Bombay High Court
Kiran Srinivas Chavan vs The State Of Maharashtra on 14 February, 2019
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.3352 OF 2018
Aanand Bhimu Jadhav, Age 21 years,
Occ.Labour, R/o.At Room No.2,
Jiwan Sheth Chawl, Gundawali,
Tal.Bhiwandi, Dist.Thane. Applicant
versus
Senior Inspector of Police and another Respondents
WITH
CRIMINAL BAIL APPLICATION NO.1510 OF 2018
Genusing Somlunayak Chauhan, Age 33 years,
R/o.Post Kanyakolur, Japa Nayak Tanda,
Tal.Sahapur, District Yadgir, Karnataka State. Applicant
versus
The State of Maharashtra Respondent
WITH
CRIMINAL BAIL APPLICATION NO.1924 OF 2018
Kiran Srinivas Chavan, Age 30 years,
R/o.House No.4-140, Vijay Laxmi Street,
Humnabad, Dist.Bidar, Karnataka. Respondent
versus
The State of Maharashtra Respondent
Mr.Balwant Salunkhe for applicant in BA No.3352/2018.
Mr.Santosh M. Deshpande for applicant in BA No.1510/2018.
Mr.Aabad Ponda I/by Karma Vivan for applicant in BA
No.1924/2018.
Mr.Prashant Jadhav, APP, for State.
CORAM : PRAKASH D. NAIK, J.
DATE : 14th February 2019
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PC :
1. The applicants in all these applications are seeking bail under
Section 439 of Code of Criminal Procedure, 1973 in connection with
CR No.I-07 of 2017 registered with Kongaon Police Station for
offences under Sections 395, 365, 201, 120B, 411, 412 of Indian
Penal Code r/w Sections 3(I),(II), 3(2), 3(4) of Maharashtra Control
of Organized Crime Act (`MCOC Act'). The applicant in Bail
Application No.3352 of 2018 was arrested on 13th February 2017.
The applicant in Bail Application No.1510 of 2018 was arrested on
8th March 2017, whereas applicant in Bail Application No.1924 of
2018 is arrested on 8th March 2017.
2. The prosecution case is that the complainant is resident of
Kalyan, District Thane. He is employee of company viz Proconnect
Supply Solutions Limited as Assistant General Manager. The said
company is having its godown at Gala Nos.1 to 10, Building No.E/6,
behind Cipla Company, Pimpalas Road, Pimplas Gaon, Tal.Bhiwandi
wherein electronic goods of various companies are stored. About 50
persons are working in the said godown. Several security guards are
deputed for security in the said godown. On 10-1-2017 the
complainant received telephonic call from the security guard
informing him that theft has taken place in the godown of the
company. The complainant immediately rushed to the spot. On
reaching the godown it was revealed that shutter no.11 of the
godown was broken and the accused had committed theft of mobile
phones, I-Pods, Chargers and USB cables valued at Rs.42,19,490/-.
The complainant thereafter lodged complaint in respect of said theft
with Kongaon Police Station against unknown persons. The offence
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as stated hereinabove was registered. The spot panchanama was
recorded. Subsequently the accused were arrested. Approval was
sought for application of provisions of MCOC Act in accordance with
Section 23(1) of the said Act. Sanction was accorded for application
of provisions of MCOC Act. The applicants were remanded to
custody from time to time. On completing investigation charge sheet
has been filed.
3. Learned counsel representing the accused submitted that the
provisions of MCOC Act are not attracted in the present case. There
is no evidence to show that the applicant were the members of
organized crime syndicate. The prosecution is relying upon the
confession of one of the accused Santosh Chavan recorded u/s 18 of
MCOC Act. It is a weak piece of evidence and requires
corroboration. Considering the nature of evidence against
applicants, embargo enunciated u/s 21(4) of MCOC Act is not
attracted against applicants.
4. Learned counsel for applicants in respective applications
submitted that there is no cogent evidence against applicants. The
provisions of MCOC Act are not applicable against them. The co-
accused Laxman Chavan, Sanjaykumar @ Munna Babu Bula were
granted bail in Bail Application Nos.571 of 2018 and 945 of 2018.
5. Learned counsel for applicant in BA No.3352 of 2018
submitted that there is no evidence to establish his link with the
crime syndicate. There are no antecedents against him. The
prosecution is relying on the confession of the co-accused which is
not corroborated by any evidence. It is further submitted that there
is no identification parade identifying the applicant as the person
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who is involved in the crime. Except recovery of three mobile
phones at the instance of applicant, there is no evidence to show his
complicity in the crime. The advocate for applicant in Bail
Application No.1510 of 2018 submitted that there is no evidence of
identification parade against him and there is no recovery of any
nature against him. Even there is no CDR record to show his
involvement in the crime. There is no evidence of his participation in
the crime and the prosecution is merely relying on the confessional
statement of co-accused Santosh Chavan. Whereas, advocate for
applicant in Bail Application No.1924 of 2018 submitted that there is
lack of evidence to establish his connection with organized crime
syndicate. It is submitted that at the most the involvement of
applicant can be attributed to the charge of receiver of stolen
property. The prosecution has not been able to show that the
applicant is member of organized crime syndicate to invoke the
provisions of MCOC Act. It is submitted that the applicant is arrested
on the basis of statement of Kishor Budhwant. It is submitted that
confessional statement of Santosh Chavan in fact exonerates the
applicant from being involved in the crime. The case of prosecution
with reference to exchange of cash amount towards sale of mobile
phones cannot be accepted because the alleged act had occurred
during the period of demonetization and it would not have been
possible to arrange cash as indicated in the statement of witnesses. It
is further submitted that the evidence of witnesses relied upon by
prosecution suffers from various infirmities in the nature of
contradiction and it is difficult to accept the said evidence. It is
submitted that there is no parade to corroborate the involvement of
applicant in the crime. He is in custody from the date of arrest.
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6. Learned APP on the contrary submitted that there is evidence
to show involvement of applicants in crime. It is submitted that the
prosecution is relying on the confessional statement of co-accused
Santosh Chavan recorded u/s 18 of MCOC Act. It is submitted that
the said accused has shown involvement of accused in the crime. It
is further submitted that applicant in Bail Application No.3352 of
2018 was instrumental in bringing the tempo. It is submitted that in
the confessional statement of the co-accused it is indicated that the
applicant in Bail Application No.3352 of 2018 had brought tempo
which was used in commission of crime. It is further submitted that
one another case is registered against applicants in Bail Application
No.1510 of 2018 and 1924 of 2018. However, learned counsel
representing applicants submitted that in the said case, the
applicants were arrested after the arrest was shown in present case.
The said case was registered against unknown persons and the
applicants are released on bail. As observed hereinabove, as far as
applicant in Bail Application No.3352 of 2018 is concerned, there is
no identification parade. Except recovery of three mobile phones,
there is no other evidence against him. Similarly as far as applicant
in Bail Application No.1510 of 2018 is concerned, except
confessional statement recorded u/s 18 of MCOC Act of co-accused,
there is no evidence against the applicant. His role in the crime is
not established. As far as applicant in Bail Application No.1920 of
2018 is concerned, the prosecution has relied upon recovery of 11
mobile phones. However, as stated above, there are discrepancies in
the evidence of witnesses relied upon by prosecution. There is
nothing on record to link the applicant as the person who is the
member of organized crime syndicate. There are no other cases
against him except the case in which he was arrested after he is
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shown arrested in the present case to show that he was involved in
the activities of organized crime syndicate. The confessional
statement of the co-accused also does not show any corroborative
circumstance against the said applicant as person who is involved in
any crime. The applicants are in custody from the date of arrest.
Investigation is completed and charge sheet is filed.
7. Considering the facts and circumstances of the case and nature
of evidence against the applicants in these applications, the rigors of
Section 21(4) of MCOC Act would not be attracted in present cases.
Hence, case for grant of bail is made out. Hence, I pass following
order :
ORDER
(i) Criminal Bail Application No.3352 of 2018, Criminal Bail Application No.1510 of 2018 and Criminal Bail Application No.1924 of 2018 are allowed and disposed off;
(ii) The applicants in these Criminal Bail Applications be released on bail in connection with CR No.I-07 of 2017 registered with Kongaon Police Station, on their furnishing PR bond in the sum of Rs.25,000/- each with one or more sureties in the like amount;
(iii) The applicants in these Bail Applications are directed to report Kongaon Police Station once in a month on every first Saturday between 10 am and 12 noon till conclusion of trial;
(iv) The applicants in these Bail Applications shall attend the Trial Court regularly on dates of hearing of the case, unless exempted by the said Court for some reason.
(PRAKASH D. NAIK, J.) MST ::: Uploaded on - 18/02/2019 ::: Downloaded on - 17/03/2019 11:30:41 :::