Bombay High Court
Thawariya Toliya Bilwal vs The State Of Maharashtra on 17 February, 2021
Equivalent citations: AIRONLINE 2021 BOM 82
Author: Revati Mohite Dere
Bench: Revati Mohite Dere
Digitally
signed by
Shagufta
Shagufta Q. Pathan
Q. 1-ba-2112-2017.doc
Date:
Pathan 2021.02.18
18:13:12
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 2112 OF 2017
Thawariya Toliya Bilwal ...Applicant
Versus
The State of Maharashtra ...Respondent
Mr. Ashok Kumar Dubey a/w Mr. Anil Kumar Pandey for the Applicant
Mr. A.R. Patil, A.P.P for the Respondent-State
CORAM : REVATI MOHITE DERE, J.
WEDNESDAY, 17th FEBRUARY 2021
P.C. :
1 Heard learned counsel for the parties.
2 By this application, the applicant seeks his enlargement on bail
in connection with C.R. No. 297 of 2015 registered with the Talegaon
Dabhade Police Station, Pune, for the alleged offences punishable under
Sections 395, 397, 307 of the Indian Penal Code; under Sections 3(25) (27)
of the Arms Act and under Sections 3(1)(ii), 3(4) of the Maharashtra
Control of Organized Crime Act (`MCOC Act').
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3 Learned counsel for the applicant submits that there is no
material on record to connect the applicant with the alleged offence. He
submits that merely because there are cases registered as against the
applicant in Madhya Pradesh, will not be a ground to deny the applicant
bail, in the absence of any cogent and incriminating material to connect the
applicant with the aforesaid alleged offence. He submits that neither the
applicant has been identified in the test identification parade, which was
held by the police, nor is there any recovery at the instance of the applicant.
4 Learned A.P.P opposes the application. Learned A.P.P has filed
an affidavit of Ganpatrao Sadashiv Madgulkar, Deputy Superintendent of
Police, Dehuroad Division, Pune (Rural), Pune, to oppose the application.
Learned A.P.P is, however, unable to point out any incriminating material
as against the applicant in the present C.R.
5 Perused the papers. According to the complainant-Manoj
Palresha, he is doing the business of goldsmith and is running a shop by the
name "Kamla Jewellers" for the last 20 years. He has alleged that the
incident took place on 2nd October 2015 at about 7:00 p.m. According to
the complainant, about 10-12 persons entered his shop; that the said
persons were armed with iron rods; that the said persons started assaulting
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the complainant and 4 others working in the said shop; that the said persons
also broke the glass of the showcase and looted jewellery worth about Rs.
25 lacs. It is alleged that while the said accused were fleeing, police
reached the spot, as a result of which, one of the accused fired a bullet in
the direction of the police and the others pelted stones on the police. None
of the accused were arrested on the spot. The complainant-Manoj lodged
an FIR as against 10-12 unknown persons. During the course of
investigation, the accused were arrested in front of Saundarya Hotel, Indori,
Taluka Mawal, District Pune on 3rd October 2015. The applicant was
present with the other accused. The arrest panchanama dated 3 rd October
2015 shows that all the accused were arrested from the said spot, including
the driver of the vehicle i.e. Kamlesh Rathod, also an accused.
6 Admittedly, the applicant has not been identified by any of the
witnesses. There is no recovery of any weapon/article at the instance of the
applicant. Similarly, no Section 18 statement of the applicant has been
recorded. As far as co-accused-Kamlesh Rathod, the driver of the vehicle
in which the applicant travelled with others is concerned, his statement
under Section 18 of the MCOC Act was recorded. In the said statement,
Kamlesh Rathod has not named the applicant. Co-accused-Kamlesh
Rathod was enlarged on bail on 6th July 2017, having regard to the fact that
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he had no knowledge that dacoity was being planned or was going to be
committed by the accused and more particularly, Kamlesh Rathod's vehicle
was hired for consideration for travelling by the co-accused. Infact, the
confessional statement of Kamlesh Rathod reflected that he had no
knowledge that dacoity was planned by the co-accused.
7 No doubt, the applicant has antecedents i.e. cases registered
against him in Madhya Pradesh. However, in the present case, prima facie,
there is no material to show the applicant's complicity. Learned A.P.P is
also unable to point out any material to connect the applicant to the alleged
crime, except the fact that he was arrested with all other co-accused. The
applicant is in custody since 3rd October 2015 and till date, not a single
witness has been examined. It is informed that the prosecution intends to
examine 30 witnesses.
8 Considering the aforesaid material qua the applicant, the bar of
Section 21(4) of the MCOC Act will not apply. Accordingly, the applicant
deserves to be enlarged on bail on the following terms and conditions :
ORDER
(i) The applicant be enlarged on bail, on executing PR Bond in the sum of Rs. 50,000/- with one or two sureties in the like amount; SQ Pathan 4/6
1-ba-2112-2017.doc
(ii) The applicant shall attend the concerned Police Station on the first Monday of every month between 10:00 a.m. to 12:00 noon, till the conclusion of the trial;
(iii) The applicant shall not leave Pune District, without the permission of the trial Court, till the conclusion of the trial;
(iv) The applicant shall not tamper the evidence or attempt to influence or contact the complainant, witnesses or any person concerned with the case;
(v) The applicant shall inform his latest place of residence and mobile contact number and/or change of residence or mobile details, if any, from time to time to the Court seized of the matter and to the Investigating Officer of the concerned Police Station;
(vi) The applicant to cooperate with the conduct of the trial and attend the Court on every date;
(vii) The applicant to file an undertaking with regard to clauses (ii) to (vi) in the trial Court, within two weeks of his release; SQ Pathan 5/6
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(viii) If there is a breach of any of the aforesaid conditions, the prosecution shall be at liberty to seek cancellation of the applicant's bail.
9 The application is allowed in the aforesaid terms and is accordingly disposed of.
10 It is made clear that the observations made herein are prima facie, and the trial Court shall decide the case on its own merits, in accordance with law, uninfluenced by the observations made in this order. 11 All concerned to act on the authenticated copy of this order.
REVATI MOHITE DERE, J.
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