Bombay High Court
Tejas Sanjay Gayakwad vs The State Of Maharashtra, Thr. Pso, Ps, ... on 13 October, 2025
2025:BHC-NAG:10791
1 ba.636.25F.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (BA) NO. 636/2025
Tejas Sanjay Gayakwad Vs. The State of Maharashtra
.................................................................................................................................. .
Office Notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's order
or directions and Registrar's orders
...................................................................................................................................................
Mr. A. S. Manohar with Mr. Parth L. Sagdeo, Advocate for Applicant.
Mr. D. V. Chauhan, Sr.Advocate/P.P. with Ms. T. H. Udeshi, A.P.P. for
Non-applicant/State.
CORAM : MRS. VRUSHALI V. JOSHI, J.
RESERVED ON : 03.10.2025 PRONOUNCED ON : 13.10.2025
1. The applicant is arrested in Crime No.267/2024 registered with Police Station, Babhulgaon, District Yavatmal for the offences punishable under Sections 307, 397, 341, 294, 201 of the Indian Penal Code read with Section 3(1)(i), 3(2) and 3(4) of the Maharashtra Control of Organised Crime Act, 1999 (for short, 'MCOC Act').
2. It is the case of the prosecution that on 05.02.2024, the informant after attending one religious function, was returning towards village Paloti on his motorcycle. When he entered the vicinity of Kopra Barad Punarvasan, 5-6 unknown persons obstructed him. They snatched Rs.2,500/- from his pocket at the point of knife. When the informant resisted, co-accused inflicted blow of knife and caused grievous injuries to the informant. All the accused persons with intention to commit the murder of the informant, restrained him and assaulted him with deadly weapon. Upon hearing the shout of the informant, 3-4 people from Babhulgaon Petrol Pump came to rescue the 2 ba.636.25F.odt informant and took the informant to Government Hospital, Babhulgaon. Thereafter, he was shifted to Government Hospital at Yavatmal. The informant has identified the accused persons as the photos on Instagram were shown to the informant. The specific role is mentioned by identifying the accused persons on watching the photos on Instagram. He has stated that Prajjwal Rohankar hit him with knife. Yash Subhedar took the money from the victim's/informant's pocket while Shreyash Raut was holding the hands of the victim. Farukh Lali and Tejas Gayakwad were present there.
3. The learned Counsel for the applicant has stated that there is no allegation against this applicant. No specific role is attributed to the applicant. The pictures were shown to the informant on Instagram, he identified the applicant. It is highly improbable that in darkness and during the scuffle, the informant was able to register the faces of all the accused persons. Therefore, the First Information Report is based on concocted facts and no case is made out against this applicant.
4. Test Identification Parade was conducted on 28.05.2024, after a lapse of more than three months. There is a gross delay in conducting the said Parade, which is neither explained nor any supplementary statement after the Test Identification Parade is recorded. Therefore, the identification in Test Identification Parade cannot be relied upon. It is a settled position of law that if the accused person was shown to the informant, then not only the evidence of Test Identification Parade is inadmissible, but also the identification is meaningless and vague. The 3 ba.636.25F.odt applicant has placed reliance on the judgment of the Hon'ble Apex Court in the case of Gireesan Nair and Ors. Vs. State of Kerala reported in (2023) 1 SCC 180, wherein by relying on earlier judgment it has been held in paragraph No.44 as under, ".....the prosecution should take precautions and establish before the court that right from the day of his arrest, the accused was kept "baparda" to rule out the possibility of his face being seen while in police custody. Later, in Lalli v. State of Rajasthan [(2003) 12 SCC 666] and Maya Kaur Baldevsingh Sardar v. State of Maharashtra [(2007) 12 SCC 654], this Court has categorically held that where the accused has been shown to the witness or even his photograph has been shown by the investigating officer prior to a TIP, holding an identification parade in such facts and circumstances remains inconsequential."
5. On 23.06.2024, Sections of MCOC Act were added. The learned Counsel for the applicant has stated that Section 3(1)(i) of the MCOC Act is not at all attracted against the applicant, there is no offence pending against the applicant which has resulted in death of any person. Further, Section 3(2) of the MCOC Act is also not attracted, which reads as thus, whoever, conspires or attempts to commit or advocates, abets or knowingly facilitates the commission of an organized crime. Moreover, no such evidence is brought on record which would reveal that the applicant has committed or advocated, abetted or knowingly facilitated the commission of an organized crime. There is no nexus with the alleged organized crime syndicate and 4 ba.636.25F.odt neither the modus operandi adopted has any similarity which would lead to a conclusion that the applicant is a part of an organized crime syndicate. It cannot be said that the applicant has been indulged in any continuous unlawful activity done by the organized crime syndicate or defined under the MCOC Act. At no point of time, the applicant had relation with any member of any syndicate or group. The applicant has no nexus with the persons made accused in the present crime and, therefore, no question of applicant being a member of any organized crime syndicate arises. Therefore, the provisions under MCOC Act cannot be invoked against the applicant. The applicant denied that only because the offence under MCOC Act is registered against the applicant, he cannot be released on bail. He has relied on the judgment of the Hon'ble Apex Court in the case of Jalaluddin Khan Vs. Union of India reported in (2024) 10 SCC 574, wherein it is observed that the Court has to consider whether there are reasonable grounds for believing that accusation against the accused is prima facie true.
6. The learned Counsel for the applicant has not denied that the applicant has criminal antecedents, however, none except one, with one of the alleged members of the syndicate. There is no similarity between the modus operandi of any offence and the present offence. The accused has not been convicted for any offence. The crime chart attached with the charge-sheet would reveal that a total of 5 crimes including the present have been registered against the applicant. However, in two of the said crimes, the applicant has been acquitted. Two are pending before 5 ba.636.25F.odt the Trial Court. Only one charge-sheet which is filed under Section 122 of the Maharashtra Police Act is with one of the co-accused. Therefore, there is no nexus and modus operandi as such with the alleged syndicate. The entire charge-sheet does not spell out any specific allegations or involvement of the applicant in the present crime.
He has placed reliance on the judgment of this Court in the case of Rajendra Vs. State of Maharashtra reported in 2020 SCC OnLine Bom 9322, wherein it is observed in paragraph No.27 as under :
"27. The Apex Court opined that the restriction on the power of the Court to grant bail should not be pushed too far and bail may be granted if the Court, having regard to the material brought on record is satisfied that in all probability the accused may not be ultimately convicted."
He has also placed reliance on the judgment of this Court in the case of Akash R. Lokhande Vs. State of Maharashtra reported in 2020 SCC OnLine Bom 887, wherein it is held that subsequent identification of the accused in Test Identification Parade is not of much importance.
7. There are 98 witnesses which are to be examined and till date the trial has not at all progressed. Therefore, there is a huge delay in conducting trial. The rigors of Section 21(5) of the MCOC Act are not at all attracted. There is not a single shred of evidence which would lead to a conclusion that the provisions of MCOC Act are applicable to the applicant.
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8. It is specifically stated that during the alleged commission of the offence, the applicant was not on bail in any case registered under the provisions of the MCOC Act. Thus, there is no bar of Section 21(5) of the MCOC Act for entertaining the present application.
9. On perusal of the record it reveals that in most of the offences that were registered against the applicant, he has been acquitted after conducting a full-fledged trial. Only omnibus allegation of the applicant being on the spot is revealed. The offence as alleged is not at all made out, there was no intention on the part of the applicant to commit any offence. Hence prayed to release him on bail.
10. The learned Public Prosecutor/Senior Counsel Mr. Chauhan opposed the application stating that the applicant is having criminal history and 4 offences are registered against him, as under :
i] Crime No.273/2016, punishable under Sections 302 and 34 of the Indian Penal Code.
ii] Crime No.254/2020, punishable under Sections 307, 504 and 506 of the Indian Penal Code.
iii] Crime No.31/2021, punishable under Sections 324, 305, 305 and 506 of the Indian Penal Code.
iv] Crime No.1138/2021, punishable under Section 122 of the Maharashtra Police Act all registered with Police Station, Awdhutwadi.
11. In the present application, the applicant is an accused along with gang leader and other gang members. There is a direct nexus of the applicant in the present crime along with the gang leader. The applicant has caught hold of 7 ba.636.25F.odt the victim and the other accused persons inflicted the blows of knife upon the victim as well as snatched the amount of Rs.2,500/- from the pocket of the complainant. The Call Detail Record between the gang leader and the applicant shows that the applicant was in continuous contact with the gang leader and other accused persons.
12. The learned A.P.P. has submitted that the rigors of provisions under Section 21(4) of the MCOC Act will be applicable in addition to the normal restrictions, which are available for releasing the accused on bail. Looking at the facts that the applicant is the gang member of Yash Subhedar's gang, the application be rejected.
13. The allegations are about involvement of this applicant in the offence under Section 307 of the Indian Penal Code. It appears that the applicant was present when the robbery was committed. The first informant has identified the accused/applicant from the photos on Instagram. Though he has identified the persons by naming them and attributed the role, however, Test Identification Parade was conducted after three months.
14. The learned Public Prosecutor has placed reliance on the judgment of Jayshree Kanabar Vs. State of Maharashtra and Ors. reported in 2025 SCC OnLine SC 13 wherein it is observed that, granting of bail is an outcome of consideration akin a mini-trial. In this case, it is necessary to consider how the accused were identified by the injured. It is a settled principle that, if the photograph is published in news paper before Test Identification Parade, it vitiates the trial. In such situation, identification itself creates doubt.
8 ba.636.25F.odt
15. There is nothing in charge-sheet to show that the applicant has taken part in or has committed any unlawful activity as defined under MCOC Act. There is no material to show that applicant advocated, abetted or incited commission of any unlawful activity. There is no material to show that there was any conspiracy. The incident which took place does not disclose active participation. While attributing the role, the informant has also mentioned the presence of the applicant.
16. This position is expounded in the case of Ranjitsing Brahmajeetsing Sharma Vs. State of Maharashtra and Anr. reported in (2005) 5 SCC 294, it is observed as under :
"85. A reading of para 31 in Ranjitsing Brahmajeetsing Sharma case [(2005) 5 SCC 294] shows that in order to invoke MCOCA even if a person may or may not have any direct role to play as regards the commission of an organised crime, if a nexus either with an accused who is a member of an "organised crime syndicate" or with the offence in the nature of an "organised crime" is established that would attract the invocation of Section 3(2) of MCOCA.
It was made further clear that such an analysis to be made to ascertain the invocation of MCOCA against a person need not necessarily go to the extent for holding a person guilty of such offence and that even a finding to that extent need not be recorded."
45. It is, furthermore, trite that for the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the 9 ba.636.25F.odt privilege of bail.
46. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. However, while dealing with a special statute like MCOCA having regard to the provisions contained in Sub-section (4) of Section 21 of the Act, the court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction. The findings recorded by the court while granting or refusing bail undoubtedly would be tentative in nature, which may not have any bearing on the merit of the case and the trial court would, thus, be free to decide the case on the basis of evidence adduced at the trial, without in any manner being prejudiced thereby."
17. The learned Public Prosecutor has filed on record the Chart of offences committed by the applicant showing his involvement in 4 offences in the past. In one of the offences under Section 302 of the Indian Penal Code, the applicant is acquitted. These offences will have to be considered as having been registered against the applicant only in individual capacity except one offence under Maharashtra Police Act. They do not have any nexus whatsoever with the activities of the crime syndicate, so the charge-sheets were filed only in individual capacity against the present applicant and not being a member of crime syndicate. Therefore, it would have to be said that so far as the present applicant is concerned, there is no record or no material available on record giving rise to a possibility of the applicant indulging in an offence under the MCOC Act in a reasonable manner.
10 ba.636.25F.odt
18. Considering the role attributed to the present applicant, the material collected during the investigation is in presence of the applicant on the spot and the Test Identification Parade is doubtful. Therefore, the present application deserves to be allowed imposing certain conditions. Accordingly, I proceed to pass the following order :
i] The criminal application is allowed.
ii] The applicant shall be released on bail in connection with Crime No.267/2024 registered with Police Station, Babhulgaon, District Yavatmal for the offences punishable under Sections 307, 397, 341, 294, 201 of the Indian Penal Code read with Section 3(1)(i), 3(2) and 3(4) of the Maharashtra Control of Organised Crime Act, 1999 (for short, 'MCOC Act'), on furnishing P.R. Bond of Rs.25,000/- with one solvent surety in the like amount.
iii] The applicant shall not in any way tamper with the prosecution evidence.
iv] The applicant shall not pressurize or threaten the prosecution witnesses.
v] The applicant shall attend the concerned police station on every Monday and Saturday between 1:00 p.m. to 2:00 p.m. 11 ba.636.25F.odt vi] The applicant shall co-operate the Investigation Officer.
The Criminal application is disposed of accordingly.
(MRS.VRUSHALI V. JOSHI, J.) RGurnule Signed by: Mrs. R.M. MANDADE Designation: PA To Honourable Judge Date: 13/10/2025 20:47:54