Bombay High Court
Saddam Israr Khan @ Firdous vs The State Of Maharashtra on 30 October, 2018
Author: Prakash D. Naik
Bench: Prakash D. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO.190 OF 2018
Saddam Israr Khan @ Firdous
(At present Arthur Road Central Prison) .. Applicant
Vs.
State of Maharashtra .. Respondent
WITH
CRIMINAL BAIL APPLICATION NO.1180 OF 2018
Juber Ahmed @ Papa Wasiulla Shaikh
(At present Mumbai Central Prison) .. Applicant
Vs.
State of Maharashtra .. Respondent
......
Mr.Sudeep Pasbola a/w. Mr.Bhavesh Thakur & Mr.Karl
Rustomkhan i/b. Mr.Rahul Arote, Advocate for the Applicant in
Bail Application No.190 of 2018.
Mrs.Farhana Shah, Advocate for the Applicant in Bail Application
No.1180 of 2018.
Mr.A.R. Kapadnis, APP for the Respondent - State.
Mr.Dinesh M. Desai, ACP, Deonar Division, Mumbai, Present.
......
CORAM : PRAKASH D. NAIK, J.
DATED : OCTOBER 30, 2018.
P.C. :
The applicants are seeking bail in connection with
C.R.No.283 of 2017, registered with Shivaji Nagar Police Station,
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Mumbai. First Information Report was lodged on 25 th July, 2017
and the offences were registered under Sections 387, 427, 143,
144, 147 and 149 of Indian Penal Code ("IPC", for short).
Subsequently, the approval was obtained for application of the
provisions of Section 3(i)(ii), 3(2)(4) of the Maharashtra Control
of Organised Crime Act ("MCOC Act" for short). Subsequently,
sanction was obtained for applying the said provisions and on
completing the investigation, charge - sheet has been filed.
2 The prosecution case is that the complainant was
entrusted with the task of detection of theft of electricity by the
complainant company in the areas of Kurla to Vikhroli, Sakhinaka
to Chembur and Mankhurd and to take appropriate action against
such persons and upon detection, to submit his report to the
complainant with the police and also with the concerned
Regulatory Authorities. Since 2013, the complainant in order to
prevent the theft of electricity at Shivaji Nagar and adjoining
areas, has been experimenting several schemes for removal of
illegal and unauthorized wires and ensure that they are not
connected to the network of the electricity company. The
company had installed Feeder Pillar (Theft poof) to prevent theft
of electricity. On 6th July, 2017 at about 11:30 a.m., the
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complainant along with his associates proceeded to Chikalwadi
Road No.13, near Dumping Ground, Bainganwadi, Govandi,
Mumbai, for installation of Feeder Piller. While carrying out the
work, one unauthorized electricity distributor, namely,
Mohammed Akhtar Abdul Qayum Khan, his brother Anwar @
Mannu Patel Qayum Khan, Ayaz Khan @ Juber Khan @ Chuva,
Zuber @ Pappa and Ashraf Abrarali @ Bondu and four of their
associates came there and objected to the installation of Feeder
Pillars. All of them abused and manhandled the complainant and
his colleagues. Crowd had gathered at the place of incident. At
that time, Mohammed Akhtar Abdul Qayum Khan was armed with
chopper and threatened the complainant and his colleagues and
stated that if they install the Feeder Pillars, they would assault
them and they would break their hands and legs and would also
destroy the Feeder Pillar. Mohammed Akhtar Abdul Qayum Khan
further stated that by installing such Feeder Pillar their business
of theft of electricity would be in jeopardy and that if they wanted
to install the Feeder Pillar, they have to pay him an amount of
Rs.50,000/-, per month. It is further alleged that the complainant
had intimated about the said incident to the police and on getting
information that Mohammed Akhtar Abdul Qayum Khan would
follow him. The accused again threatened the complainant and
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others. The people who had gathered at the scene of offence ran
away apprehending danger. Mohammed Akhtar Abdul Qayum
Khan and his associates went away towards the direction of new
Bus Depot. Police had reached the spot. At that time the
complainant and his associates started installing the Feeder Pillar
and completed the work. On 7th July, 2017, the complainant and
his associates went to Indiranagar, Chikalwadi, Road No.14,
Govandi, Mumbai for installing Feeder Pillar, at that time
Mohammed Akhtar Abdul Qayum Khan, his brother and others
were found breaking the wires of Feeder Pillar with a cutter.
Crowd had gathered at the place of incident. On seeing the
complainant and his associates, the accused pointed out chopper
at them and warned them of dire consequences and also
threatened them that they would be killed. The people who had
gathered at the scene of offence ran away. The complainant then
informed the incident to the police. On 8 th July, 2017, the
complainant again visited the site along with his superiors and it
was noticed that the Feeder Pillars were completely destroyed
and two wires were unauthorizedly connected. It is stated that
the Feeder Pillars were destroyed in order to extract
unauthorized electricity of the company by illegal connection and
theft of electricity. The lives of the residents of the area were also
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in danger due to the act committed by the accused. Accordingly,
FIR was registered on 25th July, 2017.
3 During the course of investigation, statements of
several witnesses were recorded. On completing investigation,
charge - sheet has been filed against the applicants.
4 Learned counsel for the applicants submitted that the
applicants appearing in both these applications submitted that
the applicants are in custody from the date of arrest. The
investigation is completed and the charge - sheet has been filed.
It is submitted that the provisions of MCOC Act are not attracted
in the present case. The applicants were not the members of
organized crime syndicate which is requirement to invoke the
provisions of the MCOC Act. It is submitted that the learned
Judge while rejecting the application has failed to take into
consideration that the applicants were not involved in any
manner in the theft of electricity. It is the case of the prosecution
that the co-accused is the leader of organized crime syndicate
and there are more than one charge - sheet filed against him
before the preceding period of 10 years. There is no iota of
evidence that the applicants had any connection with the said
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accused. It is submitted that the role of destroying the Feeder
Pillar and threatening the complainant and associates is
attributed to the co-accused and not the accused. It is submitted
that the statements of employees of the complainant company
were recorded which were verbatim and stereo type. The
applicants' involvement was not shown with any manner by any
strong evidence. It is submitted that the powers under the MCOC
Act are misused by the police and although there is no evidence
to substantiate the charge under the provisions of the MCOC Act,
the charge-sheet has been filed against them under the
provisions of the said Act. It is submitted that the provisions of
the MCOC Act being drastic, the prosecution has required to
establish the said charge by cogent evidence. Merely on the basis
of the fact that some cases were registered against the main
accused, the applicants cannot be called upon to face the said
prosecution. The applicants were not involved in all those cases
which were registered against accused no.3, who is alleged to be
the gang leader. It is further submitted that while seeking
approval for invoking the provisions of MCOC Act, the
prosecution has not relied upon all those cases, and, therefore,
the prosecution cannot now rely upon the antecedents and cases
registered against the co-accused to establish the charge under
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the provisions of MCOC Act. It is submitted that there is no
evidence to proceed against the applicants under the provisions
of MCOC Act. The main charge of extortion and threat issued to
the complainant and his colleagues were attributed to the co-
accused. Learned counsel for the applicants relied upon the
decision of the Supreme Court in the case of State of
Maharashtra & Ors. Vs. Lalit Somdatta Nagpal & Anr. 1 and
Prasad Shrikant Purohit Vs. State of Maharashtra & Anr. 2
5 Per contra, learned APP submitted that there is
sufficient evidence against the applicants. The presence of the
applicants at the scene of offence is established from the
evidence of the witnesses. The applicants have participated in the
crime. It is submitted that the applicants are the members of
crime syndicate, which is headed by accused no.3. The approval
and sanction was obtained for applying the said provisions and on
the basis of the cases registered against the applicants and the
main accused, charge-sheet is filed. Statements of several
witnesses show the complicity of the applicants in the said crime.
It is further submitted that the applicant in Criminal Application
No.190 of 2018, has criminal antecedents. Several cases are
1 (2007) 4 SCC 171
2 (2015) 7 SCC 440
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registered against him. It is further submitted that as far as
applicant in B.A.No.1180 of 2018, is concerned, there are several
cases registered against him which are pending in the Court of
law. However, at the same time, learned counsel for the
applicants submitted that cases referred to in the affidavit in
reply filed by the prosecution were not part of the proceedings
and while obtaining approval, there was no reference of the said
cases. It is also submitted that the applicants are not accused in
the cases which were registered against accused no.3.
6 I have perused the charge - sheet which has been
annexed to this application. The incident, which is relied on by
the prosecution wherein the FIR was registered on 25 th July,
2017, is in relation to the threats issued to the complainant and
his associates and the damage caused to the Feeder Pillar of
electricity. The prosecution, therefore, proceeded on the basis
that the accused had threatened the complainant and his
associates while they were installing the Feeder Pillar. It is also
alleged that the main accused had demanded Rs.50,000/-, as
protection money as on account of the alleged installation of
Feeder Pillar, loss caused to him. The demand is not attributed to
the applicants. The prosecution thereafter proceeded on the basis
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that the case for invoking the provisions of MCOC are made out
against the applicants and submitted the proposal for obtaining
approval. On perusal of the approval and the sanction order, it is
apparent that the cases which are referred to by the prosecution
in the affidavit in reply, were not reflected in the said documents.
It is also pertinent to note that the applicants are not the co-
accused in relation to the offences of theft of electricity with the
main accused. To invoke the provisions of MCOC Act, there has
evidence to indicate that the accused are members of organized
crime syndicate. Considering the evidence collected by the
prosecution during the course of investigation, prima facie,
application of the provisions of MCOC Act, is debatable.
In accordance with the decision of the Supreme Court in the case
of Ranjeetsingh Sharma and the decision relied upon by the
counsel for the applicants, prima facie, the case for grant of bail
is made out. Applicants are in custody for more than one year.
Considering the aforesaid circumstances, and the nature of
evidence and in the light of the observations made hereinabove,
applicants are entitled to be released on bail.
7 Hence, I pass the following order:
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:: O R D E R ::
(i) Bail Application Nos.190 of 2018 and 1180 of 2018, are allowed;
(ii) Applicant in both the applications are directed to be released on bail in connection with C.R.No.283 of 2017, registered with Shivaji Nagar Police Station, Mumbai, which is subject matter of MCOC Special Case No.13 of 2017, pending in the Sessions Court, Mumbai, on their furnishing P.R. Bond in the sum of Rs.30,000/-, each, with one or more sureties in the like amount;
(iii) Applicants shall attend Deonar Police Station, Mumbai, on first Saturday of the month between 10:00 a.m. to 12:00 noon, till conclusion of the trial;
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(v) Bail Application Nos.190 of 2018 and 1180 of 2018, stand disposed of.
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