Bombay High Court
Eklakh Rahim Shaikh @ Peti vs The State Of Maharashtra on 27 March, 2023
Author: Prakash D. Naik
Bench: Prakash D. Naik
2023:BHC-AS:10418
03.BA.3792.22doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 3792 OF 2022
Eklakh Rahim Shaikh @ Peti ...Applicant
Versus
The State Of Maharashtra ...Respondent
....
Mr. Milan Desai, Advocate for the Applicant.
Mr. M.G. Patil, APP for the Respondent - State.
Mr.Shivaji N. Kanade, PSI, Mr. Satardekar, ASI, Crime Branch
Thane City.
CORAM : PRAKASH D. NAIK, J.
DATE : 27th March, 2023.
PER COURT:
1. The Applicant is seeking bail in CR No. I-316/2016
registered with Thane Central Police Station for the offences
punishable under Sections 307, 387, 427, 452, 506 (II), 120
B r/w 34 of IPC.
2. The case of the prosecution is that the complainant is
working with Heaven Construction and Developer,
Ulhasnagar, District-Thane. On 11th July, 2016 at about
11:00 a.m., he opened the office. His employer had been to
Mumbai for work. The other staff members were present in
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the office. The son of the employer was in the office. At
about 3:15 p.m., one unknown person entered in the office.
He was wearing helmet and windcheater. He inquired about
the whereabouts of the boss. He removed pistol tried to fire
towards the complainant. However, there was no firing. The
complainant tried to overpower the assailant. The helmet of
the assailant fell down. Another person entered in the office.
He was carrying pistol in his hand. It was pointed out at the
complainant. While the complainant tried to push the
assailant, he was assaulted with butt of the pistol on his head.
The complainant pushed the accused and ran inside the office
of his boss to save his life. The second person opened fire
towards complainant and fired on the glass of his door. The
Complainant did not sustain any firearm injury. It was
alleged that gangster Suresh Pujari was calling his boss and
his son for extortion of money and demanded ransom from
his boss, and, threatened to kill them if the amount is not
given to him. Complaint was lodged with the Central Police
Station, District-Thane, hence Suresh Pujari had sent goons
who had assaulted the complainant and others. The
assailants left the office. From the CCTV footage it is
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revealed that they fled on motorcycle. Subsequently the
complainant learn that his colleague Sagar Tambe was also
threatened by pistol. One of the assailants handed over one
envelope to Sagar Tambe. It was containing a white paper on
which number of Suresh Pujari was written. First
Information Report ("FIR", for short) was registered.
Subsequently, provisions of Section 3(1)(ii), 3(2), 3(4) of
MCOC Act were invoked.
3. The Applicant had preferred the Application for bail
before this Court viz Bail Application No. 3377 of 2018.
The said Application was rejected vide order dated 24th
August 2021. Trial was expedited.
4. This is the Second Application for bail pursuant to
order dated 22nd February 2023 passed by the Coordinate
Bench, the Application is listed before me.
5. Learned Advocate Mr. Desai submitted as under:
i. The Applicant is not involved in the present case. He
has been falsely implicated in this case. There is no
evidence to show that the Applicant was present at
the place of incident and had participated in incident of
firing.
ii. While rejecting the previous Application for bail, this
Court had expedited the trial. However, the Trial has
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proceeded at snail's pace.
iii. The Applicant is in custody since 5th October 2016.
Thus, the Applicant is under incarceration for a
period of six and half years. The Applicant cannot be
incarcerated in custody without trial for indefinite
period.
iv. Although charge is framed, the prosecution has not
examined single witness. It is not clear as to when the
trial would conclude.
v. The prosecution is relying upon the list of 137
witnesses and assuming that the prosecution may not
examine all the witnesses, the trial would not be over
in near future.
vi. The Applicant had not protracted the trial. On the
contrary, the Applicant had preferred applications
before the Trial Court requesting the Court to expedite
the trial.
vii. Long incarceration in custody affects the liberty of
citizen enshrined under Article 21 of the Constitution
of India.
viii. The Hon'ble Supreme Court as well as this Court has
granted bail to accused who were languishing in jail for
substantial period of time on the ground that long
incarceration in custody affects personal liberty
guaranteed under Article 21 of the Constitution of
India.
ix. The previous Application for bail was rejected on
merits vide order dated 24th August 2021. However,
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there is no progress in the trial for more than year after
rejection of previous Application for bail preferred by
the applicant.
x. While rejecting the Application for bail the prosecution
had urged that the applicant was involved in the case
under the MCOC, Act in the past and while on bail in
that case, the applicant has committed the present
crime. The prosecution had adverted to Section 21(5) of
the MCOC Act. It is submitted that infringement of
Article 21 of the Constitution of India would entitle,
the applicant to be released on bail. The embargo of
Section 21(5) of the Act cannot be impediment to grant
bail in the event of violation of fundamental right
under Article 21 of the Constitution of India.
xi. This Court has granted bail to the accused facing
prosecution under the MCOCA Act on the ground of
long incarceration in custody.
xii. Although Section 21 (5) restricts grant of bail to the
accused who has committed the offence under MCOC
Act while on bail in previous offence under MCOC
Act, if there is no evidence against the accused in
subsequent offence, he cannot be deprived of bail.
xiii. The nature of evidence against the Applicant in the
present case is weak. The confessional statements of
the accused recorded under Section 18 of the MCOC Act
are vague. Except the version of co-accused that the
pistol used in the crime was handed over by the
applicant to the co-accused, there is no evidence to
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corroborate the said version.
6. Learned Advocate for the Applicant had relied upon
the following decisions.
i. Union of India V/s K.A. Najib (2021) 3 SCC 713
ii. Akay Atmaram Rathod V/s State of Maharashtra
decided by this Court vide Criminal Application No.
786/2022.
iii. Ajit Bhagwan Tiwde V/s State of Maharashtra,
dated 10/1/2022 passed in Bail Appliction No. 995/2022
iv. Mrugank Kalwalkar @ Mickky V/s State of
Maharashtra and other connected Applications.
(Bail Application No. 2388/2022, Bail Application No.
2080/2022, Bail Application No. 2670/2022).
v. Sachin Damodar Ekhtapure V/s State of
Maharashtra. (Bail Application No. 2830/2022).
vi. Musa Annu Sayyed Vs State of Maharashtra (Bail
Application No. 172/2021)
7. Learned APP submitted that the previous application
for bail was rejected on merits vide order dated 24th August
2021. The offence is of serious nature. There is evidence to
show the involvement of the Applicant in crime. The
confessional statement of the co-accused involved in the
crime reveals that the pistol used in the crime were provided
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by the Applicant. Although the prosecution has provided a
list of 137 witnesses, on instruction it is submitted that the
prosecution may examine about 45 witnesses. The Applicant
was involved in the past in the case registered under the
provisions under MCOC Act. While on bail, he has
committed present crime. Section 21 (5) provides that the
accused shall not be granted bail if it is noticed by the Court
that he was on bail in an offence under this Act on the date
of offence in question.
8. The factual matrix of this case would indicate that the
victim was threatened by the accused. For not satisfying the
demand of extortion amount some of the accused visited the
office premises of the victim. The assailant fired at the
complainant. The applicant was not present at the place of
incident. Applicant is in jail for six and half years. There is
no progress in the trial. Not a single witness have been
examined. Assuming that the prosecution would examine 45
witnesses out of the list of 137 witnesses, it is not clear how
long it would take to conclude the trial. This Court had
expedited the trial vide order dated 24/8/2021.
9. In the case of Union of India V/s K.A. Nazib (supra) it
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was observed that the presence of statutory restrictions like
Section 43-D(5) of UAPA per se does not oust, the ability of
the Constitutional Courts to grant bail on the ground of
violation of part III of the Constitution. Indeed, both the
restrictions under the statute as well as the powers exercisable
under Constitutional jurisdiction can be well harmonized.
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
whereas there is no likelihood of trial being completed within
reasonable time and the period of incarceration already
undergone has exceeded a substantial part of prescribed
sentence. Such an approach would safeguard against the
possibility of provisions like 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. The charges against the
accused therein are grave and a serious threat to social
harmony. However, keeping in mind the length of the period
spent by him in custody and the unlikelihood of the trial
being completed any time soon, the High Court appears to
have been left with no other option except to grant bail. An
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attempt has been made to strike a balance between
Appellant's rights to lead evidence of its choice and establish
the charges beyond any doubt and simultaneously the
Respondent's rights guaranteed under para III of Constitution
have been well protected.
10. In the case of Ajit Bhagwan Tiwade V/s State of
Maharashtra the principle enunciated in several decisions with
regard to grant of bail on account of long incarceration in
custody were noted and it was observed that Right to speedy
trial flows from Right to life and liberty under Article 21 of
the Constitution of India. It was also observed that
prolonged custody affects Fundamental Right under Article
21 of the Constitution of India. Incarceration in custody for
long period without trial affects personal liberty guaranteed
under Article 21 of the Constitution of India. Embargo under
the provisions of Special Acts shall not be an impediment in
grant of bail by this Court on the ground of incarceration of
accused in custody for a long time.
11. This Court in the case of Mrugank Kalwallkar @
Mickky V/s State of Maharashtra (Bail Application No. 2388
of 2022) and other connected matters referred to decision of
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Apex Court in the Code of Union of India V/s K.A. Najeeb
(supra) and it was observed that it is settled position of law
that incarceration in custody for longer period pending
conclusion of trial is violative of right guaranteed under
Article 21 of the Constitution of India.
12. Sections 21(4) and and 21 (5) of the MCOCA
operates as restrictions for grant bail to the accused involved
in commission of offence under the provisions of the Said
Act. However, as noted in several decisions hereinabove, the
restrictions enumerated under various Acts for grant of bail
would not be impediment for grant of bail in the event
accused is in custody for long period. Section 21 (4) and 21
(5) of MCOC Act reads as follows:
21(4). Notwithstanding anything contained in the
Code, no person accused of an offence punishable under this
Act, shall if in custody, be released on bail or on his own
bond, unless-
(a) the Public Prosecutor has been given an opportunity
to oppose the application of such release; and
(b) where the Public Prosecutor opposes the application,
the Court is satisfied that there are reasonable
grounds for believing that he is not guilty of such
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offence and that he is not likely to commit any
offence while on bail.
21(5). Notwithstanding anything contained in the
Code, the accused shall not be granted bail if it is noticed
by the Court that he was on bail in an offence under this
Act, or under any other Act, on the date of the offence
in question.
The words 'or under any other Act' has been deleted by
this Court in the decision of Bharat Shah Vs State of
Maharashtra 2003 All MR (CRI) 1061 decided by this
Court. The said decision was challenged before Apex Court
viz. State of Maharashtra Vs Bharat Shantilal Shah and
Others (2008) 13 SCC 5 wherein it was observed as follows:
"62. Having recorded our finding in the aforesaid
manner, we now proceed to decide the issue as to whether a
person accused of an offence under MCOCA should be
denied bail if on the date of the offence he is on bail for an
offence under MCOCA or any other Act.
"63. As discussed above the object of the MCOCA is
to prevent the organized crime and therefore, there could be
reason to deny consideration of grant of bail if one has
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committed a similar offence once again after being released
on bail but the same consideration cannot be extended to a
person who commit an offence under some other Act would
not be in any case in consonance with the object of the Act
which is enacted in order to prevent only organized crime."
13. Personal liberty enshrined under Article 21 of
Constitution of India is supreme and the statutory embargo
on grant of bail would not override the fundamental Right
guaranteed under Article 21 of Constitution.
14. The Division Bench of this Court in the case of
Akshay Atmaram Rathod V/s The State of Maharashtra
(supra) considered the effect of Section 21(5) of MCOC Act.
In the light of observations of Supreme Court in the case of
State of Maharashtra V/s Bharat Shah (supra) It was
submitted before this Court that the rider of sub-clause (5)
would come into play if subsequently the accused commits a
similar offence and not in a case where there is no material
at all in a latter crime. The Division Bench observed that the
provisions of sub-clause (5) are to be read alongwith the
condition embodied in clause 4 (b) of Section 21 of the
MCOCA. The prima facie requirement for grant of bail is
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about satisfaction of the Court that there are reasonable
grounds for believing that the accused is guilty of such
offence. The provision is to be read on the canvass of earlier
requirement. In the decision of State of Maharashtra V/s
Bharat Shah (supra) the Supreme Court has explained that
the object of MCOCA is to prevent the organized crime, and
there can be reason to deny bail if one has committed a
similar offence once again, after being released on bail. The
legislative intention is to desist a person from repeating the
similar offence once again after his release on bail,
therefore, one has to prima facie record a finding that in
existing crime, the accused has committed similar offence
once again. Liberty of a person shall not ordinarily interfered
with unless there exists convincing grounds. 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 provision would achieve the legislative intent by
maintaining right balance
15. The main ground urged in this case is long
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incarceration in custody. The applicant is not responsible in
protracting the trial and on the contrary he had preferred
applications before the Trial Court for expeditious hearing of
case. Considering the nature of evidence against him and the
fact that he is in custody for a period of six and half years
from the date of his arrest and since trial is the proceeding
with slow pace case for grant of bail is made out. On this
ground the restrictions under Section 21(4) or 21(5) of the
MCOC Act would not deprive the accused being released on
bail.
ORDER
i. Bail Application No. is allowed.
ii. The Applicant is directed to be released on bail in connection with CR No. R-316 of 2016 registered with Thane Central Police Station, on executing P.R. Bond in the sum of Rs. 25,000/- with one or more sureties in the like amount.
iii. The applicant is permitted to furnish cash bail in the sum of Rs.25,000/- for a period of 6 weeks in lieu of surety. iv. The applicant shall report concerned Police Station once in a month on first Saturday of the month between 11:00 Rameshwar Dilwale 14 of 15 ::: Uploaded on - 06/04/2023 ::: Downloaded on - 12/06/2023 20:06:50 :::
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vi. The applicant shall not tamper with the evidence in any manner.
vii. Bail Application stands disposed of.
(PRAKASH D. NAIK, J.)
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