Bombay High Court
Vishnu Alias Bablu Vasant Gawali vs The State Of Maharashtra on 28 April, 2022
Author: C.V. Bhadang
Bench: C.V. Bhadang
BA_4503-21.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 4503 OF 2021
Vivek Mahadev Yadav ..Applicant
V/s.
The State of Maharashtra ..Respondent
WITH
INTERIM APPLICATION NO. 556 OF 2022
IN
CRIMINAL BAIL APPLICATION NO. 4503 OF 2021
Mr. Vishnu alias Bablu Gawali .. Applicant/Intervenor
IN THE MATTER BETWEEN:
Vivek Mahadev Yadav ..Applicant
V/s.
The State of Maharashtra ..Respondent
----
Mr. Siddhaarth Luthra, Senior Advocate a/w Mr. Sudeep Pasbola
with Aniket Nikam with Yash Giri with Ashish Satpute with
Piyush Toshniwal with Amit Icham i/b Vivek Arote for the
Applicant.
Mr. A.R. Kapadnis, APP for the Respondent/State.
Ms. Pooja Agarwal a/w Mr. Prakash Chavan for the intervenor.
----
CORAM : C.V. BHADANG, J.
RESERVED ON : 1 APRIL 2022
PRONOUNCED ON : 28 APRIL 2022
(Through Video Conferencing)
Sneha Chavan page 1 of 11
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P.C.
1. This is an application for bail. The Applicant (Accused No.
3) alongwith the co accused has been chargesheeted for the
offence punishable under Section 120-B and 115/302 read with
Section 34 of IPC, Section 25(3) of the Arms Act, Section 37(1)
and 135 of the Maharashtra Police Act and Section 3(1) (ii), 3(2)
and 3(4) of the Maharashtra Organised Crime Act 1999 ('MCOC
Act' for short) arising out of Crime No. 583/2021 of Police
Station Kondhawa, Pune.
2. The aforesaid crime is registered on the basis of FIR dated
14.7.2021 lodged by Police Naik Sushil Ghiwar. According to
the informant a secret information was received on 14.07.2021
that the co-accused Rajan Rajmani who was out on 'Covid bail'
had taken a contract for killing an unidentified person. It was
also revealed that the co-accused Rajan Rajmani was moving on
his Activa motorcycle in Lulla nagar area of Pune. Accordingly,
a trap was laid and the co-accused Rajan Rajmani along with
Ibrahim Shaikh were apprehended under Lulla nagar bridge at
about 15.45 hrs. The informant further claims that two country
made pistols with live cartridges were recovered from the co-
accused Rajan Rajmani and one country made pistol with live
cartridges was recovered from co-accused Ibhrahim Shaikh.
From the dicky of two wheeler of the accused Rajan Rajmani, a
cash of Rs.1,20,000/- was recovered.
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3. It appears that during the investigation, it was revealed that
the Applicant had given the contract and had engaged the
accused Rajan Rajmani and Ibrahim Shaikh for committing
murder of one Vishnu alias Bablu Gavali. This was on account
of the fact that there was previous enmity between the Applicant
and Bablu Gavali as Bablu Gavali had previously made an
attempt on the life of the Applicant.
4. During the course of the investigation, mobile handsets
were recovered from the co-accused Rajan Rajmani containing
whatsapp chats allegedly with the Applicant, who according to
the prosecution is referred to as 'VK' and 'VK New' in the
whatapp chats with the accused Rajan Rajmani disclosing the
conspiracy to kill Bablu Gavali. It was also revealed that the
accused Rajan Rajmani was previously convicted which was
subject matter of challenge in appeal before the High Court in
which Rajan Rajamani was seeking bail. It is the case of the
prosecution that the Applicant had assured Rajan Rajmani to
help him out financially in getting bail in the said criminal
appeal. Further according to the prosecution the Applicant and
Rajan Rajmani had met near High Court, Mumbai on 21.06.2021
which was part of the conspiracy to eliminate Bablu Gawali.
5. In this case, a proposal was made for grant of sanction to
invoke the provisions of the MCOC Act and the competent
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authority by an order dated 30.10.2021 had granted sanction
under section 23(2) of the said Act. In this case after
investigation, a chargesheet is filed.
6. I have heard the learned Senior Counsel for the Applicant
and the learned APP assisted by the learned counsel for the
intervenor Mr. Bablu Gawali. Perused record.
7. It is submitted by the learned Senior Counsel for the
Applicant that two mobile handsets namely (i) Samsung Galaxy
Note 20 ultra 5G model and (ii) Samsung Galaxy Note 9 were
recovered from the Applicant on his arrest on 21.07.2021.
According to the prosecution, the Applicant was using two
mobile numbers namely (i) 8888304444 (standing in the name
of Kumar Sable) and (ii) 9689444244 (standing in the name of
Sujata Jagtap). It is submitted that none of the mobile numbers
were registered in the name of the Applicant. It is submitted that
the reliance placed on the statements of these witnesses dated
04.09.2021 and 14.09.2021 is misplaced. It is submitted that the
sim cards relatable to these mobile numbers have not been
recovered from the Applicant at the time of his arrest. It is
pointed out that corresponding whatsapp chat has not been
recovered from two mobile handsets of the Applicant.
8. It is next submitted that the IMEI numbers of the two
mobile handsets (at page 255 of the application) do not match
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with the Call Data Records (CDR) of the mobile numbers as
referred to above. It is also submitted that reference to a person
by name "NG" cannot be said to be a reference to Bablu Gawali,
nor the reference to "VK" and "VK New" is relatable to the
Applicant. Thus, it is submitted that the reliance placed on the
whatsapp conversation does not show the complicity of the
Applicant in the alleged conspiracy. It is also submitted that the
tower location of the mobile of the complainant and one other
officer, who was the member of the raiding party, do not show
that these officers were present at Lulla Nagar on the date and
time of arrest of Rajan Rajmani. It is submitted that the
prosecution case even does not make out a case of preparation,
let alone an attempt or abetment of murder. It is submitted that
the invocation of the provisions of MCOC Act, is also not proper
as there are no, two pending chargesheets shown against the
Applicant as required by Section 2(d) of the MCOC Act. The
learned Senior Counsel for the Applicant has also taken
exception to the purported confession of the accused Rajan
Rajmani recorded under Section 18 of the MCOC Act.
9. It is submitted that the prosecution case is about the
Applicant having engaged the co-accused for eliminating Bablu
Gawali on account of previous enmity and there is no pecuniary
advantage involved, nor a streggle for supremacy. Thus,
invocation of the provisions of the MCOC Act, is misplaced.
Sneha Chavan page 5 of 11
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10. The learned APP assisted by the learned Counsel for the
informant has submitted that the whatsapp chat has been
recovered from the mobile handset of Rajan Rajmani wherein
the Applicant is referred to as "VK" and "VK New". It is
submitted that the mobile handsets have been sent for forensic
examination and the report is awaited. The learned APP has
referred to the statements of Kumar Sable and Sujata Jagtap,
who claimed that the said mobile numbers, as referred to above
were used by the Applicant. It is pointed out that the mobile
number standing in the name of Sujata Jagtap is linked to
Aadhar card of the Applicant, which has not been explained.
The learned APP has also referred to the statement of Mr.
Santosh Bhurate, who is a clerk attached to the office of the
Advocate representing the co-accused, Rajan Rajmani in the
pending appeal and the statement of Uttam Bangare, who is the
driver of the Applicant which shows that on 21.06.2021, the
Applicant and the co-accused Rajan Rajmani were together in
Mumbai.
11. It is submitted that the acquittal of the Applicant in about
5 out of 7 cases is not material inasmuch as none of these
acquittals are on merits. It is pointed out that crime No. 153 of
2014 is still pending against the Applicant, in which the
informant is the complainant. Reliance is placed on the decision
of this Court in Bharat Shantilala Shah v/s. State of
Sneha Chavan page 6 of 11
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Maharashtra1 in order to submit that the circumstances (the
acquittal or otherwise) which follow the charge are not material.
It is pointed out that the decision of this court has been
confirmed by the Supreme Court in State of Maharashtra v/s
Bharat Shantilal Shah2. It is submitted that word "other
advantage" as referred to in Section 2(1)(e) of the Act have to be
given an expansive meaning and cannot be restricted to the
object of gaining pecuniary benefits or undue economic
advantage alone.
12. I have considered the circumstances and the submissions
made.
13. In this case admittedly there is no incident of any actual
assault or even an attempt on the life of Bablu Gawali. The
offence alleged is essentially under Section 115 which is
abetment of offence punishable with death or imprisonment for
life, in a case where the offence is not committed. Under
Section 115, whoever abets the commission of an offence
punishable with death or imprisonment for life, shall, if that
offence be not committed, in consequence of the abetment and
where no express provision is made for the punishment of such
abetment, is punishable with imprisonment which may extend to
seven years with fine. Undoubtedly, the prosecution is also
alleging offence under the MCOC Act. It is necessary to note
1 2003 ALL MR (Cri) 1061
2 2008 AIR SCW 6431
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that there is no recovery of any arms from the possession of the
Applicant or at his instance. The prosecution is essentially
relying on the confession of the co-accused Rajan Rajmani,
recorded under Section 18 of the MCOC Act, in which the co-
accused claims that it was the Applicant who had engaged him
and the other co-accused for eliminating Bablu Gawali on
account of the previous enmity between the Applicant and Bablu
Gawali. Atleast prima facie it is not shown that the offence of
abetment under Section 115 of IPC was committed as a part of
the continuing unlawful activity of the Organised Crime
Syndicate of the Applicant. It can be seen that it is the
prosecution case that the incident of engaging the co-accused
Rajan Rajmani and others for eliminating Bablu Gawali was on
account of the previous personal enmity between the Applicant
and Bablu Gawali. It needs to be stressed that Bablu Gawali has
not been harmed and there was not even an attempt on his life.
It is in this context it is submitted on behalf of the Applicant that
the object of the crime was neither to gain any pecuniary
advantage nor to claim supremacy or for any other advantage
within the meaning of Section 2(1)(e) of the MCOC Act. It can
thus be seen that the first circumstance is in the nature of a
confessional statement by the co-accused.
14. Secondly, the prosecution is relying on the alleged
whatsapp messages exchanged between the Applicant and co-
accused Rajan Rajmani. It can be seen that in the whatsapp
Sneha Chavan page 8 of 11
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message according to the prosecution Bablu Gawali is referred
to as "NG" and the Applicant as "VK" and "VK new". Prima
facie there is no material to suggest any such reference. There
are two mobile handsets recovered from the Applicant having
IMEI number ending with 3517 and 4369. There are two mobile
numbers attributed to the Applicant ending with 0444 and 5244
which are standing in the name of Kumar Sable and Sujata
Jagtap. The statements of these witnesses show that these
numbers were used by the Applicant. It is true that the number
associated with Sujata Jagtap is linked to Aadhar card of the
Applicant. However, there is no recovery of any sim cards from
the Applicant. That apart it is pointed out on behalf of the
Applicant that IMEI numbers mentioned in the CDR of two
mobile numbers do not match, with the IMEI numbers of the
two mobile handsets recovered from the Applicant. It is
necessary to note that the mobile handsets have been sent for
forensic examination and the report is awaited.
15. The third circumstance is about the statement of Uttam
Bangare and Santosh Burte. Santoshh Burte is the clerk in the
office of the Advocate who is representing Rajan Rajmani in the
appeal and the Advocate had also represented the applicant
earlier. While, Uttam Bangare is the driver of the Applicant. In
my considered view, merely because the Applicant had
accompanied the co-accused Rajan Rajmani to the High Court
where the criminal appeal of Rajan Rajmani was pending, may
Sneha Chavan page 9 of 11
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not be sufficient at this stage to inter conspiracy. In the chart of
the offences registered against the accused (at page 51 of the
compilation) shows that out of eight offences, except the present
offence, no other offence is shown to be committed by the
Applicant along with the co-accused Rajan Rajmani and Ibrahim
Shaikh. In the circumstances, at this stage it is not necessary to
go into the question of effect of the acquittal and the reasons for
such acquittal from the previous offences.
16. In my considered view the requirement of Section 21(4)
are satisfied in this case and the Applicant can be released on
bail on conditions.
17. In the result, the following order is passed:
ORDER
(i) The Application is allowed.
(ii) The Applicant shall be released on bail on execution of a PR Bond in the sum of Rs. 50,000/- with one or two solvent sureties in the like amount to the satisfaction of the Special Court.
(iii) The Applicant shall undertake to remain present during the course of the trial unless exempted.
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(iv) The Applicant shall surrender his
passport, if any, if not already done, before the Special Court.
(v) The Applicant shall not directly or indirectly make any attempt to contact or to influence the prosecution witnesses or to otherwise tamper with the prosecution evidence.
(vi) In the event of breach of any of the conditions, the bail is liable to be cancelled.
(vii) The observations herein are of prima facie nature and the learned Sepcial Judge shall not be influenced by the same at the trial.
(vii) Bail bonds to be furnished before the learned Special Judge.
(viii) The interim application is also disposed of.
C.V. BHADANG, J.
Digitally signed by ANDREZAANDREZA PEREIRA PEREIRA Date: 2022.04.29 13:38:28 +05'30' Sneha Chavan page 11 of 11