Bombay High Court
Sheetal @ Vicky Nagnath More vs State Of Maharashtra on 26 August, 2024
Author: N. J. Jamadar
Bench: N. J. Jamadar
2024:BHC-AS:34475
BA-1770--2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 1770 OF 2023
Sheetal @ Vicky Nagnath More ...Applicant
Versus
State Of Maharashtra ...Respondent
Mr.Sudeep Pasbola, Senior Advocate a/w Mr.Swaraj Sable,
Mrunal Bhide, Mr.Uttam Singh Rathod and Rohin Chawhan i/by
Mr.Ayush Pasbola for Applicant.
Smt. Mahalaxmi Ganpathy, APP for the State.
Digitally signed
ETHAPE
by ETHAPE
DNYANESHWAR
DNYANESHWAR ASHOK
ASHOK Date:
2024.08.28
18:24:00 +0530
CORAM : N. J. JAMADAR, J.
DATE : 26th AUGUST 2024
PC.:
1. Heard the learned Counsel for the Applicant and the
learned APP for State.
2. The Applicant, who is arraigned in C.R. No. 244 of 2018,
registered with Pandharpur City Police Station, District Solapur,
for the offences punishable under Sections 120B, 302, 303, 201,
143, 147, 148 and 149 of the Indian Penal Code, 1860 ("the
Penal Code"), and Sections 3 and 4 read with Section 25 and
Section 5 read with Section 27 of the Arms Act, 1959 and
Section 135 of the Maharashtra Police Act, 1951 and Sections
3(1)(i), 3(1)(ii), 3(2) and 3(4) of the Maharashtra Control of
Organized Crime Act, 1999 ("MCOC Act") has preferred this
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application to enlarge him on bail.
3. Briefly stated the prosecution case runs as under:-
(a) Gopal Bajirao Ankushrao (A18), is the leader of an
Organized Crime Syndicate styled as "Sirji". Gopal
Ankushrao (A18) and his associates have created a reign of
terror in and around Pandharpur City. Grave offences of
murder, attempt to commit murder, kidnapping for ransom
extortion and causing grievous hurt are committed by the
members of the "Sirji" gang.
(b) Sandip Pawar (deceased), the son of the first
informant, was a Councillor of Pandharpur Municipal
Council. The deceased resisted illegal and unlawful
activities of Sirji gang. Resultantly, the clout of Gopal
(A18) and the "Sirji" gang was waning. Gopal (A18) and
the members of his gang, thus had a grudge against the
deceased.
(c) The prosecution alleges that actuated by diverse
motives to eliminate the deceased, on 16 th December 2017,
initially accused Gopal (A18), Shital @ Vikas @ Vicky
More (A5), the Applicant herein, Sandip Adhatrao (A6)
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and Sunil Wagh (A25) hatched a conspiracy to commit the
murder of the deceased. Dada Ghasani @ Piraji Lagade
(A20), Digambar @ Diga Janrao (A21), Shahrukh Shaikh
(A22), Eknath Shinde (A23) and Bablu Shinde (A27),
were drafted in as confederates in the said conspiracy.
Deadly weapons and masks were provided to the
assailants.
(d) In pursuance of the said conspiracy, on 18th March
2018, while the deceased was having tea at Hotel Shriram
Bhojnalaya, Station Road, Pandharpur, Akshay Surwase
(A1), Manoj Shirsikar (A3), Sandip Adhatrao (A6), Onkar
Jadhav (A11), Rais Khan (A14), Vishal Pawar (A16), Dada
@ Piraji Lagade (A20), Digambar Janrao (A21), Shahrukh
Shaikh (A22), Eknath Shinde (A23), Bablu (Absconding
A27), Sonu Pukle (A13) and Sagar @ Khandu Bansode
(A24), came thereat on the motorcycles. They barged into
Hotel Shriram Bhojnalaya. Sandip (A6), Onkar (A11),
Digambar (A21), Bablu (A27) were armed with pistols.
They shot at the deceased. Akshay (A1), Manoj (A3), Rais
Khan (A14), Dada @ Piraji (A20) and Sagar (A24) gave
blows by means of scythes on the head, face, hands, chest
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and ears of the deceased in quick succession.
4. The Applicant is alleged to be one of the main members of
the Organized Crime Syndicate "Sirji Gang". In the year 2010,
Vinayak Kamble was allegedly killed. The deceased Sandip
Pawar, Pradip @ Bhaiyya Pawar and others were arraigned as
accused in the said crime. Vinayak Kamble was the fast friend of
the Applicant and Sandip Adhatrao (A6). The Applicant and co-
accused Sandip Adhatrao (A6) were bent on taking revenge.
Thus, the deceased was killed in pursuance of the conspiracy.
5. The Applicant came to be arrested on 8 th June 2018.
Eventually, the provisions contained in MCOC Act, 1999, were
invoked and the Special Court has taken cognizance of the
offences punishable under MCOC Act, 1999.
6. Mr. Pasbola, the learned Senior Advocate for the Applicant,
submitted that the role attributed to the Applicant is that of
being a conspirator in the conspiracy to eliminate the deceased.
The Applicant did not participate in the assault. It is not also the
prosecution case that the Applicant was present at the time of
alleged occurrence. The Applicant is roped in primarily on the
basis of the confessional statement of the co-accused Sunil Wagh
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(A25) recorded under Section 18 of the MCOC Act. The other
circumstances of the Applicant and the co-accused having
attended a house warming function at the house of witness
Manik Mane, whose statement came to be recorded under
Section 164 of the Code, the discovery under Section 27 of the
Evidence Act and the CDR are not sturdy enough to sustain the
weight of the accusation of conspiracy.
7. Mr.Pasbola urged that the Applicant has been in custody
since more than six years. The prosecution has cited more than
100 witnesses. Charge has yet not been framed. It is extremely
unlikely that the trial can be commenced and concluded within a
reasonable period. Thus, on the count of long period of
incarceration, the Applicant deserves to be enlarged on bail.
8. Mrs.Mahalaxmi Ganapathy, the learned APP, strongly
opposed the prayer for bail. It was submitted that the Applicant
is the principal conspirator. Inviting the attention of the Court to
the antecedents of the Applicant including the prosecution for an
offence punishable under Section 302 of the IPC and the fact
that there is a commonality in the crimes registered against the
Applicant and leader of the Organized Crime Syndicate,
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Mrs.Ganapathy strenuously urged that a very strong prima facie
case of the Applicant being a prime member of the said
Organized Crime Syndicate has been made out. Mrs.Ganapathy
further submitted it emerges from the material on record,
including the confessional statement of the co-accused, that the
Applicant had hatched the plan to commit the murder of the
deceased, the Applicant had a strong motive, the Applicant had
hired the contract killers and also provided the arms and logistics
to them. Therefore, the Applicant does not deserve to be
enlarged on bail.
9. Mr.Pasbola further submitted that, in two out of the seven
crimes registered against the Applicant, the latter has been
acquitted, including in the prosecution arising out of C.R. No.95
of 2015 for the offences punishable under Sections 302, 201,
120-B, 143, 147 and 149 of the Indian Penal Code, 1860.
10. To begin with, it is necessary to note that prima facie there
is material to indicate that the Applicant is a member of the
Organized Crime Syndicate. Seven crimes were shown to have
been registered against the Applicant since the year 2010. Out
of those seven crimes, in C.R. No.51 of 2010 for the offences
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punishable under Sections 143, 147, 148, 332, 353, 427 of the
Indian Penal Code, 1860, the Applicant has been arraigned
alongwith the leader of the Organized Crime Syndicate, against
whom nine crimes are shown to have been registered.
11. Mr.Pasbola made an endevour to urge that in only one
crime, there is an element of commonality. I am afraid, the
aforesaid submission does not advance the cause of the
Applicant. It is trite that, it is not the requirement of law that two
charge-sheets for the offences punishable for more than three
years imprisonment must have been lodged against each
member of the Organized Crime Syndicate. If it could be shown
that the members of the Organized Crime Syndicate indulged in
continuing unlawful activity, singularly or jointly, either as
member of the Organized Crime Syndicate or behalf of such
syndicate, the offence of 'organized crime' as envisaged by
MCOC Act, 1999 can be said to have been made out. Continuing
unlawful activity is qua the Organized Crime Syndicate and not
each member. This position has been enunciated by the Supreme
Court in the case of Zakir Abdul Mirajkar Vs. State of
Maharashtra and Ors.1. What has to be established is the nexus
1 2022 SCC OnLine SC 1092
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between the individual accused and the organized crime
syndicate.
12. In the case at hand, prima facie, the antecedents of the
Applicant coupled with the material pressed into service against
the Applicant justifies an inference that the Applicant has
indulged in continuing unlawful activity.
13. The thrust of the submission of Mr. Pasbola was that, the
material arrayed against the Applicant is predominantly the
confessional statements of the co-accused recorded under
Section 18 of the MCOC Act, 1999. Those confessional
statements have been retracted. Apart from the confessional
statements, rest of the evidence pressed into service against the
Applicant, appears to be rather shaky.
14. Prima facie, the confessional statement of co-accused Sunil
Wagh (A25) squarely incriminates the Applicant. It indicates that
the Applicant was involved at every stage of the alleged
conspiracy. Sunil Wagh (A25) states about the motive the
Applicant had, the revenge the Applicant harbored, that the
Applicant was insisting for the assistance of the said accused in
killing the deceased, the Applicant and co-accused Sandip
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Adhatrao (A6) had delivered Rs.2 lakhs to him to hand over the
same to the contract killers from Pune; the Applicant had
accompanied Sunil Wagh (A25) to Pune and had meeting with
the contract killers and hatched the conspiracy, the Applicant had
promised to pay the balance amount after the work was
executed. In addition, there is a statement of witnesses recorded
under Section 164 of the Code, which indicates that the
Applicant, Gopal Ankushrao (A18), the leader of the gang, and
Sunil Wagh (A25) together attended the house warming function
of the said witness. The CDR further indicates that, the Applicant
had been in touch with the co-accused.
15. Mr. Pasbola made an endevour to urge that the CDR
indicates that the Applicant was in touch with Pawan Adhatrao
(A10) and Rupesh Survase (A8), who have been enlarged on
bail. The learned APP countered by canvasing a submission that
the Applicant was in touch with the other co-accused on the
phone numbers indicated in the CDR including co-accused Sunil
Wagh (A25) and Sandip Adhatrao (A6).
16. It is also necessary to note that, there are statements of
other co-accused recorded under Section 18 of the MCOC Act,
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which indicate that, post occurrence, the Applicant and the co-
accused Sandip Adhatrao (A6) had met them at Thane.
17. The aforesaid material is required to be appreciated in the
light of the antecedents of the Applicant. Therefore, at this stage,
the fact that the co-accused have retracted the confessional
statement, cannot justify an inference that the Applicant may not
be guilty of the offences for which he has been arraigned.
18. As noted above, the involvement of the Applicant is
evident right from the inception of the conspiracy to kill the
deceased. The Applicant had hired the contract killers. The
Applicant had allegedly provided money to the contract killer. If
this material is considered, in the light of the antecedents of the
Applicant, the submission on behalf of the Applicant that the
charge of conspiracy qua the Applicant does not appear to be
sustainable, does not merit countenance. In short, the Applicant
appears to be the principal confederate in the conspiracy.
19. The submission of Mr.Pasbola based on long incarceration
of the Applicant deserves consideration, at this stage. It is well
recognized that the long period of incarceration without a
reasonable prospect of expeditious conclusion of the trial,
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impairs the right to speedy trial, a facet of the fundamental right
guaranteed under Article 21 of the Constitution of India. It has
been held that the statutory restrictions in the matter of grant of
bail melt down in the face of such a long period of incarceration,
without trial (Union of India Vs. K. A. Najeeb2).
20. Nonetheless, the gravity of the offences and the role
attributed to the Applicant, in the light of the antecedents of the
Applicant, in the peculiar facts of the case, in my view, deserve to
be taken into account. The deceased was killed in a broad
daylight, at a public place, by hiring contract killers. Moreover,
in the backdrop of the antecedents of the Applicant it would be
hazardous to draw an inference that the Applicant may not
indulge in identical offences, if released on bail. There is an
imminent risk of tampering with the evidence, threatening the
witnesses and again indulging in offences of identical nature.
Therefore, this is not a fit case to exercise the discretion in
favour of the Applicant.
21. Hence the following order:
2 (2021) 3 SCC 713
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ORDER
(a) Application stands rejected.
(b) By way of abundant caution, it is clarified that the
observations made hereinabove are confined to the consideration of the entitlement for bail and they may not be construed as an expression of opinion on the guilt or otherwise of the Applicant and the co-accused and the trial Court shall not be influenced by any of the observations.
(N. J. JAMADAR, J.)
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