Bombay High Court
Mustafa Shaikh Mohammad vs The State Of Maharashtra on 27 August, 2019
Author: V.K.Jadhav
Bench: V.K.Jadhav
1 14-BA.752-19.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
14 BAIL APPLICATION NO.752 OF 2019
MUSTAFA SHAIKH MOHAMMAD
VERSUS
THE STATE OF MAHARASHTRA
...
Mr. H.F. Pawar, Advocate for Applicant
Mr. R.V. Dasalkar, APP for Respondent-State
...
CORAM : V.K.JADHAV, J.
DATE : 27.08.2019
PER COURT :-
1. The applicant is seeking regular bail in connection with
Crime No.95 of 2018 registered with Amalner Police Station,
District Jalgaon for the offences punishable under Sections
302, 201 of the IPC, under Section 3/25 of the Indian Arms
Act, under Section 37(1)(3)/135 of Bombay Police Act and
under Sections 3(1)(i), 3(1)(ii), 3(2) and 3(4) of Maharashtra
Control of Organized Crime Act, 1999 (herein after referred to
as 'MCOC Act'). His application with similar prayer in Special
(MCOC Act) Case No.9 of 2018 below Exh.2 came to be
rejected by the learned Special Judge MCOCA, Nashik.
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2. The learned counsel for the applicant submits that, the
prosecution case entirely rests upon the circumstantial
evidence and there is no direct evidence in this case. It has
been alleged in the complaint that the petrol pump owner
deceased Ali Azgar Hakimoddin Bohari returned to the petrol
pump at about 10.30 p.m. on 03.05.2018, counted the cash
and about 11.30 p.m. left the petrol pump on his motorcycle
along with the cash bag. However, immediately after some
time, deceased Ali Azgar Hakimoddin Bohari returned to the
petrol pump on the same motorcycle. He sat on a platform of
the petrol pump. He was in frightened condition. He had
informed to the informant and the other persons working on
the petrol pump that somebody had tried to snatch the cash
bag and further reported them that those persons ran away
from the spot. Deceased Ali Azgar also informed to the
informant that out of those persons, somebody has fired a
bullet from the fire arm. The informant has brought drinking
water and at that time deceased Ali Azgar collapsed. He was
immediately taken to the hospital where he was declared dead.
The learned counsel submits that the allegations as against the
present applicant are only to the extent that he was seen on
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the petrol pump doing reki and secondly his name has been
disclosed in the memorandum panchnama recorded under
Section 27 of the Evidence Act at the instance of original
accused No.1 namely Kailas Navghare. The learned counsel
submits that applicant had been to the petrol pump to fill up
the petrol in his motorcycle and even if the same is recorded in
the CCTV footage, however, nothing can be concluded on its
basis. There is one more witness who has seen the present
applicant in the locality, however, even though said witness
Altaf Shaikh has stated in his police statement that other co-
accused persons ran away from the spot after bullet firing, he
has not stated so as against the applicant. The learned counsel
submits that the Court is also required to consider the chain of
circumstantial evidence against the accused persons and so
also consider the material collected during the investigation
whether the same is sufficient to justify a judgment of
conviction. In the instant case, there is no connecting evidence
against the applicant. His antecedents are also clear. So far as
the another crime is concerned, there is also no evidence
against the applicant. The applicant has a permanent
residence. He has placed certain documents on record to
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substantiate the same. Investigating Officer has verified his
claim about the permanent residence and found it to be
correct. The applicant may be released on bail.
3. The learned counsel for the applicant in order to
substantiate his submissions so far as the provision under
Section 21(4) of the MCOC Act placed his reliance on
following two cases :
(i) Ranjitsing Brahmajeetsing Sharma Vs. State
of Maharashtra & another ; AIR 2005 Supreme
Court 2277, and
(ii) Nikesh Tarachand Shah Vs. Union of India
and another ; 2017 DGLS (SC) 1178.
4. The learned APP has strongly resisted the application on
the ground that the applicant was seen in the CCTV footage.
In that CCTV footage, on the date of incident, at 11.00 p.m.,
the applicant had been to the petrol pump and he was found
suspiciously looking here and there. The learned APP submits
that the applicant had been to the petrol pump for doing reki.
It is the organized gang and they have preplanned to rob the
owner of the petrol pump. The original co-accused Kailas was
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armed with the country-made pistol and he had fired the bullet
by using the said pistol and in consequence thereof deceased
Ali Azgar died. Though during the course of investigation,
confessional statement of any of the accused persons has not
been recorded, however, in the memorandum panchnama
prepared under Section 27 of the Evidence Act the original
accused No.1 - Kailas has disclosed the name of the present
applicant as participated in the Crime. The learned APP
submits that there is one more witness namely Shaikh Altaf
who has stated about the presence of the applicant near the
spot when the other co-accused persons ran away. The learned
APP submits that prima facie there is a sufficient evidence. In
terms of the provisions of Section 21(4) of the MCOC Act,
recording of satisfaction on both the aspects mentioned in
clause 'a' and 'b' of sub Section 4 of Section 21 is sine qua non
for granting bail under MCOC Act. Further a reasonable belief
provided in Section 21 as to the existence of such facts and
circumstances sufficient to justify the satisfaction that the
accused is not guilty of an alleged offence is necessary. The
learned APP submits that the applicant is a member of
organized criminal gang. He may not be released on bail.
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5. On going through the allegations made in the complaint
and on perusal of the charge-sheet, it appears that the
prosecution case entirely rests upon circumstantial evidence
and there is no direct evidence in this case. Even in terms of
Section 21(4) of MCOC Act if the Bail Application is to be
considered, the Court is required to consider the question as to
whether the circumstantial evidence is such whereby all the
links in the chain are complete. The Hon'ble Supreme Court in
a case of Ranjitsing Brahmajeetsing Sharma (referred supra)
has made the said observations. In this case in paragraph
Nos.55, 56, 57 Supreme court has made the following
observations :
"55. The wording of Section 21(4), in our opinion, does
not lead to the conclusion that the Court must arrive at a
positive finding that the applicant for bail has not committed
an offence under the Act. If such a construction is placed, the
court intending to grant bail must arrive at a finding that the
applicant has not committed such an offence. In such an
event, it will be impossible for the prosecution to obtain a
judgment of conviction of the applicant. Such cannot be the
intention of the Legislature. Section 21(4) of MCOCA,
therefore, must be construed reasonably. It must be so
construed that the Court is able to maintain a delicate
balance between a judgment of acquittal and conviction and
an order granting bail much before commencement of trial.
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Similarly, the Court will be required to record a finding as to
the possibility of his committing a crime after grant of bail.
However, such an offence in future must be an offence under
the Act and not any other offence. Since it is difficult to
predict the future conduct of an accused, the court must
necessarily consider this aspect of the matter having regard to
the antecedents of the accused, his propensities and the nature
and manner in which he is alleged to have committed the
offence.
56. 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
privilege of bail.
57. 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."
6. So far as Nikesh Tarachand Shaha (referred supra) is
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concerned, the observations made in the Ranjitsing Sharma's
case are reproduced therein.
7. In the light of the observations made by the Supreme
Court in the aforesaid cases if the present case is considered, it
appears that in the given set of evidence there are less chances
of conviction of the applicant. Though in the CCTV footage,
the presence of the applicant is marked at the petrol pump,
however, as per the panchnama of the said CCTV footage
drawn by the Investigating Officer it appears that applicant
was merely seen along with his motorcycle on the petrol pump
while filling the petrol in his motorcycle and at that time he
was looking here and there. Furthermore, one another witness
namely Shaikh Altaf has stated about the presence of the
applicant. It is pertinent that the Shaikh Altaf has witnessed
that the other co-accused persons ran away from the spot after
the bullet fired, however, he has merely seen the present
applicant stood in the square. So far as the evidence in the
form of memorandum panchnama under Section 27 of the
Evidence Act is concerned, the disclosure about name of the
present applicant would not be sufficient to record his
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conviction. Thus, considering the entire aspect of the case and
since the applicant has a fixed place of residence and he is
easily available for trial, I am inclined to release the applicant
on bail with certain conditions. Hence, following order :
ORDER
1. The application is hereby allowed.
2. The applicant MUSTAFA SHAIKH MOHAMMAD in connection with Crime No.95 of 2018 registered with Amalner Police Station, District Jalgaon for the offences punishable under Sections 302, 201 of the IPC, under Section 3/25 of the Indian Arms Act, under Section 37(1)(3)/135 of Bombay Police Act and under Sections 3(1)(i), 3(1)(ii), 3(2) and 3(4) of MCOC Act, be released on bail on furnishing P.B. of Rs.25,000/- (Rupees Twenty Five Thousand only) with one solvent surety of the like amount on the following conditions :-
a] The applicant shall not tamper with the prosecution evidence in any manner.
b] The applicant shall attend the concerned police station once in a week i.e. on every Sunday between 8.00 to 11.00 a.m. for a period of six months and thereafter on every first Sunday of a ::: Uploaded on - 28/08/2019 ::: Downloaded on - 29/08/2019 02:42:49 ::: 10 14-BA.752-19.odt month at the same time for a further period of three months.
3. Application is accordingly disposed off.
(V.K.JADHAV, J.) ...
vmk/-
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