Bombay High Court
Dhanpal Krushna Shettiyar vs State Of Maharashtra on 31 July, 2024
Author: N. J. Jamadar
Bench: N. J. Jamadar
2024:BHC-AS:30766
Digitally signed
by PALLAVI
MAHENDRA
PALLAVI WARGAONKAR
MAHENDRA
WARGAONKAR Date:
2024.08.03
10:49:56 6-BA-3373-2023 (CR).doc
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 3373 OF 2023
Dhanpal Krushna Shettiyar ...Applicant
Versus
State of Maharashtra ...Respondent
Mr. Kamlesh N. Gujar, Advocate for the Applicant.
Mr. A.A. Naik, APP for the Respondent - State.
PSI Shri Dhotre, A.E.Cell, Mumbai present.
CORAM : N. J. JAMADAR, J.
DATE : 31st JULY 2024.
PC.:
1. Heard learned counsel for the Applicant and the learned APP.
2. This is an application for bail in M.C.O.C. Special Case No.4 of 2017
for the offences punishable under Sections 120B, 307, 506(2) r/w 34 of the
Indian Penal Code, 1860 and Sections 3, 25, 27 and 35 of the Arms Act and
Sections 3(1)(ii), 3(2) and 3(4) of the M.C.O.C. ACT, 1999.
3. At the outset, the learned counsel for the Applicant submitted that
the Applicant has been in custody for 7 years and 5 months. The co-
accused, who have been attributed major role in the alleged offences, have
been enlarged on bail by order dated 22 nd January 2024, on the count of
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long incarceration. The Applicant has been arraigned on the basis of
suspicion only. Initially, the statements of the Applicant were recorded as a
witness. Lateron, the applicant came to be arrested on 10 th February 2017 in
connection with the incident which had occurred on 21 st October 2016.
4. 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 21 October 2016
while the first informant was at Gazali Hotel, Andheri, Mumbai, a person
came to the counter and handed over a card to the informant which
contained written note - "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".
5. The first informant alleged, the said person 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
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Pujari (A8) is the gang leader. Thus, the provisions contained in the
Maharashtra Control of Organized Crime Act, 1999 ("MCOCA, 1999")
came to be invoked.
6. Co-accused Mr. Mrityunjay Narayan Das @ Montu @ Bangali (A3),
Suresh Kumar Pandiyan Pillai (A4) were released on bail by this Court by
order dated 22nd January 2024. While releasing the aforesaid co-accused,
this Court had noted that another co-accused - Suresh Kumar was released
on bail by this Court by order dated 28 th February 2023. It was noted that
abovenamed co-accused were in custody for almost 7 years.
7. The learned APP resisted the prayer for bail. It was submitted that the
Applicant was the person who had carried the assailant who fired at Hotel
Gazali, in his auto rickshaw. Post-concurrence, the Applicant had kept the
firearm in the dicky of his auto rickshaw. Therefore, it cannot be said that
the Applicant had no role in alleged occurrence. Reliance was placed on the
confessional statement of the Applicant recorded under Section 18 of the
M.C.O.C. Act, 1999 and the confessional statements of the co-accused.
8. Suffice to note the person who fired at Hotel Gazali namely
Mrityunjay Narayan Das @ Montu @ Bangali - (A2) has been released on
bail by order dated 22nd January 2024.
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9. This Court, inter-alia, observed as under:-
"13. Learned Counsel have banked upon an order passed by this Court on
28 February 2023, whereby co-accused Suresh Muttiah Poojari @
Suresh Anna came to be enlarged on bail on the count of long
incarceration. Learned Counsel assert, each of the applicants are also
entitled to same dispensation. While releasing the co-accused Suresh
Muttiah @ Suresh Anna (BA No.2196 of 2022) this Court in the order
dated 28 February 2023, referred to the judgments of the Supreme
Court in the case of Union of India V/s. K.A.Najeeb 1 and the orders
passed by this Court in National Investigation Agency V/s. Areeb Ejaz
Majeed2, Sachin Damodar Ekhatpure V/s. The State of Maharashtra 3
and observed as under :
"7. In the present case, the prosecution has proposed to examine 100
witnesses. Learned APP states that not all the witnesses will be
examined. Nonetheless, it is apparent that a large number of witnesses
will have to be examined. The applicant is in custody for more than 6
years. The charge has been framed on 30/09/2019 pursuant to which
not a single witness has been examined. It is not as if the applicant is
responsible for protracting the trial. There are criminal antecedents
reported against the applicant. The C.Rs. were registered in 1983 and
1991 under section 302 of IPC and gold smuggling case. The applicant
is acquitted in both cases. In respect of the C.R. which was registered in
2003 under the provisions of the Narcotic Drugs and Psychotropic
Substances Act, 1985, the applicant was convicted for 10 years. He has
undergone the conviction. The C.R. No.06 of 2017 was registered for
the offence punishable under sections 307, 120-B of IPC read with 25
of the Arms Act which is pending trial.
8. In the context of MCOC Act, one aspect that needs to be considered
is that prior to the registration of the present offence, there was no
commonality of the applicant committing any offence with the gang
leader. The offence of the year 2017 which is in common with the gang
leader committed after the registration of the present offence. Another
factor which is required to be taken into consideration is that as far as
the present offence is concerned, there is no direct role alleged against
the applicant. The role is that of a co-conspirator. Therefore, in my
opinion, the criminal antecedents should not be an impediment in
granting him bail."
14. Learned Counsel for the Applicants submitted that the aforesaid
reasons apply with equal force to each of the applicants. In fact, the
period of incarceration is now almost seven years.
1 (2021) 2 SCC 713
2 Cri. Appeal No.389 of 2020
3 Bail Application No.2830 of 2022
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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 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.4 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 read
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 anture of the crime, as was held in Kartar Singh
case, 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)6, Babba v/s. State of Maharashtra7 and
Umarmia v/s. State of Gujarat8 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
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that undertrials cannot indefinitely be detained pending trial. Ideally,
no person ought to suffer adverse 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."
10. For the aforesaid reasons, coupled with the role attributed to the
Applicant and the period of incarceration, which exceeds the period for
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which the above co-accused was incarcerated, I am inclined to exercise
descrition in favour of the Applicant.
11. The Court is not informed that the Applicant has any antecedents.
Hence, the following order:-
ORDER
(i) The Application stands allowed.
(ii) The Applicant Dhanpal Krushna Shettiyar 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.C.B. C.I.D. Anti Extortion Cell, Mumbai, every month i.e. on first Monday Pallavi 7/9 ::: Uploaded on - 03/08/2024 ::: Downloaded on - 10/08/2024 04:42:28 ::: 6-BA-3373-2023 (CR).doc 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.
(vi) The Applicant shall report to the jurisdictional police station where the Applicant would reside, on every alternate Sunday in 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 Pallavi 8/9 ::: Uploaded on - 03/08/2024 ::: Downloaded on - 10/08/2024 04:42:28 ::: 6-BA-3373-2023 (CR).doc 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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