Bombay High Court
Sandip Ram Phatak vs The State Of Maharashtra on 16 January, 2020
Author: Prakash D. Naik
Bench: Prakash D. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.2780 OF 2019
Sandip Ram Phatak .. Applicant
Vs.
State of Maharashtra .. Respondent
......
Mr.Aniket Nikam a/w. Mr.Piyush Toshnival, Mr.Amit Icham i/b.
Mr.Vivek N. Arote, Advocate for the Applicant.
Mrs.Veera Shinde, APP for the Respondent - State.
......
CORAM : PRAKASH D. NAIK, J.
DATED : JANUARY 16, 2020.
P.C. :
The applicant is arrested in connection with
C.R.No.188 of 2017, registered with Koregaon Park Police
Station, Pune, for the ofences punishable under Section 395 of
Indian Penal Code ("IPC", for short). Subsequently, Section 3(1)
(ii), 3(2), 3(4) of the Maharashtra Control of Organised Crime Act,
1999 ("MCOC Act", for short) were invoked.
2 According to the complainant, he was working in a
hotel as waiter. He has alleged that on 12 th November, 2017, after
the hotel was closed at about 12:00 midnight, 7 to 8 persons
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came to the hotel. Out of them, three persons stood near the stair
case and fve persons came near the counter. The complainant
and his father alleged that one of them gave his name as Sagar
Jogawade and stated that Nileshbhai had sent him to fnd out
whereabouts of Vivek Yadav. He further stated that the said
person was informed that the complainant had no knowledge
about the whereabouts of Vivek Yadav. At that time, the
complainant was assaulted with fst and kick blows on his face,
nose and eyes. He sustained bleeding injuries. Cash of
Rs.13,700/-, which was lying in the cash box was taken away by
the assailants. It is further alleged that the informant had
appraised the said incident to the owner of the hotel. It was latter
learnt from Vishal alias Chotu that the accused had came at the
hotel in three cars i.e. Jaguar, Safari and Innova. On completing
investigation, charge-sheet was fled. The prosecution sought
approval for applying the provision of MCOC Act. The approval
was granted and in pursuant to that investigation under the
provisions of MCOC Act was conducted. It was the case of the
prosecution that the accused were members of crime syndicate
headed by Nilesh Gaywal. The applicant, Nilesh Gaywal and other
accused were arrested. During the course of investigation,
confession statement of co-accused Ajay @ Rahul Bhola Gosavi
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was recorded under Section 18 of MCOC Act on 4 th January, 2019.
Statement of some witnesses were recorded in-camera. The
statements were also recorded under Section 164 of Cr.P.C.
3 Learned advocate for the applicant submitted that
there is no evidence to show involvement of the applicant in the
crime. The applicant has been falsely implicated in this case. The
alleged gangster who has headed the crime syndicate is granted
bail by this Court vide order dated 17th September, 2019 (Bail
Application No.37 of 2019). First informant has not named the
applicant as accused in the crime. However, subsequently, some
statements recorded in-camera and other statements vaguely
refers to the name of the applicant, as person who was
accompanying accused Nilesh. There is no test identifcation
parade conducted to identify that applicant is the person who was
involved in the crime.
4 Learned APP submitted that the involvement of the
applicant is disclosed in statements. It is submitted that the
confessional statement of Ajay @ Rahul Bhola Gosavi, was
recorded. He has referred involvement of the applicant. He was
amongst the co-accused. The prosecution has fled afidavit
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opposing grant of bail. The afidavit indicate registration of
several cases against accused no.1 Nilesh Gaywal.
5 As stated above, this Court has considered the
applicability of the provisions of MCOC Act and the nature of
evidence against the head of the crime syndicate, who has been
granted bail by this Court. The Court has noted the discrepancies
in the investigation conducted by the police and the nature of
evidence against him. This court has also considered the fact that
immediately after the incident, the complaint was lodged with the
police at the instance of the complainant, which was treated as
non-cognizable complaint. The said complaint do not refer to the
allegations in FIR. Thus, there is doubt about the version of the
complainant that he was assaulted and cash of Rs.13,700/-, was
taken away by the accused. There is no cogent evidence to
establish the fact that the applicant was accompanying the co-
accused in the hotel premises and that he had assaulted the
complainant and was instrumental in taking away cash. The
applicant was allegedly the member of crime syndicate headed by
Nilesh Gaywal, who has been granted bail by observing that
inspite of the rigor of Section 21(4) of MCOC Act, there was no
impediment to grant bail to him. On perusal of the charge-sheet,
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it can be seen that belatedly, the statement of two persons were
recorded in-camera, who referred to applicant was accompanying
main accused. The reason for recording the statement in-camera
was given as fear of the accused. However, it is pertinent to note
that statements of other witnesses recorded during the course of
investigation naming the co-accused. The confessional statement
although refers to the name of the applicant and others, it does
not corroborate the FIR. Considering the aforesaid
circumstances, the embargo under Section 21(4) of the MCOC
Act would not preclude this Court from granting bail to the
applicant.
6 Hence, I pass the following order:
:: O R D E R ::
(i) Bail Application No.2780 of 2019, is allowed;
(ii) Applicant is directed to be released on bail in connection with C.R.No.188 of 2017, registered with Koregaon Park Police Station, Pune, on his executing P.R. Bond in the sum of Rs.25,000/-, with one or more sureties in the like amount; ::: Uploaded on - 20/01/2020 ::: Downloaded on - 09/06/2020 17:59:42 :::
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(iii) Applicant shall report the Koregaon Park Police Station, Pune, once in a month on frst Saturday of the month between 10:00 a.m. to 12:00 noon, till further orders;
(iv) Bail Application stands disposed of.
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