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6. An affidavit-in-reply is filed by the respondent. It is contended that the invocation of the provisions contained in MCOC Act is wholly justifiable. The statements of Harshal Mane recorded before the Police and before the learned Magistrate under Section 164 of the Code squarely incriminate the applicant. The applicant has also been identified in the Test Identification Parade by a witness Philip Bhanbal. In addition, the applicant has made a confession under Section 18 of the MCOC Act. Therefore, it cannot be said that there is no material to either invoke the provisions contained in MCOC Act or to connect the applicant with the subject offence.

9. Mr. Deshpande would further urge that there is next to no evidence regarding the involvement of the applicant in the alleged incident of assault and dacoity, in the month of April, 2017. The claim of Harshal Mane of having seen the applicant as one of the assailants is fraught with infirmities. Even the alleged confession made by the applicant and recorded under Section 18 of the MCOC Act is of no avail to the prosecution as it cannot be said to be a confession, in the strict sense of the term. As the applicant is in custody since September, 2017, even otherwise the applicant deserves to be enlarged on bail, submitted Mr. Deshpande.

-BA759-2021.DOC

12. The aforesaid observations govern the case of the applicant with equal force. Nonetheless, I am inclined to independently evaluate the material against the applicant through the prism of entitlement for bail as the learned APP sought to bank upon the statement of Harshal Mane and the identification of the applicant by witnesses Harshal Mane and Philip Bhanbal and the statement made by the applicant under Section 18 of the MCOC Act to bolster up the submission that the role of the applicant stands on a different pedestal.

17. The identification of the applicant by Harshal Mane and Philip Bhanbal in the TI Parade, prima facie, does not constitute a strong incriminating circumstance. At best, in the context of omnibus allegations, the presence of the applicant as a member of the unlawful assembly can said to have been made out.

-BA759-2021.DOC

18. The reliance sought to be placed by the learned APP on the statement of the applicant recorded under Section 18 of the MCOC Act does not seem to advance the cause of the prosecution. I have carefully perused the statement of the applicant. The entire statement appears to be exculpatory in nature. The applicant admits neither the commission of the offences nor the facts which constitute the offence. Prima facie, the statement does not fulfill the requirements of a confession, qua the applicant.