Bombay High Court
Shiban Shafi Shaikh vs The State Of Maharashtra on 11 August, 2022
Author: N.J.Jamadar
Bench: N.J.Jamadar
38 ba 3804 of 2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.3804 OF 2021
Shiban Shafi Shaikh ... Applicant
SWAROOP
SHARAD versus
PHADKE
Digitally signed by
The State of Maharashtra ... Respondent
SWAROOP
SHARAD PHADKE
Date: 2022.08.11
Mr. Aniket Nikam i/by Mr. Vivek N. Arote, for Applicant.
17:09:00 +0530
Mr. Y.Y.Dabke, APP, for State.
CORAM: N.J.JAMADAR, J.
RESERVED ON : 13th JULY, 2022
PRONOUNCED ON : 11th AUGUST, 2022
P.C.
1. The Applicant who is arraigned in C.R.No.555 of 2020 registered with
Upnagar Police Station, Nashik for the offences punishable under Sections 120B, 302,
395, 397, 143, 147, 148, 149 and 201 of the Indian Penal Code, 1860 read with Sections
3(25) and 4(25) of the Arms Act and Section 3(1)(i), (ii), 3(2), 3(3) and 3(4) of the
Maharashtra Control of Organized Crime Act, 1999 along with 23 co-accused and
three children in conflict with law, has preferred this Application to enlarge him on
bail.
2. The indictment against the Applicant and the co-accused can be stated
as under :
2.1 Sagar Suresh Mhaske - Accused No.9 is the leader of an organized crime
syndicate. He along with his brother Harsh @ Tonu Suresh Mhaske - Accused No.6
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and Sahil @ Monu Suresh Mhaske - Accused No.10 have formed an organized crime
syndicate, and have been indulging in grave offences of causing grievous hurt, attempt
to commit murder, extortion and theft etc. Sagar Suresh Mhaske - Accused No.9,
Sahil Suresh Mhaske - Accused No.10 and his associates are always armed with deadly
weapons.
2.2 A year and half prior to the occurrence, Rameshwar Sitaram Sisode, first
informant, and his cousin Yogesh (the deceased) had confronted Harsh Mhaske -
Accused No.6 while he and his associates were stealing petrol from the motorcycles.
Thus, the above named accused had a grudge against the first informant and his
deceased cousin. Sagar Mhaske - Accused No.9, Harsh Mhaske - Accused No.6 and
Sahil Mhaske - Accused No.10 and their associates Uddesh Chandel, Babu Maniar,
Raju John Kerala and others had assaulted the first informant by means of scythe and
chopper at Subhash Road, Nashik. During 7-8 months proceeding the occurrence,
Harsh Mhaske - Accused No.6, had a scuffle with deceased Yogesh at Teligalli,
Devlali, Nashik. Reports were lodged against the accused by the first informant and
the deceased Yogesh at Nashik Road and Upnagar Police Stations. Harsh Mhaske -
accused No.6, thus, had a grudge against the first informant and the deceased and had
threatened to eliminate the deceased.
2.3 On 15th November, 2020 while the deceased Yogesh was chatting with
his friend Suraj Kahane at Khodade Chowk, Devlali, the accused Harsh @ Tonu
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Mhaske (Accused No.6), Sattu Rajput (Accused No.6), Maruti Ghorpade (Accused
No.2), Yogesh Bodake (Accused No.8), Rohit @ Bhurya (Accused No.1) and their 3 to
4 other associates came thereat, armed with deadly weapons. They formed an
unlawful assembly. In prosecution of the common object of the said assembly, the
accused unleashed assault upon the deceased by means of scythes and chopper. The
deceased ran towards the Dargah. The assailants chased and caught hold of the
deceased in front of a dairy farm and gave blows by means of deadly weapons. One of
the assailants threatened the deceased's friend Suraj Badrinarayan Kahane and
snatched away his Scooty moped. As persons gathered thereat, the assailants fled
away on the said Scooty, and autorikshaw and Platina motorcycle, by which they had
reached the scene of occurrence. The deceased was initially shifted to Bitco Hospital
and, thereafter, civil hospital, Nashik. The deceased was declared dead.
2.4 Mr. Rameshwar Sisode, the first informant approached the police and
lodged the report. Investigation commenced. During the course of investigation, in
all 19 accused including the Applicant, came to be arrested. Post completion of
investigation, chargesheet came to be lodged against 19 accused alongwith 5
absconders and 3 children in conflict with law.
2.5 The investigation revealed that Sagar - accused No.9 had formed an
organized crime syndicate. A number of offences were committed by the members of
the said organized crime syndicate either singly or jointly as the members thereof.
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The Applicant was also a member of the said organized crime syndicate. The
Applicant and the co-accused Sattu (Accused No.5), Maruti (Accused No.2), Sahil
(Accused No.10), Rohit (Accused No.1), Akshay Parche (Accused No.12), Anuj
(Accused No.15), Izaq (Accused No.16), Bobby (Accused No.18) and Behenwal alis
Changya (Accused No.20) and others were around the scene of occurrence when the
deceased was assaulted by the assailants. Thus, with the prior approval of the
competent authority, offences punishable under the Maharashtra Control of
Organized Crime Act, 1999 (the MCOC Act, 1999) were added and, post completion
of investigation, with the previous sanction of the competent authority under Section
23 of the MCOC Act, 1999, cognizance of the offences punishable under MCOC Act,
1999 has been taken by the Special Court.
3. The Applicant has preferred this Application with the assertion that
there is no material to connect him with the alleged offences. No role of assaulting the
deceased has been attributed to the Applicant. Neither the first informant nor any of
the prosecution witnesses have stated about the Applicant being one of the members
of the unlawful assembly in prosecution of the common objection of which the
offences were allegedly committed. The only role attributed to the Applicant is that of
having been seen in the vicinity of the spot, where the deceased was assaulted, at the
time of occurrence. Even the said role has been attributed by only one of the
witnesses vaguely. It is further asserted that there is no material to show that the
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Applicant had committed offences as a member of the organized crime syndicate.
Thus, the invocation of the provisions contained in the MCOC Act, 1999 against the
Applicant is unsustainable. The Applicant is a young boy of 21 years. Investigating is
complete. Further detention of the Applicant is, thus, unwarranted.
4. The prosecution has resisted the prayer by filing an Affidavit in Reply. It
is contended that the Applicant is a member of the organized crime syndicate headed
by Sagar - Accused No.9. Three crimes, apart from the offences in question, have
been registered against the Applicant at Upnagar Police Station, Nashik. The said
fact coupled with the fact that as many as six crimes have been registered against Sagar
(Accused No.9) the leader of the organized crime syndicate, renders the invocation of
the provisions of the MCOC Act, 1999 wholly sustainable. Thus, the bar under
Section 21(4) of the MCOC Act, 1999 comes into play.
5. It is further contended that one of the witnesses Monu Sanjay Verma has
categorically stated that when the deceased was being assaulted by the co-accused -
assailants, he had seen the Applicant and other co-accused, whom he had known as
the members of the gang headed by Sagar - accused No.9, lingering around. One of
the co-accused Yogesh Shravan Bodke - accused No.8, in his confession, recorded
under Section 18 of the MCOC Act, 1999, has also stated that, as per the plan, the
Applicant and the co-accused were to be around when the deceased was to be
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assaulted. Therefore, there is adequate material to show the complicity of the
Applicant. Hence, the Applicant may not be released on bail.
6. I have heard Mr. Nikam, learned Counsel for the Applicant, and Mr.
Dabke, learned APP for the State at some length. With the assistance of the learned
Counsel for the parties, I have perused the report under Section 173 of the Code of
Criminal Procedure, 1973 (the Code) and the documents annexed with it. Mr. Nikam,
learned Counsel for the Applicant strenuously submitted that it is virtually a case of no
evidence against the Applicant. Mr. Nikam laid emphasis on the fact that Mr.
Rameshwar Sitaram Sisode, the first informant, had known all the accused from
before. Yet Mr. Rameshwar claimed to have seen the deceased being assaulted by
Harsh @ Tonu (Accused No.6), Sattu (Accused No.5), Maruti (Accused No.2),
Yogesh (Accused No.8), Sahil (Accused No.10), Rohit @ Bhurya (Accused No.1) and
their 3 to 4 other associates only. The Applicant was not named as one of those
persons who allegedly formed unlawful assembly and assaulted the deceased. Even
Suraj Kahane, with whom the deceased was allegedly chatting at the time of the
occurrence, did not name the Applicant as one of the assailants or members of the
unlawful assembly. Mr. Kiran Gosavi who claimed to have taken the deceased to the
hospital, stated that the deceased made a declaration to the effect that the accused
Harsh @ Tonu (Accused No.6) and his brothers assaulted him.
7. Mr. Nikam would urge that on the own showing of the prosecution, the
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role attributed to the Applicant is that of being present around the scene of
occurrence. Two of the witnesses namely Suraj Kumavat and Monu Sanjay Varma
professed to state about the said fact. One of them, Suraj, does not name the
Applicant. Monu named the Applicant along with the other co-accused. It was thus
submitted that in the absence of any overt act attributed to the Applicant, it cannot be
said that a prima face case is made out against the Applicant.
8. In opposition to this, Mr. Dabke, learned APP placed strong reliance on
the statement of Monu Varma that the Applicant was one of the members of the gang
who were seen around the scene of occurrence. Mr. Dabke banked upon the
confession allegedly made by the co-accused Yogesh Bodke under Section 18 of the
MCOC Act, 1999 to the effect that as per the plan, the Applicant and the co-accused
Maruti (Accused No.2), Rohit (Accused No.1), Akshay (Accused No.12), Babu
Maniar (Accused No.13), Anuj (Accused No.15), Sahil (Accused No.10), Sattu
(Accused No.5) and their associates were to be around the place where deceased
Yogesh was to be assaulted and ready to help, if warranted. Mr. Dabke would urge that
the antecedents of the Applicant, manifested in registration of three crimes, also
militate against the claim of the Applicant that he has no concern with the alleged
organized crime syndicate headed by Sagar - Accused No.9.
9. I have given anxious consideration to the rival submissions. At the
outset, in view of the invocation of the provisions contained in the MCOC Act, 1999,
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the applicability of the bar under Section 21(4) of the MCOC Act, 1999, is required to
be appreciated. Sub-Section (4) of Section 21 incorporates an interdict against release
on bail of a person accused of an offence punishable under the MCOC Act, 1999
unless the Court forms an opinion that the said person is not guilty of the offence for
which he is arraigned and he is not likely to commit offence upon his release on bail.
10. The nature and import of the restrictions on the grant of bail envisaged
by Section 21(4) of the MCOC Act, 1999 was expounded by the Supreme Court in the
case of Ranjitsing Brahmajeetsing Sharma V/s. State of Maharashtra and Anr. 1. The
following observations of the Supreme Court are instructive and hence extracted
below :
"44. The wording of Section 21(4), in our opinion, does not lead to the
conclusion that the court must arrive at a positive finding that the applicant
for bail has not committed an offence under the Act. If such a construction
is placed, the court intending to grant bail must arrive at a finding that the
applicant has not committed such an offence. In such an event, it will be
impossible for the prosecution to obtain a judgment of conviction of the
applicant. Such cannot be the intention of the legislature. Section 21(4) of
MCOCA, therefore, must be construed reasonably. It must be so construed
that the court is able to maintain a delicate balance between a judgment of
acquittal and conviction and an order granting bail much before
commencement of trial. Similarly, the court will be required to record a
finding as to the possibility of his committing a crime after grant of bail.
However, such an offence in futuro must be an offence under the Act and not
any other offence. Since it is difficult to predict the future conduct of an
accused, the court must necessarily consider this aspect of the matter having
regard to the antecedents of the accused, his propensities and the nature and
1 (2005) 5 SCC 294
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manner in which he is alleged to have committed the offence.
45.It is, furthermore, trite that for the purpose of considering an application
for grant of bail, although detailed reasons are not necessary to be assigned,
the order granting bail must demonstrate application of mind at least in
serious cases as to why the applicant has been granted or denied the privilege
of bail.
46.The duty of the court at this stage is not to weigh the evidence
meticulously but to arrive at a finding on the basis of broad probabilities.
However, while dealing with a special statute like MCOCA having regard to
the provisions contained in sub-section (4) of Section 21 of the Act, the
Court may have to probe into the matter deeper so as to enable it to arrive at
a finding that the materials collected against the accused during the
investigation may not justify a judgment of conviction. The findings
recorded by the court while granting or refusing bail undoubtedly would be
tentative in nature, which may not have any bearing on the merit of the case
and the trial court would, thus, be free to decide the case on the basis of
evidence adduced at the trial, without in any manner being prejudiced
thereby."
11. On the aforesaid touchstone, the nature of the material pressed into
service against the Applicant is required to be appreciated. Undisputably, the first
informant has not named the Applicant as one of the persons with whom either he or
the deceased had any quarrel in the past, or there was any animosity between them.
Nor the first informant named the Applicant as either one of the assailants or the
members of the unlawful assembly in prosecution of the common object of which the
offences were committed. Nor witnesses Suraj, Kiran and Sopan, who claimed to have
witnessed the occurrence, have named the Applicant as one of the assailants.
12. In fact, the prosecution does not profess to attribute the role of assault to
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the Applicant. The prosecution, however, alleges that the conspiracy was hatched to
eliminate the deceased. In pursuance of the said conspiracy, arms were procured,
watch was kept on the deceased and arrangements were made to ensure that the
friends of the assailants were around the scene of occurrence when the deceased was
assaulted. The presence of the Applicant as one of the persons who was to be present
to render help, if required, was sought to be established by banking upon the
statements of Suraj and Monu. Suraj claims to have witnessed the occurrence wherein
Tonu (Accused No.6) and his associates were assaulting the deceased by means of
deadly weapons and Sagar (Accused No.9) threatened the persons not to come to the
rescue of the deceased by brandishing revolver. He claimed to have seen the associates
of the assailants namely , Sahil (Accused No.10), Rohit (Accused No.1), Sattu
(Accused No.5), Maruti (Accused No.2), Akshay (Accused No.12), Anuj (Accused
No.15), Goluappa (Accused No.16), Bobby (Accused No.18) and Changa (Accused
No.20), around the scene of occurrence. Suraj did not name the Applicant. Monu,
however, named the Applicant along with the above named co-accused who were seen
in the vicinity of the scene of occurrence.
13. In addition, the prosecution has relied upon the statement of Yogesh, co-
accused, recorded under Section 18 of the MCOC Act, 1999, wherein the co-accused
states that it was planned that the Applicant and the co-accused were to remain
present to assist the assailants while they assaulted the deceased. It is imperative to
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note that Yogesh does not state that at the time of the occurrence, as planned, the
Applicant was in fact present around the scene of occurrence. In the statement of the
co-accused, Kalamyala (Accused No.4), in whose autorikshaw the assailants had
reached Khodade Square, the Applicant was not named. Nor Sahil (Accused No.10)
states that the Applicant was one of the persons who was to be around the scene of
occurrence, though he named Maruti (Accused No.2), Golu (Accused No.16), and
Babu (Accused No.18) as their associates whom he had seen around the scene of
occurrence.
14. Prima facie, at this stage, it appears that the only material that is sought
to be pressed into service against the Applicant is the statement of Monu Varma. The
fact that neither any of the eye witnesses state about the presence of the Applicant as
one of the friends of the assailants, who were present to render help, if required, and
that none of the three co-accused whose confessions under Section 18 of the MCOC
Act, 1999 have allegedly been recorded, names the Applicant as the person who was
around the scene of occurrence at the time the assailants assaulted the deceased,
deserves due consideration. Evidently, it appears that the prosecution case qua the
Applicant hinges on the solitary statement of Monu Varma. In the absence of any
other material to connect the Applicant either with the offences or with the assailants,
the question as to whether such a statement is sturdy enough to bear the weight of
complicity of the Applicant in the alleged subject offences furnishes a prima facie
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ground for entitlement for bail.
15. This takes me to the aspect of invocation of the provisions of the MCOC
Act, 1999 against the Applicant. The prosecution alleges as many as six crimes, apart
from the offence in question, have been registered against Sagar Suresh Mhaske
(Accused No.9) - gang leader. The antecedents of the Applicant, according to the
prosecution, indicate that the Applicant has also been indulging in continuous
unlawful activities. In paragraph No.13 of the Affidavit in Reply, the prosecution
contends as under :
"13. That the Accused Shiban Shafi Shaikh is the gang member of the
same crime syndicate and there are three cases against him, he was committed
this crime when he was bail in following crimes.
Sr. No. Police Station C.R.No. And Sections Status
1 Upnagar 32/2017, Sec. 143, 147, 149 of RCC No.160 of 2017
IPC
2 Upnagar 210/2018, Sec. 354 of IPC Special Case No.61 of
2020
3 Upnagar 293/2018 Sec. 392 of IPC RCC No.189 of 2019
16. Mr. Dabke, learned APP, banking upon the aforesaid antecedents of the
Applicant would urge that the invocation of MCOC Act, 1999 qua the Applicant as a
member of the organized crime syndicate, led by Sagar Suresh Mhaske - Accused
No.9, can hardly be questioned. I am afraid mere registration of the offences against a
person and lodging of the chargesheet therein, in the past, is sufficient to rope in such
person for having committed an organized crime. There ought to be prima facie
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material to indicate that the offences were committed as a member of the organized
crime syndicate, either singly or jointly. Undoubtedly, it is not the requirement of law
that two or more chargesheets for the offences which entail punishment for more than
three years ought to have been filed against each of the accused. However, the
existence of nexus with the organized crime syndicate cannot be said to be surplusage.
17. A useful reference in this context can be made to a judgment of a learned
Single Judge of this Court in the case of Prafulla s/o Uddhav Shende V/s. State of
Maharashtra2 wherein the ingredients of the offence of organized crime have been
succinctly culled out as under :
29.Since the definitions, though intertwined in a cyclic order, are clear and
unambiguous, it would follow that each ingredient in the definitions, or the
alternative thereof provided by the definitions themselves, would have to be
proved. Viewed thus, for charging a person of organized crime or being a
member of organized crime syndicate, it would be necessary to prove that
the persons concerned have indulged in :
(i) an activity,
(ii)which is prohibited by law,
(iii) which is a cognizable offence punishable with imprisonment for
three years or more,
(iv) undertaken either singly or jointly,
(v) as a member of organized crime syndicate i.e. acting as a syndicate or a
gang, or on behalf of such syndicate.
(vi) (a) in respect of similar activities (in the past) more than one
charge sheets have been filed in competent court within the preceding period
of ten years,
2 (2009) ALL MR (Cri) 870
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(b) and the court has taken cognizance of such offence.
(vii) the activity is undertaken by :
(a) violence, or
(b) threat of violence, or intimidation or
(c) coercion or
(d) other unlawful means.
(viii) (a) with the object of gaining pecuniary benefits or gaining
undue or other advantage or himself or any other person, or
(b) with the object of promoting insurgency.
43. This fortifies the conclusion that mere proof of filing charge
sheets in the past is not enough. It is only one of the requisites for
constituting offence of organized crime. If only the past charge sheets were
to be enough to constitute offence of organized crime, it could have offended
the requirement of Article 20(1) of the Constitution and possibly Article
20(2) as well, (and in any case Section 300 Cr.P.C.) Had these judgments of
the Supreme Court and Division Benches of this Court been cited before the
learned Single Judge deciding Amarsingh V/s. State (2006 ALL MR (Cri.)
407) the learned Single Judge, without doubt, would not have held that the
matter was simply one of an arithmetical equation. The said judgment
cannot be reconciled with the judgments of division benches in Jaisingh V/s.
State 2003 ALL MR (Cri.) 1506 and Bharat Shah V/s. State, 2003 ALL MR
(Cri.) 1061, which I am bound to follow.
44. ...........Therefore, since the previous criminal history of the
applicants denotes that they had been or are being separately charged/tried
for those offence before competent courts, there is no question of such
offences constituting offence of organized crime." (emphasis supplied)
18. Thus, the mere fact that there are criminal antecedents would not by itself
furnish a justification to invoke the provisions of the MCOC Act, 1999 if the pre-
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requisites spelled out by the definition of organized crime, are not prima facie made
out. The crimes registered against the Applicant are required to be viewed through the
aforesaid prism.
19. I have perused the copies of the chargesheets in each of the aforesaid crimes
registered against the Applicant. In C.R.No.32 of 2017, the Applicant was arraigned
with other persons as a child in conflict with law. The crux of the allegations is that
10-12 persons accosted the first informant - Sagar Dharmendra Ujjainwal and his
brother Rahul and assaulted them. The accused No.1 Vijay Bahenwal @ Changya
(Accused No.20 herein) allegedly gave a blow by means of a poker on the back of the
first informant and fled away. In C.R.No.210 of 2018, the Applicant allegedly outraged
the modesty of the victim therein and also threatened and intimidated the victim and
her father. Whereas C.R.No.293 of 2018 for committing robbery was initially lodged
against an unknown person.
20. The nature of the accusation in the aforesaid crimes registered against the
Applicant does not indicate that the Applicant has been arraigned as co-accused with
Sagar Suresh Mhaske (Accused No.9) - gang leader in any of the offences. Last two
crimes registered against the Applicant are of totally diverse nature. In the first crime
i.e. C.R.No.32 of 2017, one of the co-accused in this case - Changya (Accused No.20)
is shown as the principal accused. The Applicant has been shown as the
child in conflict with law in the said case.
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21. In the aforesaid view of the matter, at this juncture, the material on record,
prima facie, does not indicate that the Applicant committed the aforesaid offences as a
member of the organized crime syndicate led by Sagar Suresh Mhaske - accused No.9.
The aforesaid factors, if considered in juxtaposition with the prima facie fragile nature
of the material pressed into service against the Applicant of being around the scene of
occurrence when the deceased was done to death by the assailants, in my view, the
interdict contained in Section 21(4) of the MCOC Act, 1999 may not operate with full
force qua the Applicant.
22. Practically the investigation is complete for all intent and purpose. Having
regard to the number of the accused and the witnesses which the prosecution proposes
to examine, it is very unlikely that the trial can be commenced and concluded within a
reasonable period. The Applicant is a young boy of 21 years, and a prolonged
incarceration may entail deleterious consequences. Further detention of the Applicant
as an under-trial prisoner, in the circumstances of the case does not seem to be either
warranted or justifiable. I am, therefore, persuaded to exercise the discretion in favour
of the Applicant.
23. Hence, the following order :
ORDER
(i) The Application stands allowed.
(ii) The Applicant - Shiban Shafi Shaikh be released on bail in C.R.No.555 SSP 16/18 38 ba 3804 of 2021.doc of 2020 registered with Upanagar Police Station, Nashik, for the offences punishable under Sections 120B, 302, 395, 397, 143, 147, 148, 149 and 201 of the Indian Penal Code, 1860 read with Sections 3(25) and 4(25) of the Arms Act and Section 3(1)(i),
(ii), 3(2), 3(3) and 3(4) of the Maharashtra Control of Organized Crime Act, 1999, on furnishing a PR bond in the sum of Rs.50,000/- and one or two sureties in the like amount to the satisfaction of the learned Special Judge, Nashik.
(iii) The Applicant shall mark his presence at Upanagar Police Station on the first Monday of every month in between 10.00 a.m. to 12.00 noon for a period of one year and, thereafter, first Monday of January, April, July, and October of each year till the completion of the trial.
(iv) The Applicant shall not tamper with the prosecution evidence and/or give threat or inducement to any of the prosecution witnesses.
(v) The applicant shall not contact any of the co-accused and indulge in the activities identical to the one for which he has been arraigned in this case.
(vi) The Applicant shall furnish his permanent residential address and contact details to the Police Inspector, Upnagar Police Station, within a period of one week of his release from the prison, and intimate the change, if any.
(vii) The Applicant shall regularly attend the proceedings before the jurisdictional court.
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(viii) By way abundant caution, it is clarified that the observations hereinabove are confined to the consideration of the entitlement for bail and they may not be construed as an expression of opinion on the guilt or otherwise of the applicant or co-accused and the learned Special Judge shall not be influenced by any of the observations in further proceedings in the Special Case arising out of C.R.No.555 of 2020 .
(ix) All concerned to act on an authenticated copy of this order.
( N.J.JAMADAR, J. ) SSP 18/18