Bombay High Court
Shakir Khwaja Peer Sayyad vs The State Of Maharashtra on 14 November, 2022
Author: Bharati Dangre
Bench: Bharati Dangre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.1599 OF 2021
Shakir Khwaja Peer Sayyed .. Applicant
Versus
The State of Maharashtra .. Respondent
...
Mr.Amin Solkar with Ms.Misbaah Solkar for the Applicant.
Mrs.Aruna Pai, Public Prosecutor with Mrs.Rutuja Ambekar,
A.P.P. for the State/Respondent.
...
CORAM: BHARATI DANGRE, J.
RESERVED ON : 18th OCTOBER, 2022
PRONOUNCED ON : 14th NOVEMBER, 2022
P.C:-
1. On being charged for the offences punishable under
Sections 302, 394, 397, 411 read with Section 34 of the Indian
Penal Code (for short, "the IPC") and under Sections 3(1)(A),
3(2), 3(4) and 3(5) of the Maharashtra Control of Organised
Crime Act, 1999 (for short, "the MCOC Act"), the applicant
seek his release on bail.
On 06/09/2022, a complaint was lodged by Yogesh
Kamble invoking Section 394 read with Section 34 of IPC by
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reporting about an incident of chain snatching by two persons,
while one Shashibai Ubale was walking towards the bus-stop
from her residence at Ramabai Nagar, Ghatkopar (E), Mumbai
and the two persons attempted to snatch her chain, but when
they failed to catch hold of it, they pulled her purse, which she
firmly held. In the whole struggle to clinch on her to her bag,
she fell on the ground and was dragged for few meters. On
being hospitalized, she succumbed to the injuries and,
therefore, Sections 302 and 397 of IPC were added.
2. The applicant came to be arrested on 22/11/2020.
Though he was not named in the FIR, but according to the
prosecution, he was receiver of the stolen property from
accused No.4 and it was recovered from the house of the
applicant under the disclosure statement of accused No.4 on
15/09/2020. The role of the applicant in the entire episode of
chain snatching was discerned on the basis of the CDR and his
contact with the other accused persons. The prosecution
allege that the applicant purchased a bike from the amount
received and he had indulged himself in illegal activities.
This constrained the prosecution to obtain prior
approval from the Additional Commissioner of Police, East
Region, Mumbai for invoking the provisions of the MCOC Act in
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C.R.No.559 of 2020. On 03/12/2020, sanction was granted by
the Commissioner of Police, Brihan Mumbai under Section
23(2) of the MCOC Act for prosecuting five accused persons
under Sections 3(1)(i), 3(2), 3(4), 3(5) of the MCOC Act. The
sanction order allege that the applicant alongwith the co-
accused are active members of an organised crime syndicate,
headed by accused No.1 Mohammed Yasin Hanif Khatri and
the instant crime has been committed with the object of
obtaining pecuniary gains, economic and other advantages for
the members of organised crime syndicate by use of force and
violence.
3. The investigation proceeded further under the
provisions of the MCOC Act and on completion of the same,
charge-sheet came to be filed. The applicant remain
incarcerated, awaiting his trial before the Special Court under
the MCOC Act and his bail application came to be rejected by
the Special Court on 20/03/2021, with the following
observations :-
"20. Further it can be said that on the basis of the
material placed on record, the applicant has participated in
the crime actively and therefore there is no hesitation to
conclude that automatically he has become the member of
organized crime syndicate which was being run by accused
No.1 as the gang leader. Therefore, I do not find merit in the
arguments advanced by the Learned advocate for the
applicant.
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21. On perusal of the record, it would reveal that the
confessional statement of accused No.3 Faees and accused
No.2 Warris Mohd. have been recorded under Section 18 of the
MCOCA Act. The confessional statement of Faees states about
the involvement of present applicant in commission of crime.
The very fact that the disclosure statement made by the co-
accused has resulted in the recovery of the muddemal
property involved in this crime goes to give corroboration on
the point of involvement of the applicant in the commission of
the crime. The same is the position in respect of the
confessional statement of accused Warris."
4. I have heard learned counsel Mr.Amin Solkar for the
applicant and Mrs.Pai, learned Public Prosecutor for the State.
With their able assistance, I have perused the charge-sheet
placed on record.
Mr.Solkar would invite my attention to the material
compiled in the charge-sheet and he would submit that the
applicant has nothing to do with the alleged offence registered
vide C.R.No.559 of 2020, as he is not the accused, who has
participated in the incident of chain snatching, in which the
deceased fell to the ground and succumbed. He would submit
that his name is not refected in the FIR and there is no
material to show that he is a member of organised crime
syndicate as alleged. He would submit that merely because
some recovery has been attributed to him at the instance of
accused No.4 in his disclosure statement, based on which the
memorandum panchnama has been prepared, it is not
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sufficient to indict him in the offence. Apart from this, he
submits that the investigation agency has failed to confront
the stolen property to the son of the deceased in order to
establish that it is this property, which was a part of the
subject crime and which was recovered from the residence of
the applicant, at the instance of the other co-accused.
Mr.Solkar would submit that it is only the confessional
statement of accused Nos.2 and 3, on which the applicant has
been indicted. Undisputedly, even accepting the veracity of the
statement and it's truthfulness, the applicant was not present
on the spot at the time when the alleged incident of chain
snatching took place. Mr.Solkar would submit that the
contact, on the basis of which the connection is sought to be
established with the other co-accused, is also far fetched as the
mobile SIM card of which the CDR has been obtained and
compiled in the charge-sheet, is not seized from the applicant
and there is no CDR collected in respect of the Vodafone SIM
card, which was seized from him on 22/11/2020. He would
vehemently submit that there is no material in the charge-
sheet, which would establish the role of the applicant as a
member of the organised crime syndicate, as no commonality
has been established by the prosecution. Merely because there
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are offences registered against the gang leader, without any
participation of the present applicant in any of the said
offences, according to Mr.Solkar, the provisions of the MCOC
Act cannot be invoked and he cannot be kept incarcerated
further. He would place reliance upon the decision of this
Court in the case of Dinesh Bhondulal Baisware Vs. State of
Maharashra1 as well as another decision of this Court in the
case of Fahim Akhtar Abdul Majid Khan Vs. The State of
Maharashtra (Bail Application No.343 of 2020 decided on
25/11/2021). Apart from this, he would also rely upon the
decision of the Hon'ble Supreme Court in the case of Ranjitsing
Brahmajeetsing Sharma Vs. State of Maharashtra & Ors. 2 as
well as in the case of State of Maharashtra & Ors. Vs. Lalit
Somdatta Nagpal & Ors.3. He would fall back on the
observations of the Hon'ble Apex Court in the case of
Ranjitsing (supra), to the following effect :
"31. Interpretation clauses contained in Sections 2(d),
2(e) and 2(f) are inter-related. An 'Organized crime syndicate'
refers to an 'Organized crime' which in turn refers to
'continuing unlawful activity'. As at present advised, it may
not be necessary for us to consider as to whether the words
"or other lawful means" contained in Section 2(e) should be
read "exude generics"/ "noscitur-a-sociis" with the words (i)
violence, (ii) threat of violence, (iii) intimidation or (iv)
coercion. We may, however, notice that the word 'violence' has
been used only in Section 146 and 153A of the Indian Penal
1 2016(4) BomCR(Cri)149
2 (2005) 5 SCC 294
3 (2007) 4 SCC 171
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Code. The word 'intimidation' alone has not been used therein
but only Section 506 occurring in Chapter XXII thereof refers
to 'criminal intimidation'. The word 'coercion' finds place only
in the Contract Act. If the words 'unlawful means' is to be
widely construed as including any or other unlawful means,
having regard to the provisions contained in Sections 400,
401 and 413 of the IPC relating to commission of offences of
cheating or criminal breach of trust, the provisions of the said
Act can be applied, which prima facie, does not appear to have
been intended by the Parliament.
32. The Statement of Objects and Reasons clearly state
as to why the said Act had to be enacted. Thus, it will be safe
to presume that the expression 'any unlawful means' must
refer to any such act which has a direct nexus with the
commission of a crime which MCOCA seeks to prevent or
control. In other words, an offence falling within the definition
of Organized crime and committed by an Organized crime
syndicate is the offence contemplated by the Statement of
Objects and Reasons. There are offences and offences under
the Indian Penal Code and other penal statutes providing for
punishment of three years or more and in relation to such
offences more than one chargesheet may be filed. As we have
indicated hereinbefore, only because a person cheats or
commits a criminal breach of trust, more than once, the same
by itself may not be sufficient to attract the provisions of
MCOCA.
33. Furthermore, mens rea is a necessary ingredient for
commission of a crime under MCOCA"
5. Per contra, Mrs.Pai, the learned Public Prosecutor, would
rely upon the affidavit filed by the State to indicate the role
attributed to the applicant in the subject CR, which has
invoked the provisions of the MCOC Act. She would rely upon
the decision of this Court in the case of Govind Sakharam Ubhe
Vs. State of Maharashtra4 to buttress her submission that
MCOC Act targets the unlawful activities of the organised
4 2009 ALL MR (Cri) 1903
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crime syndicate and since the Act contemplates a situation
where a group of persons as members of organised crime
syndicate, indulge in organised crime syndicate by use of
violence or threat of violence or intimidation or coercion, or
other unlawful means with the objective of gaining pecuniary
benefits, or gaining undue economic or other advantage for
himself or any other person. It is not necessary that the
applicant should be member of the crimes committed by the
gang leader. She would submit that for an activity to be a
'continuing unlawful activity', the activity must be prohibited
by law; it must be a cognizable offence punishable with
imprisonment of three years or more; it must be undertaken
singly or jointly; it must be undertaken as a member of an
organised crime syndicate or on behalf of such syndicate, in
respect of which more than one charge-sheet have been filed
before a competent court. Mrs.Pai would specifically rely upon
the following observations in the said judgment :-
"36. The words 'in respect of which more than one
charge-sheet have been filed' cannot go with the words 'a
member of a crime syndicate' because in that case, these
words would have read as ' in respect of whom more than one
charge-sheet have been filed'."
6. She would further rely upon the latest decision of the
Hon'ble Supreme Court in the case of Zakir Abdul Mirajkar Vs.
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State of Maharashtra & Ors.5, where the Hon'ble Apex Court
has relied upon the observations of the Division Bench of this
Court in the case of Govind Ubhe (supra) to submit that the
applicant is accused of a serious offence under the special
statute like MCOC Act and he does not deserve his release on
bail is her submission.
7. On the charge-sheet being perused, it is revealed that on
06/09/2020, at around 06.50 hours, two youths between the
age group of 25 to 30 years, driving themselves on a silver
colour motorcycle, snatched 5 grams Mangalsutra/gold chain
of Shashibai @ Sahabai Lahu Ubale, resident of Ramabai Nagar,
Ghatkopar (E), Mumbai, when she was walking on the service
road of Eastern Highway, Ghatkopar. The rider was wearing a
helmet and the pillion rider, who snatched the chain
(Mangalsutra), was wearing a mask. They forcibly pulled the
chain and in the incident, the victim sustained injuries, which
resulted into lodging of a complaint. The complaint is filed by
one Yogesh Kamble, the Constable against two unknown
persons alleging the forcible snatching of Mangalsutra.
The complainant recorded his supplementary statement,
where he stated that while attempting to fee away on being hit
5 2022 SCC OnLine SC 1092
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by a motorcycle rider, face mask fell off and the rider lost his
balance and the complainant saw his face clearly and stated
that he could clearly identify the two persons on the bike.
Shashibai succumbed to the injuries, which resulted in
invoking the offence punishable under Section 302 of IPC.
Admittedly, the applicant is not one amongst the two persons,
who indulged themselves into the act of snatching of the neck
piece from the deceased and who is responsible for her death.
However, during the course of investigation, the prosecution
relied upon the CDR, which has disclosed that prior to
commission of offence, the applicant was in touch with other
accused persons. Further, the CCTV footage is also collected
where the applicant is seen disposing off the snatched gold
articles. It is alleged that after arrest of the four accused
persons, the present applicant absconded and switched off his
mobile phone and he used a stolen mobile for the purpose of
establishing contact with the co-accused, for which another
crime is registered. The prosecution relied upon the
confessional statement of accused Nos.2 and 3 recorded before
the competent authority, which has assigned a specific role to
the present applicant of disposing off the stolen gold article.
The prosecution thus alleges that the co-accused hatched a
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conspiracy to snatch the gold chain of the deceased and
commit murder and the applicant played a very active role.
8. When the entire charge-sheet is scanned, except the CDR
of the mobile phone without the actual conversation being
revealed, there is no material to establish the conspiracy
hatched to commit the offence of robbery and murder. From
the investigation, it can be seen that the death of the deceased
was accidental and in an attempt to snatch the chain, she was
dragged, sustained injuries and succumbed to the same. Even
assuming for a moment that there was a conspiracy to rob her
of the neck piece, it cannot be said that there was a conspiracy
to commit her murder.
9. When the entire charge-sheet is perused, including the
confessional statement of accused Nos.2 and 3, the present
applicant is attributed a role of receiving the stolen property,
which would at the most, invite his conviction under Section
411 of IPC. The conspiracy to commit murder being not
brought on record, prima facie, the applicant cannot be said to
be guilty of the offence of committing murder of deceased. In
any case, the prosecution will have to establish it's case
beyond reasonable doubt by bringing cogent and reliable
evidence on record.
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10. As far as the accusation that the applicant is a member
of the organised crime syndicate, it can be seen that he is not a
participant in any of the offences, which are committed by the
gang leader or by any of the member of the organised crime
syndicate. The prosecution alleges that accused Mohammed
Yasin Hanif Khatri is the gang leader of the organised crime
syndicate and the said gang has committed series of offences,
including offence by use of violence or threat of violence or
intimidation or coercion or by other unlawful means with the
motive of gaining illegal pecuniary benefits for alleged
organised crime syndicate. The affidavit makes a reference to
the seven offences registered against the gang leader, the last
offence being the one registered at Pantnagar Police Station i.e.
C.R.No.559 of 2020 in which the provisions of the MCOC Act
are invoked. In all other six offences, there is no commonality
established as the members of the syndicate and it is very
clear that it is only for the first time, the applicant is alleged of
having committed an offence with the gang leader.
On the point, whether a commonality is necessary to be
established in order to prove that the applicant is a member of
organised crime syndicate, it is necessary to make reference to
the observations of the Hon'ble Supreme Court in the case of
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Lalit Somdatta Nagpal (supra), where the following argument
was advanced on behalf of the accused :-
"22. Mr.R.F.Nariman, appearing for the respondents in
the first two Special Leave Petitions also referred to the
provisions of Section 2(d) of MCOCA and laid special emphasis
on the expression "continuing". He urged that "continuing
unlawful activity" would necessarily mean continuous
engagement in unlawful activity where there would be a live
link between all the different offences alleged. According to
Mr.Nariman, isolated incidents spread over a period of 10
years, involving different types of offences, would not attract
the provisions of MCOCA. Such activity must be such as to
have a link from the first to the last offence alleged to have
been undertaken in an organized manner by an organized
crime syndicate. It was contended that there was nothing on
record to indicate the existence of any organized crime
syndicate for the purpose of carrying on any continuing
unlawful activity as envisaged under Section 2(d) (e) and (f)
of MCOCA."
While dealing with the said submission, the Hon'ble Apex
Court has held as under :-
"39. However, we are in agreement with the submission
that having regard to the stringent provisions of MCOCA, its
provisions will have to be very strictly interpreted and the
concerned authorities would have to be bound down to the
strict observance of the said provisions. There can be no doubt
that the provisions of the MCOCA have been enacted to deal
with organized criminal activity in relation to offences which
are likely to create terror and to endanger and unsettle the
economy of the country for which stringent measures have
been adopted. The provisions of the MCOCA seek to deprive a
citizen of his right to freedom at the very initial stage of the
investigation, making it extremely difficult for him to obtain
bail. Other provisions relating to the admission of evidence
relating to the electronic media have also been provided for. In
such a situation it is to be seen whether the investigation from
its very inception has been conducted strictly in accordance
with the provisions of the Act.
40. As has been repeatedly emphasized on behalf of all
the parties, the offence under MCOCA must comprise
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continuing unlawful activity relating to organized crime
undertaken by an individual singly or jointly, either as a
member of the organized crime syndicate or on behalf of such
syndicate by use of coercive or other unlawful means with the
objective of gaining pecuniary benefits or gaining undue
economic or other advantage for himself or for any other
person or for promoting insurgency. In the instant case, both
Lalit Somdutt Nagpal and Anil Somdutt Nagpal have been
shown to have been involved in several cases of a similar
nature which are pending trial or are under investigation. As
far as Kapil Nagpal is concerned, his involvement has been
shown only in respect of CR No.25/03 of Rasayani Police
Station, Raigad, under Sections 468, 420, 34, Indian Penal
Code and Sections 3, 7, 9 & 10 of the Essential Commodities
Act. In our view, the facts as disclosed justified the application
of the provisions of the MCOCA to Lalit Nagpal and Anil
Nagpal. However, the said ingredients are not available as far
as Kapil Nagpal is concerned, since he has not been shown to
be involved in any continuing unlawful activity. Furthermore,
in the approval that was given by the Special Inspector
General of Police, Kolhapur Range, granting approval to the
Deputy Commissioner of Police (Enforcement), Crime Branch,
C.I.D., Mumbai to commence investigation under Section
23(1) of MCOCA, Kapil Nagpal has not been mentioned. It is
only at a later stage with the registering of CR No.25/2003 of
Rasayani Police Station, Raigad, that Kapil Nagpal was roped
in with Lalit Nagpal and Somdutt Nagpal and permission was
granted to apply the provisions of the MCOCA to him as well
by Order dated 22nd August, 2005.
41.In addition to the above, a glance at the permission sought
by P.I.L.C.B., Raigad, on 18 th August, 2005 seeking permission
for registering an offence under Section 1(ii) MCOCA 1999
against Lalit Nagpal, Anil Nagpal, Kapil Nagpal and one
Parasnath Ramdular Singh will reveal that such permission
was being sought for, as far as Kapil Nagpal is concerned, in
respect of an offence allegedly under Section 63 of the Sales
Tax Act, which in our opinion would not attract the provisions
of the MCOCA."
11. Even in the case of Govind Ubhe (supra), the following
observations of the Division Bench are very relevant :-
"37. But even otherwise, if all provisions are read
together we reach the same conclusion. Section 2(1)(d) which
defines `continuing unlawful activity' sets down a period of 10
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years within which more than one charge- sheet have to be
filed. The members of the crime syndicate operate either
singly or jointly in commission of organized crime. They
operate in different modules. A person may be a part of the
module which jointly undertakes an organized crime or he
may singly as a member of the organized crime syndicate or
on behalf of such syndicate undertake an organized crime. In
both the situations, the MCOCA can be applied. It is the
membership of organized crime syndicate which makes a
person liable under the MCOCA. This is evident from section
3(4) of the MCOCA which states that any person who is a
member of an organized crime syndicate shall be punished
with imprisonment for a term which shall not be less than five
years but which may extend to imprisonment for life and shall
also be liable to fine, subject to a minimum of fine of Rs.5
lakhs. The charge under the MCOCA ropes in a person who as
a member of the organized crime syndicate commits
organized crime i.e. acts of extortion by giving threats, etc. to
gain economic advantage or supremacy, as a member of the
crime syndicate singly or jointly. Charge is in respect of
unlawful activities of the organized crime syndicate.
Therefore, if within a period of preceding ten years, one
charge-sheet has been filed in respect of organized crime
committed by the members of a particular crime syndicate,
the said charge-sheet can be taken against a member of the
said crime syndicate for the purpose of application of the
MCOCA against him even if he is involved in one case. The
organized crime committed by him will be a part of the
continuing unlawful activity of the organized crime syndicate.
What is important is the nexus or the link of the person with
organized crime syndicate. The link with the `organized crime
syndicate' is the crux of the term `continuing unlawful
activity'. If this link is not established, that person cannot be
roped in."
12. Emphasis of the authoritative pronouncement is on the
nexus or the link of the person with the organised crime
syndicate, which has indulged itself into a continuing unlawful
activity. If this link is not established, surely the person
cannot be roped in is the prevailing position of law.
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13. In Zakir Mirajkar (supra), the said position has been
clearly reiterated in para 78 and in para 79, further clarified
the settled position of law that the persons who are alleged to
members of an organised crime syndicate need not have more
than one charge-sheet filed against them in an individual
capacity and the charge-sheets with respect to the organized
crime syndicate are sufficient to fulfill the condition in Section
2(1)(d). However, this observation has to be read in the
backdrop of the observations of the Division Bench of this
Court in the case of Govind Ubhe (supra), where it is necessary
to establish the link between a member with the organised
crime syndicate.
The applicant has never participated in any unlawful
activity committed by any member, singly or jointly, on behalf
of the syndicate and, therefore, an individual crime in which
he is charged, shall not be considered to be sufficient to sustain
his conviction under the MCOC Act. As far as other Sections of
IPC with which the applicant is charged, he may take the
consequences on being established that he is guilty of sharing
the common intention of committing an activity with the co-
accused, which resulted in death of the deceased and that
there was any intention to cause the death. In the wake of the
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above, the applicant need not be further incarcerated.
Further, the applicant does not have any antecedents to his
credit and, therefore, deserves his release on bail.
14. Needless to state that the observations made above are,
prima facie, in nature and limited to the extent of adjudication
of the present application and the learned Judge trying the
applicant for the offences with which he is charged, shall not
get infuenced by the above observations, in any manner.
: ORDER :
(a) Application is allowed.
(b) Applicant - Shakir Khwaja Peer Sayyed shall be
released on bail in connection with C.R.No.559 of 2020 registered with Pantnagar Police Station on furnishing P.R. Bond to the extent of Rs.30,000/- with one or more sureties in the like amount.
(c) The applicant shall mark his attendance before the concerned police station on first Monday of every trimester between 3.00 p.m. to 5.00 p.m. till framing of charge and, thereafter, shall abide by the directions issued by the trial Court.
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(d) The applicant 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 him from disclosing the facts to Court or any Police Officer. The applicant shall not tamper with evidence.
(e) On being released on bail, the applicant shall furnish his contact number and residential address to the Investigating Officer and shall keep him updated, in case there is any change.
( SMT. BHARATI DANGRE, J.)
15. At this stage, Ms.Rutuja Ambekar, learned A.P.P. on behalf of the learned Public Prosecutor, makes a request to stay the above over.
The said request is declined, since I have recorded a finding that the material in the charge-sheet is, prima facie, insufficient to detain the applicant further, he being incarcerated almost over two years, on the basis of the scanty material compiled in the charge-sheet.
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