confessional statement he has referred
to his involvement in the crime. He has also referred to the
conspiracy by the accused to assault the injured. The said statement
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also indicates that he had actively participated in the crime. The co-
accused Ashpaq was not named by the eye witnesses nor he was
identified. Majhar Kashmiri was attributed similar role. His
application has been rejected by this Court. The applicant contends
that confessional statements has been retracted by him subsequently.
The said aspect can be considered at the time of trial. While rejecting
application for bail preferred by the Majhar Kashmiri, this Court had
observed that, considering the circumstances against him and
application of MCOC, at this stage it is not possible to record prima
facie observations that the offences under Section MCOC Act is not
committed and even otherwise the offences alleged by the said
accused is serious. The injured had sustained grievous injuries on
CLW over frontal region, CLW over chin, including lower lips, frontal
region up to left side forehead and CLW on right side chest and CLW
over occipital region. Considering the aforesaid circumstance, no
case for grant of bail is made out.
ORDER
Criminal Bail Application No.414 of 2019 stands rejected and disposed of accordingly.
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