Bombay High Court
Rahul Gopinath Kalyankar vs State Of Maharashtra on 5 February, 2024
Author: N. J. Jamadar
Bench: N. J. Jamadar
2024:BHC-AS:6341
[email protected]
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.396 OF 2023
WITH
INTERIM APPLICATION NO.1712 OF 2023
Rahul Gopinath Kalyankar ...Applicant
vs.
The State of Maharashtra ...Respondent
WITH
BAIL APPLICATION NO.1012 OF 2023
Deepak Baburao Chavan ...Applicant
vs.
The State of Maharashtra ...Respondent
Mr. R.G. Gadgil a/w. Mr. Swapnesh Salvi, Mr. Ummehani
Tambawala, for the Applicant in BA No. 396 of 2023.
Mr. Kamlesh Gujar, for the Applicant in BA No. 1012 of 2023.
Mr. S.R. Agarkar, APP, for the Respondent/State.
Mr. Narayan Dalvi, PSI, Vileparle police station.
CORAM : N. J. JAMADAR, J.
DATE : FEBRUARY 5, 2024
P.C.:
1. The applicants, who are arraigned in MCOC Special Case No. 8
of 2016 arising out of C.R. No. 337 of 2015 registered with Vileparle
police station for the offences punishable under sections 395, 363,
341, 412, 468, 201, 170 of Indian Penal Code, 1860; section 3 read
with 25 of Arms Act and sections 3(1)(ii), 3(2) and 3(4) of the
Maharashtra Control of Organised Crime Act, 1999 (MCOC Act,
1999), have preferred these applications for bail.
Vishal Parekar ...1
::: Uploaded on - 08/02/2024 ::: Downloaded on - 24/02/2024 10:09:11 :::
[email protected]
2. Rahul Kalyankar, the applicant in BA No. 396 of 2023, is
alleged to be the leader of an organized crime syndicate. Deepak
Chavan, the applicant in BA No. 1012 of 2023 and the co-accused
are the members of the said organized crime syndicate. The
applicant Rahul had been indulging in continuing unlawful
activities and has thus been arraigned in a number of crimes.
3. The indictment in the instant case is that on 24 th October,
2015 the first informant, who works with a company, collected two
boxes containing gold and diamonds worth Rs. 2,48,30,000/- from
the Airport, and was carrying those boxes on an Activa scooter. The
applicant and the co-accused intercepted him . They were in a 'Swift
Dzire' car with a fake number plate. Co-accused Ashish Bhosale
falsely proclaimed that he was a crime branch official. Co-accused
Naseem Khan picked up the jewelry boxes and fled away. The first
informant was forced to board the said car. The applicant Rahul had
allegedly pointed out a country made revolver and threatened to
shoot him. The first informant was thereafter taken to a spot near
Jogeshwari Fly Over on Western Express Highway and dropped of
the car. Stolen property was thereafter shared by the applicants
and the co-accused.
Vishal Parekar ...2
::: Uploaded on - 08/02/2024 ::: Downloaded on - 24/02/2024 10:09:11 :::
[email protected]
4. The learned counsel for the applicants submitted that the
applicant Rahul is in custody since 25 th October, 2015 and the
applicant Deepak is in custody since 28th October, 2015. Only one
witness has been examined by the prosecution. The second witness
is still in the witness box. The prosecution has cited more than 100
witnesses. Three of the co-accused have been granted bail by the
trial Court. Three co-accused have been released on bail by this
Court. Therefore, as the applicants are in custody for more than 8
years and 3 months, the applicants deserve to be released on bail as
it is very unlikely that the trial can be concluded in a near future.
5. The learned APP resisted the prayer for bail. The learned APP
pointed out that the applicant Rahul has been arraigned in a
number of crimes. He is facing trial for the offences punishable
under MCOC Act, 1999 in a case arising out of C.R. No. 13 of 2007
registered with Wagle Estate police station. Therefore the interdict
contained in section 21(5) of the MCOC Act, 1999 comes into play,
despite long incarceration. Thus, the applicant Rahul does not
deserve to be released on bail. Qua the applicant Deepak, the
learned APP fairly submitted that there is no commonality of
offences registered against the gang leader and the applicant
Deepak. However, having regard to the role of the applicant and the
Vishal Parekar ...3
::: Uploaded on - 08/02/2024 ::: Downloaded on - 24/02/2024 10:09:11 :::
[email protected]
recovery of the stolen property at his instance, he does not deserve
to be released on bail.
6. The learned counsel for the applicant Rahul joined the issue
by canvassing a submission that out of 12 crimes registered against
applicant Rahul, he has been acquitted in 6 cases and convicted in 2
cases. In rest of the crimes he is on bail. The learned counsel
further submitted that the fact that the applicant was on bail in
MCOC Special case arising out of C.R. No. 13 of 2017 registered with
Wagle Estate police station when the instant crime was allegedly
committed, by itself, does not dis-entitle the applicant from the
relief of bail.
7. Reliance was sought to be placed on an order passed by this
Court in Eklakh Rahim Shaikh @ Peti vs. The State of Maharashtra 1.
In the said case, a learned single Judge of this Court, inter alia,
observed that sub clause (5) of section 21 of MCOC Act has to be
interpreted keeping in mind the legislative object. The Court is not
expected to mechanically reject the bail only because the accused
was arrested under MCOCA, while on bail. Harmonious reading of
the provisions would achieve the legislative intent by maintaining
right balance. In the said case, having regard to the long period of
1 BA No.3792 2022 Dt. 27/03/2023.
Vishal Parekar ...4
::: Uploaded on - 08/02/2024 ::: Downloaded on - 24/02/2024 10:09:11 :::
[email protected]
incarceration (i.e. 6 ½ years) and the slow pace of the trial, the years) and the slow pace of the trial, the
learned single Judge found the restrictions contained in section
21(4) and 21(5) of the MCOC would not operate.
8. In the case at hand, the facts as regards the period of
incarceration are stark. The applicants are in custody for more
than 8 years and 3 months. Indisputably, the trial has commenced.
However, incontrovertibly, recording of evidence of only one
witness is complete. The second witness is still in the box. The
prosecution proposes to examine a seizable number of witnesses.
Having regard to the pace of the trial, it is extremely unlikely that
the trial can be concluded within a reasonable period.
9. The statutory restrictions in the matter of grant of bail
(where the trial is not likely to be completed within a reasonable
period), are required to be appreciated and balanced against a
competitive consideration of the right to speedy trial. A procedure
which denies the conclusion of trial within a reasonable period and
thereby deprives personal liberty for an inordinately long period,
stands foul of the right to life and personal liberty guaranteed under
Article 21 of the Constitution of India. Such prolonged incarceration
without a realistic prospect of conclusion of the trial within a
Vishal Parekar ...5
::: Uploaded on - 08/02/2024 ::: Downloaded on - 24/02/2024 10:09:11 :::
[email protected]
reasonable period, has been held to override the statutory
restrictions in the matter of grant of bail.
10. Undoubtedly, the statutory restrictions on the grant of bail in
special enactments like MCOCA, 1999, NDPS Act, 1985 and
Unlawful Activities Prevention Act, 1967, are to achieve the object
of the respective enactments. Having regard to the nature of the
offences, the legislature has considered it expedient to put
additional restrictions in the matter of grant of bail. There can be
no qualm over the fact that the offences being of grave nature,
release of the accused therein, is conditioned by the twin
satisfaction. However, there is, at the same time, a competing
consideration of unjustified denial of personal liberty. These
provisions are, thus, premised on the justification that the trial in
which those provisions apply are also concluded expeditiously.
11. In the case of Shaheen Welfare Association V/s. Union of India
and Ors.2 the Supreme Court enunciated that stringent provisions
can be justified on the presumption that the trial of the accused will
take place without undue delay. The observations in paragraph
No.10 read as under :
"10. Bearing in mind the nature of the crime and
2 (1996) 2 SCC 616
Vishal Parekar ...6
::: Uploaded on - 08/02/2024 ::: Downloaded on - 24/02/2024 10:09:11 :::
[email protected]
the need to protect the society and the nation, TADA
has prescribed in Section 20(8) stringent provisions
for granting bail. Such stringent provisions can be
justified looking to the anture of the crime, as was
held in Kartar Singh case3, on the presumption that
the trial of the accused will take place without undue
delay. No one can justify gross delay in disposal of
cases when undertrials perforce remain in jail, giving
rise to possible situations that may justify invocation
of Article 21."
12. In Union of India V/s. K.A.Najeeb (supra), where the accused
was facing trial for the offences punishable under the Unlawful
Activities Prevention Act and the rigour of Section 43-D(5) of the
said Act, was attracted, the Supreme Court observed as under :
"12. Even in the case of special legislations like
the Terrorist and Disruptive Activities (Prevention)
Act, 1987 or the Narcotic Drugs and Psychotropic
Substances Act, 1985 ("NDPS") which too have
somewhat rigorous conditions for grant of bail, this
Court in Paramjit Singh v. State (NCT of Delhi)4,
Babba v/s. State of Maharashtra 5 and Umarmia v/s.
State of Gujarat6 enlarged the accused on bail when
they had been in jail for an extended period of time
with little possibility of early completion of trial. The
constitutionality of harsh conditions for bail in such
special enactments, has thus been primarily justified
on the touchstone of speedy trials to ensure the
protection of innocent civilians.
15 This Court has clarified in numerous
judgments that the liberty guaranteed by Part III of
the Constitution would cover within its protective
ambit not only due procedure and fairness but also
access to justice and a speedy trial. In Supreme Court
Legal Aid Committee (Representing Undertrial
Prisoners) v/s. Union of India 7, it was held that
undertrials cannot indefinitely be detained pending
3 (1994) 3 SCC 569
4 (1999) 9 SCC 252
5 (2005) 11 SCC 569
6 (2017) 2 SCC 731
7 (1994) 6 SCC 731
Vishal Parekar ...7
::: Uploaded on - 08/02/2024 ::: Downloaded on - 24/02/2024 10:09:11 :::
[email protected]
trial. Ideally, no person ought to suffer adverse
consequences of his acts unless the same is
established before a neutral arbiter. However, owing
to the practicalities of real life where to secure an
effective trial and to ameliorate the risk to society in
case a potential criminal is left at large pending trial,
Courts are tasked with deciding whether an
individual ought to be released pending trial or not.
Once it is obvious that a timely trial would not be
possible and the accused has suffered incarceration
for a significant period of time, Courts would
ordinarily be obligated to enlarge them on bail.
17. It is thus clear to us that the presence of
statutory restrictions like Section 43-D(5) of UAPA
per-se does not oust the ability of Constitutional
Courts to grant bail on grounds of violation of Part III
of the Constitution. Indeed, both the restrictions
under a Statue as well as the powers exercisable
under Constitutional Jurisdiction can be well
harmonised. Whereas at commencement of
proceedings, Courts are expected to appreciate the
legislative policy against grant of bail but the rigours
of such provisions will melt down where there is no
likelihood of trial being completed within a reasonable
time and the period of incarceration already
undergone has exceeded a substantial part of the
prescribed sentence. Such an approach would
safeguard against the possibility of provisions like
Section 43-D (5) of UAPA being used as the sole
metric for denial of bail or for wholesale breach of
constitutional right to speedy trial.
13. The Supreme Court has thus enunciated in clear and explicit
terms that the rigours of the provisions which restrict the grant of
bail will meltdown where there is no likelihood of the trial being
completed within a reasonable time and the period of incarceration
already undergone has exceeded substantial part of the prescribed
sentence.
Vishal Parekar ...8
::: Uploaded on - 08/02/2024 ::: Downloaded on - 24/02/2024 10:09:11 :::
[email protected]
14. In the light of the aforesaid position, reverting to the facts of
the case, it is necessary to note that the major offence punishable
under section 395 of Penal Code entails imprisonment for life or
rigorous imprisonment for a term which may extend to 10 years.
The offences punishable under sections 3(1)(ii), 3(2) and 3(4) of
the MCOC Act, 1999 entail punishment for imprisonment which
shall not be less than 5 years or which may extend to imprisonment
for life.
15. The situation which thus obtains in the case at hand is that
the period of incarceration of the applicants far exceeds the
minimum sentence prescribed under sections 3(1)(ii), 3(2) and
3(4) of the MCOC Act, 1999. The period of incarceration is nearing
completion of alternate sentence prescribed for the major offence
punishable under section 395 of the Penal Code.
16. In the aforesaid view of the matter, the period of incarceration
of the applicants is such that the statutory restrictions in the
matter of grant of bail, melt down under its weight. I find substance
in the submission of the applicants that having regard to the pace of
the trial it is extremely unlikely that the trial can be concluded in
the immediate future. Further deprivation of the personal liberty of
Vishal Parekar ...9
::: Uploaded on - 08/02/2024 ::: Downloaded on - 24/02/2024 10:09:11 :::
[email protected]
the applicants in the peculiar facts of the case, would clearly fall
foul of the right to life and personal liberty guaranteed under
Article 21 of the Constitution of India. Indeed the antecedents of the
applicant Rahul Kalyankar deserve to be taken into account in
putting conditions while directing the release of the applicants on
bail.
Hence, the following order :
ORDER
(i) The applications stand allowed. (ii) The applicants be released on bail in MCOCA Special Case No.8
of 2016 arising out of C.R.No.337 of 2015 registered with Vileparle police station on furnishing P.R. bond of Rs.1,00,000/- with one or more sureties in the like amount, each.
(iii) On being released on bail, the applicants shall not enter Mumbai, Mumbai Suburban District and Thane District till the conclusion of trial except for the purpose of attending trial and police station.
(iv) The applicants shall report Vileparle police station on first Monday of every month between 11.00 a.m. to 1.00 p.m.
(v) The applicants shall furnish their contact details and residential addresses to the police station Officer, Vileparle police Vishal Parekar ...10 ::: Uploaded on - 08/02/2024 ::: Downloaded on - 24/02/2024 10:09:11 ::: [email protected] station, while residing outside Mumbai, Mumbai Suburban and Thane Districts and shall keep him updated in case there is any change.
(vi) The applicants shall report to the jurisdictional police station where the applicants would reside, on every alternate Sunday between 11.00 a.m. to 1.00 p.m.
(vii) 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 them from disclosing the facts to court or any police officer. The applicants shall not tamper with evidence.
(viii) The applicants shall regularly attend the proceedings before the jurisdictional Court.
(ix) 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 otherwise of the applicant and the co-accused and the trial Court shall not be influenced by any of the observations made hereinabove.
Applications disposed.
(N. J. JAMADAR, J.)
Vishal Parekar ...11
::: Uploaded on - 08/02/2024 ::: Downloaded on - 24/02/2024 10:09:11 :::