Bombay High Court
Mohammed @ Mammu @ Sanga Sayyed Mohammed ... vs The State Of Maharashtra on 25 August, 2021
Author: Prakash D. Naik
Bench: Prakash D. Naik
2-Ba-2733-2019.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 2733 OF 2019
Mohammed @ Mammu @ Sanga
Sayyed Mohammed Jakir Sayyad ... Applicant
Versus
The State of Maharashtra ... Respondent
.....
Mr. Acharya M. Moorthy, Advocate for the Applicant.
Mr. S. R. Agarkar, APP for the Respondent - State.
.....
CORAM : PRAKASH D. NAIK, J.
DATE : 25th AUGUST, 2021.
PER COURT:
1. This is an application for bail under Section 439 of
Cr.P.C. in connection with C.R. No. I-21 of 2016 registered with
Manpada Police Station, Dist. Thane. The applicant was arrested on
19th February, 2018.
2. The case of the prosecution as reflected in the First
Information Report (for short 'FIR') is that on 13 th January, 2016,
the complainant was returning home. Two unknown persons came
on motorcycle. They were followed by two other unknown persons
on the second motorcycle. One of the pillion rider snatched
Digitally signed
by SAJAKALI
SAJAKALI LIYAKAT
JAMADAR
LIYAKAT Date:
JAMADAR 2021.08.27
14:14:01
+0530
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mangalsutra of the complainant. The complainant shouted for help.
The persons, who had gathered at the scene of offence chased the
accused. Two persons riding motorcycle fell down. One of them
was apprehended and the second person threatened the members
of the public with the knife. Two other accused were riding the
motorcycle returned to the spot and they managed to give lift to
accused who was threatening public. Thus, three of them managed
to flee from the place of incident. The accused, who was
apprehended at the spot gave his name as Haidarali Sarfaraj
Kayam. He also gave names of other accused as Hashmi Dara
Jabari @ Hashim Jafar (Dara) Hussain Sayyad @ Irani, Gazi Dara
Jafari and Mohammed @ Mamu @ Sanga Jakir Farjand Sayyed.
The offence was registered under Section 394 r/w Section 34 of
IPC. Subsequently, approval was obtained for invoking the
provisions of Maharashtra Control of Organised Crime Act, 1999
( for short "MCOC Act") and on completing investigation, sanction
was granted for offences under Section 3(1)(ii), 3(2), 3(4) of
MCOC Act. On completing investigating, charge-sheet was filed.
3. The applicant had preferred an application for bail
before the Court of Sessions. The said application was rejected vide
order dated 29th November, 2018.
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4. Learned Advocate for the applicant submitted that the
applicant is in custody for a period of about three and half years.
The provisions of MCOC Act cannot be applied against him. There
is no cogent evidence to establish his complicity in the present
crime. He has not been identified by any witnesses. There is no
incriminating recovery from the applicant. The gang leader
Mohammad @ Aandu Afsar Sayyed has been granted bail by the
Special Court under the MCOC Act vide order dated 5th January,
2018. Since there is no evidence against the gang leader he has
been granted bail. The question of continuing the applicant in
custody does not arise. For lack evidence about involvement of the
applicant in the present case, the provisions of MCOC Act cannot be
invoked against the applicant alleging that he is member of crimes
syndicate. The accused Aziz Hafiz Irani @ Sayed, Kantilal Anandji
Shah and Kasim Afsar Sayyad Jaffery were granted bail. The
applicant was implicated only on the basis of the statement and the
confession of the co-accused.
5. The prosecution has filed affidavit in reply opposing
the application for bail. Learned APP submitted that the applicant is
the member of the crime syndicate. Several offences are registered
against him. The gang is involved in committing serious offences.
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There are several cases registered against gang leader. Prima facie
material is available to fulfill requirement of the provisions of
MCOC Act. There is evidence to show that the applicant is member
of gang headed by Mohammad @ Aandu Afsar Sayyed.
6. The case of the prosecution relates to the incident of
snatching mangalsutra of complainant by the accused. The case
proceeds on the basis that the co-accused apprehended on the spot
had disclosed the name of the applicant. The supplementary
statement of the complainant was recorded on 13th January, 2016,
23rd January, 2016 & 18th March, 2016. The complainant has
improvised her version by alleging that she was wearing another
ornament which also snatched by the accused. Statements of the
witnesses were recorded. Witness Sudesh Chavan in his statement
dated 13th January, 2016 has stated that one person was
apprehended on the spot. In the identification parade he has
identified some of the accused. The statement was recorded
pursuant to the Test Identification Parade which did not disclose
name of person to whom he has identified. Statement of Santosh
Lokhande was recorded wherein he stated that the apprehended
accused gave the name of applicant. There was no test
identification parade qua applicant. Thus, primarily, the
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prosecution case proceeds on the basis of the statement of the co-
accused. The fact that there are several cases registered against the
applicant. However, it is pertinent to note that the provisions of the
MCOC Act were invoked against the applicant and co-accused, on
the the ground that they are members of gang headed by
Mohammad @ Aandu Afsar Sayyed. The gang leader has been
granted bail by the Special Court under the provisions of MCOC
Act. While granting bail to him it has been observed that nothing
was seized from him. He was not present at the spot. He was not
riding motorcycle at the relevant time. He has not been identified.
There are several cases registered against him. The said cases are
pending merely because the offence are pending against said
accused with different Police Stations. It is difficult to hold that he
had committed the present crime. There is no material on record to
show that he was present or he was supervising the crime. Hence,
there is no obstacle to release him on bail. The provisions of MCOC
Act are invoked on the basis of the fact that as member of crime
syndicate headed by the aforesaid accused. The applicant is
involved in the present case. As stated above, there is no cogent
evidence to show his complicity in the crime. The gang leader has
been granted bail for lack of evidence. The other accused namely
Aziz Hafiz Irani @ Sayed, Kantilal Anandji Shah and Kasim Afsar
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Sayyad Jaffery were also granted bail by the trial Court. The
prosecution is relying upon the confession of the co-accused Gazi
Dara Jafari. However, it is pertinent to note that there is no cogent
evidence to establish the involvement of the applicant in the
present crime.
7. Considering the nature of evidence and the facts of this
case, there would no be impediment of granting bail to the
applicant, in spite of restrictions under Sections 21(4) of MCOC
Act.
8. Hence, I pass the following order:
ORDER
(i) Criminal Bail Application No.2733 of 2019 is allowed;
(ii) The applicant is directed to be released on bail in connection with C.R. No. I-21 of 2016 registered with Manpada Police Station, Dist. Thane which is subject matter of M.C.O.C. Special Case No.5 of 2016 on executing P.R. Bond in the sum of Rs.25,000/- with one or more sureties in the like amount;
(iii) The applicant shall report Manpada Police Station once in three months on first Saturday of the month between 11:00 a.m. to 1:00 p.m. till further order;
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(iv) The applicant shall not tamper with the evidence.
(v) The applicant shall attend Trial Court regularly on the date of hearing of the case unless exempted by the Court.
(vi) Application stands disposed of accordingly.
(PRAKASH D. NAIK, J.)
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