Bombay High Court
Nikhil Chandrakant Rokade vs State Of Maharashtra on 18 April, 2024
Author: Bharati Dangre
Bench: Bharati Dangre
2024:BHC-AS:19594
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Digitally signed by MANDIRA
MANDIRA MILIND
SALGAONKAR
MILIND SALGAONKAR
Date: 2024.04.29 23:52:09
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO.554 OF 2024
Nikhil Chandrakant Rokade & Ors. .. Applicants
Versus
The State of Maharashtra .. Respondent
...
Mr.Prashant Pandey with Mr.Dinesh Jadhwani and Mr.Irfan
Unwala i/b W3 Legal LLP for the Applicants.
Smt.M.H.Mhatre, A.P.P. for the State/Respondent.
...
CORAM: BHARATI DANGRE, J.
DATED : 18th APRIL, 2024
P.C:-
1. The three Applicants seek their release on bail in
connection with C.R.No.61 of 2020 registered with Kurar
Police Station, which has invoked the offences punishable
under Sections 307, 387, 504, 506(2) and 120-B read with
Section 34 of the Indian Penal Code (for short, "the IPC"),
Sections 3, 25 and 27 of the Arms Act alongwith Sections 3(1)
(ii), 3(2) and 3(4) of the Maharashtra Control of Organised
Crime Act, 1999 (for short, "the MCOCA")
On completion of investigation, the charge-sheet is filed
and the Applicants claim parity with co-accused Nos.2, 3 and 5
and it is their specific case that the role attributed to the
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present Applicants is similar to those, who are released on
bail.
2. Heard Advocate Prashant Pandey for the Applicants and
Smt.Mhatre, the learned A.P.P. for the State.
The orders releasing the co-accused on bail are also filed
alongwith the Application and I have perused the same.
3. As far as the present Applicants are concerned, the
Special Judge under the MCOCA, by order dated 25/07/2023,
rejected their applications on the ground of their prima facie
involvement and complicity in the organised crime and on the
observation that they were co-accused in previously registered
offences, which is reflected in the copy of the charge-sheet in
Sessions Case No.717 of 2011 and also on the basis that the
sanction order reflect the commonality between the previously
registered offences and the present crime.
4. The three Applicants before me are charge-sheeted as
Accused Nos.1, 9 and 10 and the learned A.P.P. Mrs.Mhatre
would strongly oppose the release of the Applicants on bail,
since they face accusations in a serious offence as MCOCA. She
would place reliance upon the confessional statement of one
Santosh Shivnarayan Sharma @ Bhaiyya, who has referred to
the Applicants as the participants in the organised crime
syndicate.
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5. The subject F.I.R. was registered on 01/02/2020 on the
say of the Complainant, who reported that as a worker in the
shop, he opened the shop at 9.30 a.m. and after returning on
having lunch, when he was present alongwith his colleagues in
the shop and when he opened the window of the shop on the
front side of the counter, one unknown person came wearing a
blue colour full sleeved shirt and blue colour jeans with his face
covered. He immediately fired one shot from his handgun in
his direction, resulting into the glass of the wooden cupboard
by his side, being shattered and some pieces of the glass also
hit him. He ran inside to save his life and the people in the
surrounding area, on hearing the gun shot assembled and the
shop was closed, as everyone was scared. When the shop was
opened, he saw one white colour envelope lying inside the shop,
on which in Hindi language, it was scribbled as, "Ke office par
letter pochana" and on other side, it was scribed with, "Uday
Pathak, Rahul Mandri, Vikki Pise, Pathak Gang".
When he opened the envelope, he would read the words
scribed in Hindi on the first page, "Pathak Gang Panch Karor
Chahi hain nahi to marega." On the second page, it was scribed
as, "Jab bhai maarata hain to darad kitana hota hain wo samaj
me aa jayega tuje Udhay Pathak, Vikki Pise, Rahul Mandri.".
On the third page, it was written that, "Jo logo ne mere bhai to
marwane me the aur jo marane me the sab marenge abhi to
chaalu hua hai aur khatam mai karunga Uday Pathak gang. On
the fourth page, it was written that, "Aur mujhe agar paisa nahi
mila to dono me se ek jarur marega jaldi". The fifth page
contains the word, "Pathak gang Panch karor chaahiye nahi to
marega". On sixth and seventh page, it was written that, "Aur
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tujhe kya laga tujhe Uday Pathak bhul gaya", "panch karor tere
aur tere bhai ki jaan ki kimat mujhe chayiye". On eighth page it
was scribed that, "Jin logo ne mere bhai ko mara tu unko
chhudane ke liye poaisa kharcha kiya".
6. The Complainant specifically stated that the person, who
fired, was present at the distance of 200 meters from the shop
and he would be able to identify him, if seen again.
This resulted in registration of the subject C.R., invoking
the offences under the IPC to which the offences punishable
under the MCOCA were also added. Amongst those who were
charge-sheeted, Mangesh Pandey, Accused No.2 and Jiten
Garsiya @ Jitlya, Accused No.3 were released on bail, whereas
co-accused no.5-Pravin Baviskar was granted default bail.
The three Applicants are alleged to be the members of a
crime syndicate, headed by gang leader Uday Pathak, who was
aided and assisted by Babu Chintale, another gang leader and
it is alleged that Uday Pathak, who was incarcerated, with the
aid of his associates; Babu Chintale, Santosh Sharma, Nikhil
Rokade, Suraj Sagare, Vikas @ Mangesh Pande, Jitu @ Jitlya
Garsiya and Pravin @ Pary Prakash Baviskar, had engaged into
an unlawful activity of receiving hafta, by creating reign of
terror and with the help of Santosh Sharma, arms and
ammunition were procured. It is also the case of the
prosecution that accused Uday Pathak alongwith Babu
Chintale had hatched the conspiracy, by organising various
meetings, and by involving the other co-accused and after
conducting recce, the arms were procured and Babu Chintale
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had even fired the arm in the unauthorised parking area which
was under his control.
The prosecution collected material to establish that the
arrested accused, Babu Dhundappa (Arjun) Chintale has more
than three offences in his credit, being registered in last ten
years.
7. In the backdrop of the aforesaid material, prior approval
was granted by the Additional Commissioner of Police under
Section 23(1)(a) of the MCOCA, in the backdrop that Babu
Chintale, a close and active associate of Uday Pathak was
arrested in 2011, under the charge of brutal murder and after
he was released from jail in 2014, he started his unlawful
activity on behalf of Uday Pathak and committed an offence of
robbery alongwith other associates, which resulted in an
offence being registered in Kurar Police Station. He was
arrested and the charge-sheet was submitted of which, the
cognizance is taken by the Court.
Babu Chintale committed another offence of robbery in
the year 2019, where the charge-sheet is filed. It is alleged that
all the offences registered against the leader and the crime
syndicate members are cognizable offences, with the
punishment prescribed of three years and more.
The incident which resulted in invocation of MCOCA is
alleged to have been committed by the members of the
organised crime syndicate on 01/02/2020, by Santosh
Sharma, on instructions of gang leader Uday Pathak and with
active assistance of Babu Chintale and other accused persons,
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by firing a firearm for the purpose of extortion. It was
repeated at two distinct places and Santosh Sharma threw the
written chits in the envelope, which contained the name of
Uday Pathak Gang and also indicated the extortion amount.
Santosh Sharma, the arrested accused, confessed that he
had fired on the instructions of Uday Pathak and threw the
chits handed over to him by Uday Pathak.
It was alleged by the ACP, that Uday Pathak, despite
being incarcerated, was running the organised crime
syndicate, with the aid of Babu Chintale and the other co-
accused, which include the present Applicants.
8. On 07/07/2020, sanction was granted by the
Commissioner of Police, Brihanmumbai under Section 23(2) of
the MCOCA against all the accused persons, including the
Applicants.
9. The learned counsel Mr.Pandey has called in question the
invocation of provisions of the MCOCA and he would submit
that the provisions of the said enactment cannot be applied to
the offence, which was registered with Kurar Police Station.
He would submit that the term, 'organised crime syndicate' is
assigned a specific meaning in the statute and, since, the
incident resulting into registration of the subject C.R. did not
fall within the definition of 'organised crime', the invocation of
provisions of the Act, is unsustainable. Apart from this, it is
the submission of Mr.Pandey that it is for more than three
years that the Applicants have been incarcerated and there is
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no chance of the trial being completed at the earliest, the
further incarceration of the Applicants, awaiting the trial is
unwarranted.
Mr.Pandey would also place reliance upon the order
passed by me in the case of Mangesh Pandey and Jiten
Garsiya.
10. It is the case of the prosecution that the gang leader
Uday Pathak alongwith Babu Chintale was operating as a
syndicate and they were behind the two incidents, one of
which resulted in lodging of the complaint by Mr.Mukesh
Sharma, when he received an envelope demanding the amount
allegedly from Uday Pathak Gang, threatening that if the
amount of Rs.Five crore, as demanded, is not paid, he would be
killed.
The CCTV footage from both the spots was taken into
custody and it is revealed that it is Santosh, co-accused, who
opened the fire in both the incidents. As per the prosecution,
he belongs to Uday Pathak Gang and upon his arrest, it was
disclosed that the present Applicants were also involved in
committing the offence. Admittedly, the revolver and empty
cartridges and live cartridges were recovered from Santosh,
who fired at the spot. When, I repeatedly inquired with the
learned A.P.P. as to what is the material in the charge-sheet,
which reveal their involvement, she referred to the
confessional statement of co-accused Santosh Sharma @
Bhaiya, who was arrested and the said statement is placed on
record alongwith the affidavit filed by the State.
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In the said statement, it is disclosed that he was working
as a security guard in Mumbai for last six months and used to
go to village for cultivation purpose. In the village, he was
invited by one acquaintance, who informed that Shardaprasad
Pathak was the resident of their village and his son Uday
Pathak is in jail for the charge of murder. He was, therefore,
associated with the family of Uday Pathak and one month
prior, he went to see Uday Pathak outside Court and he was
introduced to Nikhil Rokade.
On being informed that he was to visit village in the next
month, he was asked to get a revolver alongwith live
cartridges and he was told that Nikhil would get him
Rs.30,000/-. Thereafter, when he went to the village, he
purchased the revolver and six cartridges for Rs.23,000/- and
he even fired one round to ascertain, whether it is working. In
December 2019, when he came back to Mumbai, he concealed
the same in the house of Uday Pathak.
In January 2020, when he met Uday Pathak in the
Court, he informed about the task being accomplished and at
that time, according to him, Suraj and Nikhil came to see him
and Uday asked him to give the revolver to Suraj. It is Uday
Pathak, who informed him that Suraj had fired and, therefore,
he asked him to take weapon in his possession and Suraj
disclosed that he had fired in the air and, therefore, he
(Santosh) retained the weapon and one day, when he took the
weapon for showing it to Babu Chintale, who was running the
unauthorised parking, he also fired one round in the air.
Uday, upon being disclosed about the firing, was petrified
and scolded him. He was asked to meet him in Arthur Road
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jail, and when he attended, two envelopes were handed over to
him and he was asked to fire two rounds in 'Anand Medical'
and 'Rokdiya Traders' within a gap of two hours. He acted
accordingly, fired rounds and also dropped the envelopes on
the spots.
11. Perusal of the aforesaid statement would reveal a
reference to Nikhil, but there is reference of Applicant No.2-
Vivekanand @ Vicky and Applicant No.3-Rahul Mandri.
When I specifically asked the learned A.P.P. to point out
any material against Applicant Nos.2 and 3, she conceded that
there is no other material.
12. In order to establish that the Applicants are the
associates of the gang leader, what is relied upon is the
confessional statement of Nikhil, but this statement has been
retracted and apart from the said confessional statement,
there is no material in the entire charge-sheet to establish the
link between the Applicant and the gang leader.
Alongwith the affidavit, a list of offences registered
against gang leader Uday Pathak and the active gang leader
Babu Chintale is annexed. As far as Applicant No.1-Nikhil is
concerned, he is shown to be involved in two offences
registered with Tulinj Police Station, but pertinent to note that
there is no commonality, as regards the said CRs with either of
the gang leaders, except the present C.R.No.61 of 2020
registered with Kurar Police Station.
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However, in the case of Applicant No.2-Vivekanand, there
is a commonality in form of C.R.No.129 of 2011 in which Uday
Pathak as well as Babu Chintale are also the co-accused
alongwith Applicant No.3-Rahul Mandri.
13. It is the case of the prosecution that Uday Pathak is the
original gang leader of Pathak Gang and, since, 2011 he is in
jail in connection with this C.R. and, thereafter, he had left the
leadership of the gang to Babu Chintale, who is operating as
per his instructions in Kurar area. Undisputedly, there are
sixteen offences registered against Uday Pathak and nine
offences against Babu Chintale, but unless and until it is
established that the Applicants are the members of the
organised crime syndicate, which term is assigned a definite
connotation under the MCOCA, prima facie, they cannot be
held guilty of committing the offence under the MCOCA. There
is no evidence in form of any active participation of the
present Applicants and as far as Applicant No.1 is concerned, a
confessional statement is relied upon, where his association
with Santosh Sharma has surfaced, as he was preset when
Santosh Sharma was handed over the two envelopes, white
and brown respectively, by telling him, "do jagah dana fodna
hai aur udhar chitthi dalna hai". But, in any case, the rounds
were fired by Santosh Sharma and not by Applicant No.1.
Another incriminating circumstance, which is sought to be
pressed into service is the part of the confessional statement of
Nikhil, when he states that Uday, the gang leader was
conversing with his relatives from his mobile, when Santosh
call was incoming but was kept on waiting and when after the
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conversation is over, he informed Uday about the said phone
call, he was asked to call him and Santosh told Uday that the
work is accomplished and Udaybhai responded, by saying, ' Jai
Mata Di'.
14. It is the submission of Mr.Pandey that the confessional
statement is retracted by Nikhil. Assuming that the said
statement is not retracted and is acted upon, it will be a matter
of trial to determine, whether merely by receiving phone call
of the co-accused and for assisting a contact to be established
with the gang leader, will Nikhil could be said to be a member
of organised crime syndicate. As far as the other two co-
applicants are concerned, admittedly there is no material in
the charge-sheet and even the confessional statement of co-
accused, does not contain any reference to them.
In the wake of the above, since the Applicants are
incarcerated since the year 2020, I deem it appropriate to
secure their release on bail, subject to the following
conditions :-
: ORDER :
(a) Application is allowed.
(b) Applicant No.1-Nikhil Chandrakant Rokade,
Applicant No.2-Vivekanand Sudhir Pise @ Vicky and Applicant No.3-Rahul Pandurang Mandri @ Rahul Mantri shall be released on bail in connection with C.R.No.61 of 2020 registered with Kurar Police Station, on furnishing P.R. Bond to the extent of Rs.25,000/- each, with one or two sureties in the like amount.
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(c) The Applicants shall mark their attendance
before the concerned police station on first Monday of every trimester between 3.00 p.m. to 5.00 p.m.
(d) The Applicants shall attend the trial on regular basis.
(e) The Applicants shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing the facts to Court or any Police Officer. The applicant shall not tamper with evidence.
(f) On being released on bail, the Applicants shall furnish their contact number and residential address to the Investigating Officer and shall keep him updated, in case there is any change.
( SMT. BHARATI DANGRE, J.) M.M.Salgaonkar ::: Uploaded on - 29/04/2024 ::: Downloaded on - 09/05/2024 15:55:53 :::