Bombay High Court
Dinesh Narayan Rai vs The State Of Maharashtra on 20 February, 2023
Author: M. S. Karnik
Bench: M. S. Karnik
Darshan Patil 27.ba.2416-22.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.2416 OF 2022
Dinesh Narayan Rai ..Applicant
VS.
The State of Maharashtra ..Respondent
------------
Senior Advocate Ashok P. Mundargi a/w Adv. N.M. Nadar a/w
Adv. Parth P. Shah i/b Sujit Lahoti and Associates for the
Applicant.
Ms. P. N. Dabholkar, APP for the State.
------------
CORAM : M. S. KARNIK, J.
DATE : FEBRUARY 20, 2023
P.C. :
1. Heard learned senior advocate for the applicant and
learned APP for the State.
2. This is an application for bail by the applicant- Dinesh
Narayan Rai in connection with C.R. No.I-196 of 2017 dated
05/10/2017, registered with Kasarvadavali Police Station,
under sections 4385, 387, 120-B and 34 of the Indian Penal
Code, 1860 ("IPC" for short) and sections 3(1)(ii), 3(2) and
3(4) of the Maharashtra Control of Organised Crime Act,
1999.
3. The applicant is the accused no. 2 and was arrested on
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06/10/2017 for the incident that happened on the same day.
So far as accused no. 1 Nitin Gopal Rai is concerned, on the
ground of long incarceration, the trial Court has released
him on bail by order dated 30/12/2022. The applicant's
application for bail was rejected by the Special Judge prior
to releasing of the accused no. 1 on bail. Learned senior
advocate submitted that on the ground of parity, the
present applicant i.e. accused no. 2 also deserves to be
released on bail.
4. An affidavit has been filed by the prosecution opposing
the application. Learned APP submitted that there are
criminal antecedents recorded against the applicant. The
antecedents are thus:
Sr. No. Police Station C.R. No. Status
1 DCB/CID Mumbai 40/2003 under Acquittal on-
Unit - 9 section 387, 34 24/12/2017
2 DCB/CID Mumbai 42/2003 under Acquittal on-
Unit - 9 section 387, 34 25/12/2017
3 Kasarwadvli Police II 30/17 u/s 3, 25 Court pending
Station, Thane (1b)(a) of Arm Act, C.C. No.
r/w 37(1), 135 of 1119/2017
Maharashtra Police
Act
5. As can be seen from the above table, two of the
antecedents are of the year 2003 and more than 10 years
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prior to the alleged incident. The third antecedent is in
respect of the very incident for which this offence was
registered when the applicant was found in possession of
the country-made pistol. It is material to reproduce the
order dated 30/12/2022, passed by the Special Judge
granting bail to the accused no. 1. The relevant portion of
the order reads thus:
"3] F.I.R. dated 05.10.2017 is filed by Anant Gurav
who at the relevant time was working as security
assistant with Roma Builders, Hiranandani Estate,
Ghodbunder Road, Thane. On 22.09.2017 he was
present in the office. Meeting of consultant Mahesh
Pamnani with other officers was going on. At about
4.00 p.m. Mahesh Pamnani received phone call on his
mobile from unknown number 9751762456. Mahesh
Pamnani directed the informant to receive the call.
The caller asked him in vernacular " तुम महेश पमना ना बो ल
रहे हे क्या ? म रवि पजा र बो ल रहे हे । आपका कान्स्ट्रक्शना का का म
बोहेतु जा रसे चल रहे हे । का म च ल रखना हे तु मझे १० कार ड़ च विहेए ।
नाहे ' वि(या तु म आ(म भेजाकार तुम्हे बो' (का से ठो का (' गा । पसे काबो और
काहे (ना हे याहे म बो (म. फो ना कारका बोतु ऊं'गा ।". The caller then
disconnected the call. The informant gave
information to Mahesh Pamnani and his other
colleagues about the call. The informant and his
colleagues on the basis of news published in
newspaper and electronic media were aware that
Ravi Poojari was gangster and was extorting money
from the builders and other businessmen. The
informant approached police and lodged F.I.R.
4] On 06.10.2017 during the course of
investigation the Anti Extortion Cell of Crime Branch,
Thane, received information that two sharp shooters
of gangster Ravi Poojari were coming to the office of
builder at Hiranandani Estate for the purpose of
firing. A trap was laid. Present accused and co-
accused Dinesh Rai were apprehended. They were
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found in possession of two pistols with 2 + 2 loaded
cartridges. On that basis crime no. 30/2017 was
registered at Kasar Vadavali police station. While
making interrogation with accused, their involvement
in the present crime was revealed. They disclosed
that they did recce at the office of the informant. It
was further revealed that Ravi Poojari through
absconding accused Vijay salvi asked the accused to
make firing at the office of the informant and for that
purpose, he agreed to pay Rs. 10 lakh.
5] The accused were found to be members of an
organized crime syndicate headed by Ravi Poojari.
Therefore, the provisions of MCOC Act were invoked.
Further investigation was carried out by Assistant
Commissioner of Police, Crime Branch, Thane City.
On getting sanction, charge-sheet came to be filed.
6] According to learned advocate for the accused,
he is behind the bars since 06.10.2017. Charge is
yet to be framed. He is not concerned with the
offence. There is no material to show his connection
with gangster Ravi Poojari. He has not committed any
other offence with gangster. He is not indulged in
continuing unlawful activity. Maximum punishment
for the offence punishable under sections 387 of I.P.C.
is upto 7 years. He is behind the bars since more
than 5 years. Considering all these aspects, she
prayed to release the accused on bail.
7] The prosecution has opposed the application.
According to the learned Special Public Prosecutor,
the accused on the instructions of Ravi Poojari
hatched conspiracy at navik Bar and Restaurant,
Andheri, Mumbai. There is evidence in the form of
recording of his conversation with gangster Ravi
Poojari. He has made number of international calls
from his mobile. C.D.Rs. Have been collected. Bail
application of co-accused Dinesh Rai has been
rejected by the Hon'ble High Court. Other two
offences have been registered against the accused at
Samtanagar police station and Juhu police station. He
is associated with gang leader Ravi Poojari against
whom 46 offences have been registered. In case, if
bail is granted, there is possibility of repetition of
similar type of offence. Considering all these
aspects, he prayed for rejection of the application.
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8] I have considered rival submissions.
9] It may be noted that present accused did not
make phone call to the informant or others. It is
alleged that the informant received phone call by a
person who introduced himself as Ravi Poojari. The
mobile number from which the call was received is
also mentioned in the F.I.R. According to learned
Special Public Prosecutor, VOIP call was made,
therefore, the caller could not be traced out.
10] There is memorandum panchanama of this
accused in pursuance of which the place where
conspiracy was hatched was discovered. In the
memorandum panchanama, the accused has given
information regarding details of the offence. But
such disclosure is not admissible under section 27 of
the Evidence Act.
11] C.D.R.s of mobile number of accused have been
collected. As per statement of Police Naik Nitin
Ovalekar, some international calls were made from
the mobile numbers of the accused. But there is no
material to show that the said calls were made to the
gang leader Ravi Poojari.
12] The confession under section 18 of the MCOC
Act of the accused was recorded. But admittedly,
same has been retracted immediately.
13] The crime chart shows that crime no. 270/2004
for the offence under section 279 and 338 of I.P.C. at
Samtanagar police station, crime No. 11/2015 under
section 420, 465, 468, 471 read with section 34 of
I.P.C. at Juhu police station and crime no. 30/2017
under section 3(25) of Arms Act at Kasar Vadavali
police station are registered against the accused.
Considering nature of offence registered at Samta
nagar police station and Huhu police station, it can
be said that they have no connection with the
offence under MCOC Act.
14] Admittedly, the extortion amount was not paid.
The applicability of provisions of section 387 of I.P.C.
is, therefore, doubtful.
15] The learned advocate for the accused has
submitted that he is entitled for bail only on the
ground of his long incarceration. In support of
submissions she has relied on the case of Anil
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Shankar Patil Vs. State of Maharashtra [Bail
Application No. 33/2022 decided on 29 th July,
2022] and Mrugank Kalwalar @ Mikky Vs. State
of Maharashtra [Bail appilcation No.
2388/2021]. In both cases, the accused along with
gangster D.K. rao were being prosecuted for the
offences punishable under sections 387, 504, 506 of
I.P.C. and under section 3{1)(ii), 3(2), 3(4) of MCOC
Act. The earlier regular bail applications of the
accused were rejected. The accused were behind the
bars from 31.01.2018. the Hon'ble Bombay High
Court by order dated 29th July, 2022 and 13th October,
2022 granted bail to the accused o the ground of
their long incarceration. The Hon'ble Bombay High
Court relied upon the decision of the Hon'ble
Supreme Court in the case of Union of India Vs.
K.A. Najeeb [(2021) 3 SCC 713].
16] The Hon'ble Bombay High Court in Anil Patil
case (supra) in para. 8 has made following
observations:
In the present case, as noted above the applicant
has been arrested on 31st January, 2018. The
prosecution framed charge against the applicant on
4th January, 2022 i.e. approximately after 4 years of
his arrest and till date not a single witness has been
examined by it. Applicant is behind bars without
trial for about 4 1/2 years. There are 65 witnesses
mentioned in the list of witnesses annexed to the
charge-sheet. Though the learned Special P.P.
submitted across the bar that the prosecution may
consider to examine 30 to 35 witnesses in totality
in support of its case, perusal of affidavit-in-reply
filed by Shri Savlaram Aagwane dated 20 th July,
2022 is silent on that aspect. The minimum
punishment prescribed for the offences alleged to
have been committed by the applicant under the
provisions of MCOCO Act is 5 years. The possibility
of conclusion of trial of the present case in near
future appears to be remote. Taking into
consideration the fact that applicant is in custody
for more than 4 1/2 years for an offence which is
punishable with minimum 5 years of imprisonment
and after applying the aforenoted principles of law,
the applicant can be enlarged on bail.
17] In Mrugank Kalwallkar Case, in para.9 the
Hon'le Bombay High Court has observed that:
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Since the settled position of law is to the effect,
that incarceration in custody for longer period
pending conclusion of trial is clearly violative of
right granted under Article 21 of the Constitution
which has been construed to include right to fair as
well as speedy trial, I deem it appropriate to release
the applicant on bail.
I must make it clear that I had chosen to secure
their liberty not on examining merits of the matter,
but on the ground of prolong incarceration, with the
trial likely to take considerable time for its
culmination.
18] It may be noted that in both the above referred
cases, the incarceration of accused was for about
four and half years. This period was considered as
long incarceration. In one of the cases, charge was
framed, 35 witnesses were to be examined.
Therefore, the bail was granted.
19] In the present case, as discussed above,
incarceration of the accused is for more than five
years. In this case also accused are being tried for
the same offence for which accused Anil Patil and
Mrugank Kalwallkar were tried. Charge is yet to be
framed. In view of huge pendency of old as well as
other under trial caes in this Court, there are no
immediate prospects of conclusions of trial. It would
not be proper to detain the accused for indefinite
period without trial.
20] The learned Special Public Prosecutor relied
upon the case of Mujahid Ibrahim Pathan vs.
State of Maharashtra [Criminal Application No.
3990/2014] wherein the Hon'ble Bombay High Court
held that there is no requirement of two charge-
sheets against every member of what is
contemplated is pendency of more than one charge-
sheet against the syndicate / gang involved in
continuing unlawful activity.
21] He also relied upon the case of Kavita
Lankesh Vs. State of Karnataka [Diary No.
13309/2021 (SC) dated 21st October, 2021]. The
Hon'ble Supreme Court has held that for being a
member of an organized crime syndicate, there is no
requirement of two charge-sheets.
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22] In my view the above decisions are of no avail
to the prosecution because there is no material to
connect present accused with the gang.
23] Considering all above aspects, the aspect of
long incarceration and the law laid down by the
Hon'ble Bombay High Court in Anil Patil Case and
Mrugank Kalwallkar Case, the accused is entitled
for bail."
(emphasis supplied)
6. On the ground of parity with the co-accused Nitin
Gopal Rai who has been released on bail by the Sessions
Court, even the present applicant can be granted bail. The
applicant is in custody since 06/10/20217. The trial is not
likely to conclude any time soon. Even the charge has not
been framed. The prosecution proposes to examine 77
witnesses or maybe little lesser. For the same reasons
mentioned by the trial Court while releasing the accused no.
1 on bail and on the ground of long incarceration, the
applicant can be released on bail. Hence, the following
order.
ORDER
(a) Applicant- Dinesh Narayan Rai in connection with C.R. No.I-196 of 2017, registered with Kasarvadavali Police Station, shall be released on bail, on his furnishing P.R. Bond of Rs.1,00,000/- with one or more sureties in the like amount;
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(b) The applicant shall not pressurize prosecution witnesses.
(c) The applicant shall attend the trial Court regularly.
(d) The applicant shall produce address proof of himself and his two blood relatives along with their mobile numbers and names of police stations in whose jurisdiction they are residing.
(e) The applicant shall attend the office of Assistant Commissioner of Police (Detection-II), Crime Branch, Thane, once in a month preferable on 1st Monday of every month at any time in between 10.00 a.m. to 1.00 p.m. till conclusion of the trial.
(f) The applicant shall surrender his passport with the office of Assistant Commissioner of Police (Detection-II), Crime Branch, Thane, if he has been issued with one.
(g) The applicant shall not leave India without permission of the trial Court.
7. The application stands disposed of.
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