Bombay High Court
Samir Sakir Ali @ Ballu Naik vs State Of Mha. Thr. Ps Nandanvan ... on 17 October, 2022
Author: G. A. Sanap
Bench: G. A. Sanap
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION (BA) NO. 1172 OF 2022
SAMIR SAKIR ALI @ BALLU NAIK
VERSUS
STATE OF MAH., THRU. P.S.O., P.S., NANDANVAN, NAGPUR
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Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
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Mr. Anil S. Mardikar, Senior Advocate with Mr. Dipesh N. Mehta,
Advocate for the applicant.
Mr. S. D. Sirpurkar, A. P. P. for the non-applicant/State.
CORAM : G. A. SANAP, J.
DATE : OCTOBER 17, 2022.
1. This is an application for bail by the applicant, who
has been arrested in Crime No. 591/2021 registered at
Police Station, Nandanwan, Nagpur for the offences
punishable under Sections 395, 386, 307, 323, 324, 427,
504 of the Indian Penal Code read with Section 135 of the
Maharashtra Police Act and Sections 3(1)(ii), 3(2), 3(4) of
the Maharashtra Control of Organized Crime (MCOC) Act,
1999.
2. The offence under Section 307 of IPC and the
offences under the MCOC Act, as stated by the prosecution,
are the serious offences. It is the case of the applicant that
there are counter FIRs arising out of the same incident.
Accused no.7, namely Irfan Khan @ Bhola, in this crime is
the informant in another crime registered against the
informant in this case and other persons. Accused no.7 in
this crime was admitted in the hospital due to stab injuries
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sustained by him and as yet he has not been arrested. It is
stated that there is no evidence to prima facie make out
alleged offences to deny bail to the applicant. The injuries
sustained by injured Shaikh Aifas Shaikh Aslam and Shoeb
Ali Kader Ali are the simple injuries. According to the
applicant, looking to the nature of the injuries, Section 307
of the IPC would not be attracted. Similarly, Section 395 of
the IPC has been wrongly invoked in this case inasmuch as
Activa motorbike was not the subject matter of robbery or
decoity. It is the case of the applicant that the offences
under the MCOC Act would not have been invoked against
him. There is no commonality or nexus between the crimes
registered against him to invoke the provisions of the
MCOC Act.
3. The State has opposed the application. It is
contended that the crime committed is serious in nature.
The weapon used in commission of the crime was knife.
The informant had sustained stab injuries. The main
accused is yet to be arrested. According to the prosecution,
in view of the provisions of the MCOC Act, no case has
been made out to grant bail to the applicant.
4. I have heard Mr. Anil S. Mardikar, learned Senior
Advocate, assisted by Mr. Dipesh Mehta, learned advocate
for the applicant and Mr. S.D. Sirpurkar, learned Additional
Public Prosecutor for the State. Perused the record and
proceedings.
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5. It is seen on perusal of the record that counter FIRs
have been registered arising out of the same incident.
Accused no.7, who is informant in another FIR lodged
against the informant and other persons in this crime, had
sustained serious injuries. He was admitted in the hospital,
He has undergone surgery. He is yet to be arrested in this
crime.
6. It is pertinent to mention at this stage that Sayyad
Parvez Ali, who is accused no.4 in this crime, has been
granted bail by this Court (Coram : Anil S. Kilor, J.) on
21.09.2022. Perusal of the order dated 21.09.2022 would
show that the applicant is also similarly circumstanced.
The injuries sustained by the informant have been taken
into consideration to form a prima facie opinion by this
Court vis-a-vis invocation of Section 307 of the IPC.
Similarly, this Court found invocation of Section 395 of the
IPC doubtful in the given set of facts and circumstances. It
is to be noted that in all respect the applicant is similarly
circumstanced with accused no.4, who has been released on
bail by order dated 21.09.2022. It is further pertinent to
note that after the order dated 21.09.2022 was passed by
this Court, the learned Special Judge (MCOC Act), Nagpur
has granted bail to accused Faizan Ali Gaffar Ali in the same
crime. It is seen on a perusal of the record that the present
applicant appears to have been involved in one crime when
he was minor. The said offence, in my view, therefore,
cannot be taken into consideration to decide commonality
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and nexus to invoke the provisions of the MCOC Act. In
one crime he has been acquitted. The remaining crime
could not be said to have been committed being the
member of a syndicate.
7. In the facts and circumstances, I am of the opinion
that in the absence of commonality and nexus between the
crime, it becomes very difficult to sustain the objection
raised by invoking the rigor of Section 21(4) of the MCOC
Act. As such, I conclude that mere invocation of the
provisions of the MCOC Act against the applicant would
not be an impediment in the way of granting bail to the
applicant. The investigation in the matter is over. Charge-
sheet has been filed. The detention of the applicant or his
custodial interrogation is not necessary. This applicant,
therefore, deserves parity with the accused no.4, who has
been granted bail by this Court on 21.09.2022. Hence, the
following order :
ORDER
1. The Criminal Application is allowed.
2. Applicant - Samir Sakir Ali @ Ballu Naik be released on bail in Crime No. 591/2021 registered at Police Station, Nandanwan, Nagpur for the offences punishable under Sections 395, 386, 307, 323, 324, 427, 504 of the Indian Penal Code read with Section 135 of the Maharashtra Police Act and Sections 3(1)(ii), 3(2), 3(4) of the Maharashtra Control of Organized Crime (MCOC) Act, 1999, on his furnishing PR bond in the sum of Rs.20,000/- with one ::: Uploaded on - 18/10/2022 ::: Downloaded on - 18/10/2022 21:24:59 ::: 5 5 ba1172.22.odt solvent surety of the like amount.
3. The applicant shall not tamper with the prosecution evidence.
4. He shall not threaten or pressurize the prosecution witnesses in any manner.
5. He shall regularly attend the trial Court.
6. The application stands disposed of in above terms.
JUDGE Diwale ::: Uploaded on - 18/10/2022 ::: Downloaded on - 18/10/2022 21:24:59 :::