Bombay High Court
Suraj Arun Pote vs State Of Maharashtra on 9 May, 2024
Author: N. J. Jamadar
Bench: N. J. Jamadar
2024:BHC-AS:21983
911-ba-4149-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.4149 OF 2023
Suraj Arun Pote ...Applicant
vs.
The State of Maharashtra ...Respondent
Mr. Aabad Ponda, Senior Advocate a/w. Mr. Sumit Tiwari, Mr. Jugal
Kanani and Mr. Amrish Salunke, for the Applicant.
Mr. Prashant Jadhav, APP, for the Respondent/State.
RESERVED ON : APRIL 17, 2024
PRONOUNCED ON : MAY 09, 2024
CORAM : N. J. JAMADAR, J.
P.C.:
1. Heard the learned counsel for the applicant and the learned
APP for the State.
2. This is an application for bail in MCOC Special Case No. 141 of
2022 arising out of FIR bearing C.R. No. 97 of 2021, registered with
Meghwadi police station for the offences punishable under sections
120-B, 307, 326, 188, 143, 144, 147, 148 and 149 of Indian Penal
Code, 1860 and section 3(1)(ii), 3(2) and 3(4) of the Maharashtra
Control of Organized Crime Act, 1999 (MCOCA).
3. The indictment against the applicant and the co-accused is
that the applicant is the leader of an organized crime syndicate. 17 th
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April, 2021 was the birth day of the first informant. The first
informant celebrated his birthday behind Pratap Nagar Bus stop,
Jogeshwari (E), Mumbai. Post midnight, while the first informant
was returning to his home, his friend Naresh Navge was sitting on a
chair near Gupta Flower Mart, Pratap Nagar. Somebody gave a call
to the first informant. The first informant thought that somebody
might have called him to wish him on his birthday. The first
informant turned back and noticed that co-accused Sandip Pawar
(A2) and Tushar Jagdale (A3) were approaching towards the first
informant. As there was a quarrel between the first informant and
Sandip Pawar (A2) and Tushar Jagdale (A3) sensing that Sandip
Pawar (A2) and Tushar Jagdale (A3) might be approaching to beat
the first informant, the latter tried to run away. Sandip Pawar (A2)
gave a blow by means of a sharp weapon on the face of the first
informant. Yet, the first informant succeeded to flee away.
Thereafter, Tushar Jagdale (A3) assaulted Naresh Navge by means
of a blunt side of a sharp weapon. The first informant alleged that
after the assault, the applicant and another person who were
waiting on scooters nearby, gave a signal to the assailants and
Sandip Pawar (A2) and Tushar Jagdale (A3) fled away on those
scooters.
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4. The applicant came to be arrested on 20th May, 2021. The
provisions contained in MCOCA were invoked. The competent
authority granted sanction under section 23(2) of the MCOCA on
18th January, 2023.
5. Mr. Ponda, learned senior counsel for the applicant submitted
that the co-accused Uday Salpekar(A4), Rahul Mhaske(A5) and
Rahul Dighe (A6) have been released on bail by this Court. While
releasing the co-accused on bail, this Court has adverted to the
manner in which the first informant and the witnesses have
developed the case to suit the prosecution, especially to implicate
the applicant. Mr. Ponda submitted that the applicant indeed has
antecedents. A number of crimes, as indicated in paragraph 59 of
the affidavit in reply, have been registered against the applicant.
However, the apparent inconsistency in the prosecution case qua
the applicant in the underlying offence in which the MCOCA is
invoked deserves to be taken into account. By invoking the
provisions contained in MCOCA, an endeavour has been made to
keep the applicant behind the bars only on the basis of the
antecedents. It was further submitted that the applicant has been
in custody since three years. It is unlikely that the trial can be
concluded within a reasonable period. Thus, having regard to the
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role attributed to the applicant, he deserves to be enlarged on bail.
6. In opposition to this, Mr. Jadhav, the learned APP submitted
that the presence of the applicant at the time of the alleged
occurrence has been specifically reported by the first informant.
There is material to indicate that the applicant instigated the co-
accused assailants. A number of witnesses have seen the applicant
exhorting the assailants to mount the assault. Moreover, the
applicant being a gang leader and as many as 14 cases have been
registered against the applicant, no case for grant of bail is made
out as the interdict contained in section 21 of the MCOCA comes
into play.
7. As regards the complicity of the applicant, it is imperative to
note that in the FIR, the first informant had alleged that after the
first informant was assaulted by Sandip Pawar (A2), he ran away.
The co-accused Tushar Jagdale (A3) assaulted Naresh. After
Sandip Pawar (A2) unleashed blow by means of sharp weapon, the
applicant and his unknown associates gave signal to Sandip Pawar
(A2) and Tushar Jagdale (A3) and the latter fled away on their
scooters. In the supplementary statements, the first informant
stated that while Sandip Pawar (A2) and Tushar Jagdale (A3) were
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charging on the first informant, he had seen the applicant exhorting
the assailants to kill the first informant. The applicant had allegedly
exhorted the co-accused Rahul Dighe (A6) to eliminate the first
informant and thereafter they fled away on the motor-cycle.
8. In the statement of Naresh who was also allegedly assaulted
by Tushar Jagdale (A3), which was recorded on 6 th July, 2021, it
was alleged that at the time of the alleged occurrence, the applicant
was armed with a hockey stick and co-accused Uday Salpekar(A4)
had a bamboo stick. Post arrest of the applicant on 21 st May, 2021,
the applicant allegedly made a disclosure statement leading to
recovery of the hockey stick.
9. Prima facie, the prosecution version progressively changed
from the applicant being an accessory after the fact, to being the
person who instigated Sandip Pawar (A2) and Tushar Jagdale (A3)
to assault the first informant, to that of being an assailant armed
with a hockey stick. However, the matter cannot be looked at from
this limited perspective of complicity in the underlying crime.
10. The thrust of the submission on behalf of the prosecution was
that the applicant is the gang leader of the organized crime
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syndicate. Thus, the interdict contained in section 21 of the MCOCA
comes into play with full force and vigor. Indeed, as many as 13
crimes, apart from the instant crime, have been registered against
the applicant since the year 2011 in which cognizance for the
offence punishable with imprisonment for three years or more has
been taken by the Courts.
11. In the affidavit in reply the prosecution has tabulated the
crimes registered against the applicant as under:-
Sr. Police Station C.R.Nos./ Sections Status
1 Dharavi 256/2011 U/s. 324, 323, 504,506 read Court
with 34 of IPC Pending
2 Meghwadi 81/2012 U/s.143, 144, 147, 148, 149, Court
326, 341 of IPC Pending
3 Dharavi 210/2012 U/s.307, 341, 506(ii), 212, Court
120-B of IPC r/w.3, 25, 27 of Arms Act Pending
4 Meghwadi 42/2014 U/s.307, 302, 452, 323, 120-B Appeal
of IPC pending in the
High Court
5 Meghwadi 20/2017 U/s.452, 324, 506(ii), 427, Court
Pending
6 Meghwadi 89/2017 U/s.323, 509, 506(ii) 34 of Court
IPC. Pending
7 Meghwadi 193/2017 U/s.324, 323, 504, 506(ii), Court
143, 147, 149 of IPC r/w. Sec. 142 of Pending
Maharashtra Police Act.
8 Meghwadi 323/2017 U/s.324, 323, 504, 506(ii), Court
34 of IPC r/w.142 of Maha. Police Act. Pending
9 Meghwadi 202/2018 U/s.324, 323, 506(ii) of IPC Court
Pending
10 Andheri 112/2019 U/s.353, 504, 323, 34 of IPC Court
Pending
11 Meghwadi 57/2020 U/s. 324, 323,504, 506(ii) of Court
IPC Pending
12 Meghwadi 37/2021 U/s.452, 387, 306, 141, 142, Court
144, 147, 149, 506(ii) of IPC r/w.37(1), Pending
135 of Maharashtra Police Act
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13 Meghwadi 97/2021, U/s.307, 326, 188, 143, 144, Court
147, 148, 149, 120-B of IPC r/w. 37(1) Pending
(a), 135 of Maharashtra Police Act,
sec.3(i)(ii), 3(2), 3(4) of MCOCA Act.
(Present offence)
14 Meghwadi 155/2021 U/s. 324, 504, 506(ii), 427, Court
141, 143, 144, 147, 148, 149 of IPC r/w. Pending
37(i)(a) read with 135 of Maharashtra
Police Act.
12. A bare perusal of the aforesaid chart would indicate that the
applicant has allegedly been indulging in serious offences with
alarming frequency. A continuous course of criminal activity is
prima facie evident. It is not the case that the crimes have been
registered against the applicant in the distinct past. Even post
registration of the offence, another crime was registered against the
applicant.
13. The submission on behalf of the applicant that in the
underlying offence, the applicant has no role, apart from the alleged
presence at the time of alleged occurrence, loses sight of the nature
of the continuing unlawful activity envisaged by section 2(1)(d) of
the MCOCA. It is not necessary that each and every member of the
organized crime syndicate should actually participate in the
continuing unlawful activity in each of crimes arrayed against the
organized crime syndicate. The members of the organized crime
syndicate may operate jointly or singly. They may operate in
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different modules. An individual member may indulge in an
organized crime as a member or on behalf of organized crime
syndicate. Thus, the MCOC Act has been enacted to make special
provisions for control of, and for copping with the, criminal activity
by organized crime syndicate or gang.
14. A useful reference in this context can be made to the
observations of Division Bench of this Court in the case of Govind
Sakharam Ubhe v. State of Maharashtra 1. In paragraph No. 37, it
has been held as under:-
37] But even otherwise, if all provisions are
read together we reach the same conclusion.
Section 2(1)(d) which defines continuing
unlawful activity' sets down a period of 10
years within which more than one charge-
sheet have to be filed. The members of the
crime syndicate operate either singly or
jointly in commission of organized crime.
They operate in different modules. A person
may be a part of the module which jointly
undertakes an organized crime or he may
singly as a member of the organized crime
syndicate or on behalf of such syndicate
undertake an organized crime. In both the
situations, the MCOCA can be applied. It is the
membership of organized crime syndicate
which makes a person liable under the
MCOCA. This is evident from section 3(4) of
the MCOCA which states that any person who
is a member of an organized crime syndicate
shall be punished with imprisonment for a
term which shall not be less than five years
but which may extend to imprisonment for
life and shall also be liable to fine, subject to a
minimum of fine of Rs.5 lakhs. The charge
1 2009 ALL MR (Cri) 1993
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under the MCOCA ropes in a person who as a
member of the organized crime syndicate
commits organized crime i.e. acts of extortion
by giving threats, etc. to gain economic
advantage or supremacy, as a member of the
crime syndicate singly or jointly. Charge is in
respect of unlawful activities of the organized
crime syndicate. Therefore, if within a period
of preceding ten years, one charge-sheet has
been filed in respect of organized crime
committed by the members of a particular
crime syndicate, the said charge-sheet can be
taken against a member of the said crime
syndicate for the purpose of application of the
MCOCA against him even if he is involved in
one case. The organized crime committed by
him will be a part of the continuing unlawful
activity of the organized crime syndicate.
What is important is the nexus or the link of
the person with organized crime syndicate.
The link with the organized crime syndicate is
the crux of the term continuing unlawful
activity. If this link is not established, that
person cannot be roped in.
(emphasis supplied)
15. In the case at hand while granting sanction under section
23(2) of the MCOCA, 1999, the competent authority has recorded
that the instant crime has been committed with the object of
gaining supremacy and other advantage by use of criminal force
and violence. Therefore, the fact that the applicant had not taken an
active part in the assault on the first informant pales in
significance. The role initially attributed by the first informant, in
the FIR, to the applicant of being an accessory after the fact, in the
context of the aforesaid continuous unlawful activity, prima facie
falls within the tentacles of the offences punishable under section
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3(1)(ii), 3(2) and 3(4) of the MCOCA.
16. In the aforesaid view of the matter, I am not inclined to accede
to the submissions on behalf of the applicant that no prima facie
case is made out against the applicant. The sheer weight of the
applicant's antecedents itself dis-entitle the applicant to claim
parity with the co-accused, who have been released on bail. The
appallation to the applicant of being a "gang leader" is prima facie
borne out by the crimes registered against the applicant. This
conduct of the applicant, as reflected from his antecedents, also
dissuades the Court from recording a finding that the applicant may
not indulge in identical offences, if released on bail.
17. I am, therefore, not inclined to release the applicant on bail.
Hence, the following order.
ORDER
1] The application stands rejected. 2] By way of abundant caution, it is clarified that the observations made hereinabove are confined for the purpose of determination of the entitlement for bail and they may not be construed as an expression of opinion on the guilt or Vishal Parekar ...10 ::: Uploaded on - 10/05/2024 ::: Downloaded on - 10/05/2024 22:50:06 ::: 911-ba-4149-2023.doc otherwise of the applicant and the co-accused the trial Court shall not be influenced by any of the observations made hereinabove.
Application disposed.
(N. J. JAMADAR, J.)
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