Bombay High Court
Kumar Krishan Pillai@Krishnan Kumar ... vs The State Of Maharashtra on 6 February, 2020
Author: Prakash D. Naik
Bench: Prakash D. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.1297 OF 2019
Kumar Krishnan Pillai @
Krishanan Kumarj Pillai @
Kumar Krishna Pillai @
Kumar Anna @ K. P. .. Applicant
Vs.
State of Maharashtra .. Respondent
......
Mr. Kuldeep S. Patil, Advocate for the Applicant.
Mrs. Veera Shinde, APP for the Respondent - State.
......
CORAM : PRAKASH D. NAIK, J.
DATED : 6th FEBRUARY, 2020.
P.C. :
The applicant is seeking bail in connection with
C.R.No.154 of 2019, registered with Vikhroli Police Station,
Mumbai, for the ofences punishable under Sections 307, 387,
506(Part II) read with Section 120-B of Indian Penal Code ("IPC",
for short) read with Sections 3, 25 and 27 of the Arms Act and
under Section 135 of Bombay Police Act. The applicant was
arrested on 28th June, 2016. On 7th December, 2009, provisions of
MCOC Act, were applied to the crime by adding Section 3(1)(ii),
3(2) and 3(4) of MCOC Act, 1999.
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2 The brief facts of the prosecution case is as under:
(a) Complainant Rameshbhai Shah is the Builder by
profession. He was having partnership with
Jayantibhai Shah. The ofice was situated at Sai
Shradha building "C" Wing, Vikhorli (West), Mumbai.
(b) In the month of February 2009, complainant received
threatening call for extortion from international
phone number on his mobile. On 25th August, 2009,
he received a threatening call from the mobile phone
number which was followed by the SMS on his mobile
from international number.
(c) The complainant and his partner were threatened of
their lives. The caller demanded cash of
Rs.50,00,000/-, from the complainant and threatened
to kill if he failed to deliver the same. He continuously
received threatening calls for extortion and messages
from organized crime syndicate members. The caller
claimed to be Kumar Pillai or Prasad Pujari. The
complainant made an application to police regarding
the threats received by him.
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(d) On 9th November, 2009, at about 17:00 hrs.,
complainant, his son and partner Jayantibhai Shah
were in the ofice at Vikhroli. Three employees of the
ofice were present in the adjoining room. One person
aged about 35 years entered the ofice. He was armed
with a fre arm which was tucked to his pant. He took
out fre arm in his right hand and entered the cabin
where complainant, his partner and son were sitting.
He pointed the fre arm towards them. The
complainant, his son and partner got scared and they
started shouting for help. The armed intruder opened
the fre from his fre arm but the gun misfred and
made a loud sound. Hence, the assailant ran out of
the cabin. The complainant immediately closed the
door of the cabin fearing that the armed intruder
might again resort to fring and started shouting for
help. Someone broke the glasspan of the window
from outside. Jayantibhai had sustained injuries due
to broken glass. He then contacted police control
room.
3 First Information Report ("FIR", for short) was lodged
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with Vikhroli police station vide C.R.No.286 of 2009, for the
ofences punishable under Sections 307, 384, 506(2), 427, 109 of
IPC. During the course of investigation, revolver and four live
cartridges were recovered at the instance of the accused.
Accused Sanjeev Shetty was arrested. Test Identifcation parade
("TI Parade", for short) was conducted. Accused no. 1 Sanjeev
Shetty was identifed by complainant and the other witnesses.
The confessional statement of accused no.1 Sanjeev Shetty,
accused no.2 Umesh Pujari and accused no.3 Mahesh Kalingan
were recorded. Statements of witnesses were recorded. Approval
was granted under Section 23(1) of MCOC Act to apply provisions
of Sections 3(1), 3(2), 3(4) of MCOC Act. The investigation was
conducted by DCB CID Crime Unit 7, Crime Branch. Sanction
under the provisions of MCOC Act was granted on 6 th February,
2010. Charge - sheet was submitted against the arrested
accused. The applicant and the co-accused were shown wanted.
Accused Vinod Khogale was arrested. The arrested accused was
tried before the MCOC Special Court vide Special Case No.2 of
2010 and Special Case No.7 of 2010. Accused no.1 Sanjeev
Shetty and accused Vinod Khogale were convicted and sentenced
to undergo 10 years rigorous imprisonment and Rs.5,00,000/-,
fne. Accused Mahesh Kalingan was sentenced to fve years
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rigorous imprisonment with Rs.5,00,000/- fne and accused
Umesh Pujari and Santosh Shinde were acquitted for insuficient
evidence against them. The applicants were declared proclaimed
ofenders. Pursuant to Red Corner Notice issued by the
authorities, and after the extradition proceedings, the applicant
was detained at Singapore and thereafter deported to India and
arrested in three diferent crimes including the present crime.
4 The applicant preferred an application for bail before
the Special Court for MCOC Sessions Court at Bombay. The said
application was rejected by order dated 7th November, 2017.
5 Learned advocate for the applicant submitted that
the applicant has been falsely implicated in this case. He is not
involved in the alleged crime. There is no incriminating material
seized, recovered or discovered at the instance of the applicant.
The charge - sheet do not contain legally admissible material to
corroborate the allegations against the applicant. There is no
material on record collected during investigation to show that the
applicant before the Court is same Kumar Pillai, who alleged to
have been involved in the crime. The applicant had left India
prior to the registration of ofences relied upon by the
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prosecution for invoking the provisions of MCOC Act and also
prior to the registration of ofences in which the applicant has
been extradited. The co-accused were tried before the Special
Court. During the trial, the learned Judge has relied upon the
evidence of P.W.1 i.e. complainant and P.W.No.10, son of the
complainant, wherein they have produced before the Court,
compact disk containing copy of recording of conversation of
applicant after the day of incident. The trial Court in the
judgment has mentioned that the provisions of Section 65(b) of
the Evidence Act, in terms of recording of conversation in the
compact disk have been departed but still it has believed the
evidence of P.W.9 and P.W.10 that the calls for extortion were
made by the applicant. The confession of accused nos.1, 2 and 3
was not part of the same trial in which the applicant was charged.
Hence, this confession is not admissible in evidence. It is
submitted that according to Section 18(1) of the MCOC Act, the
confession shall be admissible in the trial of such person or co-
accused, abettor or conspirator provided that the co-accused,
abettor or conspirator is charged and tried in the same case
together with the accused. It is submitted that the applicant was
not tried with the co-accused, and, hence, the said confessional
statement cannot be used against the applicant. The prosecution
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has failed to prove the truthfulness of the confession of accused
nos.1, 2 and 3. The accused nos.3 and 4 were acquitted on
account of the infrmity in the evidence. The evidence of
confessions of accused nos.1,2 and 3 cannot be used for the trial
of the applicant as they were already charged and tried in their
respective cases. It is further submitted that the only evidence
against the applicant is that of voice sample. The said voice
sample cannot be admitted as evidence, as prosecution has failed
to prove the authenticity of the said voice sample. The applicant
has not committed any ofence. The provisions of MCOC Act are
not applicable against him.
6 Learned counsel for the applicant relied upon the
decision of the Hon'ble Supreme Court in the case of Hardeep
Singh Sohal and Others Vs. State of Punjab through CBI (2004 11
SC cases 612). The said decision was relied upon in support of
the submission that the confession recorded under is admissible
against the co-accused only if the confessor is charged and tried
in the same case together with the co-accused.
7 The prosecution has fled afidavit in reply opposing
the application for bail. Learned APP submitted that the applicant
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is gang leader of the crime syndicate known as Kumar Pillai gang.
He was a fugitive gangster wanted in serious ofences like
murder, attempt to commit murder, extortion and also under the
provisions of MCOC Act. He had criminal conspiracy to extort
money from the complainant and his partner. He had operated
from abroad and communicated to his associates through mobile
phones and other means of communication for want of their
unlawful activities. As per the instructions of the applicant, the
convicted accused Sanjeev Shetty had barged into ofice of
complainant on 9th November, 2009 and fred at the complainant
and witnesses with revolver arranged by the applicant. Prior to
the incident, the applicant had threatened the complainant twice
to pay the extortion amount of Rs.50,00,000/-, for beneft of their
organized crime syndicate. Their conversation was recorded by
the complainant. After arrest the voice sample of the applicant
was taken and was played before the complainant who had
identifed the same as the voice of caller were threatened him in
the name of the applicant for ransom of Rs.50,00,000/-. The
applicant has provided the weapon and money to his associate
before commission of crime. It is submitted that the confession of
accused no.1 Sanjeev Shetty was recorded under Section 18 of
the MCOC Act on 17th December, 2009 and it is revealed that the
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applicant and the co-accused had committed the present crime.
Three cases were registered against the applicant at Vikhroli
police station and Kanjurmar Police Station. The applicant is a
gang leader and was extradited from Singapore and was arrested
in this case on 28th June, 2016. The applicant is the head of
organized crime syndicate. The submission that the confession of
the co-accused cannot be relied upon against the applicant as
submitted by him cannot be accepted. The applicant was wanted
in the same case. He was absconding and was declared
proclaimed ofender. His case was separated and after he was
arrested by fling supplementary charge - sheet, the applicant
was prosecuted. The decision relied upon by the applicant is not
applicable in the present case.
8 I have perused the charge - sheet and the other
documents annexed to the application. The FIR was registered in
2009. The complainant has alleged that he had received
threatening call of extortion from the international number.
According to prosecution, the caller had demanded cash of
Rs.50,00,000/-, from the complainant and threatened him that he
would be killed if the amount is not delivered. Thereafter, the
complainant continuously received threatening call of extortion
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as well as the SMS. It is alleged that the caller claimed to be
either Kumar Pillai or Prasad Pujari. The complainant then made
application to the police. On 9th November, 2009, one person had
entered into the ofice of the complainant and threatened him and
the others and fred at them. There was misfring. Subsequently,
accused no.1 and the other accused were arrested. The
confessional statement of the accused nos.1, 2 and accused no.3
were recorded during the course of investigation. Accused no.1
Sanjeev Shetty has given detailed account as to how the
conspiracy was hatched, how instructions were received by him,
the arm was received by him along with the cartridges and how
he was instrumental in attacking the complainant and others. He
has also referred to the role played by the applicant in the crime.
The tenor of his confession clearly indicates that he was acting at
the instance of the applicant. It is pertinent to note that the
applicant was not available and proclamation was issued against
him. In pursuant to the Red Corner Notice, he was detained at
Singapore, and, thereafter, he was deported to India.
Subsequently, supplementary charge-sheet fled against him.
Prior to that the co-accused who were arrested were prosecuted
before the Special Court and some of them were convicted. The
prosecution is relying upon several pieces of evidence showing
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the complicity of the applicant in the crime. The applicant is
allegedly the gang leader. Two other cases are pending against
the applicant. Although, the applicant was not personally present
at the time of the incident, the case of the prosecution prima
facie, is that the incident had occurred at the instance of the
applicant. From the statement of complainant, it can be gathered
that prior to the incident he received phone calls of extortion in
the name of Kumar Pillai. There were number of calls. There is
material in the form of conversation between the victim and the
applicant. The evidence speaks that on 9 th November, 2009 and
10th November, 2009, the phone calls received by him and
recorded by him in his mobile phone and compact disk were
prepared and produced before the police. The report submitted
by Directorate of Forensic Science Laboratories with regards to
the voice supports the prosecution case. The decision relied upon
by the applicant is not applicable in the present case. The
applicant is yet to be tried. The prosecution must be given an
opportunity to led evidence. Prima face, case is made out against
the applicant. The contention of the learned counsel for the
applicant is that the confession of the co-accused cannot be used
against the present applicant, as the applicant and the co-accused
whose confessions were recorded, were not tried together in the
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same case. In the decision of the Hon'ble Supreme Court
delivered in the case of Hardeep Singh (Supra), the facts would
indicate that the accused Balvinder Singh had shot at the victims
and caused him fatal injuries. subsequently victim died. Accused
Balvinder Singh was arrested and he made a voluntary confession
having committed the murder of the victim. He was prosecuted
for the ofences under the TADA Act. Based on the confession, the
appellants in the Appeal before the Hon'ble Supreme Court were
arrested by the police and the investigation was completed. They
were tried before the TADA Special Court and were convicted, by
relying upon the confession of Balvinder Singh. Thus, the
prosecution case was based on the confession of Balvinder Singh,
who was the assailant in the crime. The appellants therein who
were tried before the Special Court and on conviction preferred
an Appeal before the Apex Court, were involved on the basis of
the confessional statement. Balvinder Singh could not be
prosecuted for the ofences as he was absconding and declared
proclaimed ofender. In this circumstance, the Hon'ble Supreme
Court has considered the fact that in the absence of the trial of
the co-accused Balvinder Singh, his confession cannot be relied
upon. Thus, it is apparent that the accused, who had made
confession was not tried before the Court, while the co-accused
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were prosecuted and convicted on the basis of his confession. In
the present case, the applicant was absconding. The co-accused
were arrested. They were tried before the Court. Their
confessional statements were tested before the Court and on the
basis of the confession, subsequently the arrested accused were
convicted. Thus, the facts of the case before the Apex Court and
the present case are completely diferent. Apart from that it is
pertinent to note that the applicant is yet to be tried and apart
from confession, there are several other circumstances and the
evidence which supports the prosecution case and which is
incriminating against the applicant. There is suficient evidence
to invoke the provisions of MCOC Act against the applicant. In
the judgment dated 29th September, 2009, passed by the learned
MCOC Court, in respect to co-accused, the trial Court had
observed that the material on record had proved that wanted
accused Kumar Pillai and Prasad Pujari are running organized
crime syndicate for the purpose of pecuniary beneft of his
members. It is in respect of said syndicates, more than two
charge - sheets for similar ofence of extortion having
punishment of more than three years have fled in past ten years
period.
In the light of nature of evidence against the
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applicant and considering the embargo under Section 21(4) of the
MCOC Act, no case for grant of bail is made out.
Hence, I pass the following order:
:: O R D E R ::
(i) Bail Application No.1297 of 2019, is rejected and stands disposed of accordingly.
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