2608ba445.11.odt 1/7 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION (BA) NO. 445 OF 2011 Irfan Khan Sharif Khan and Sharif Khan Ashikali Khan : APPLICANTS -: Versus :- The State of Maharashtra : RESPONDENT ..................................................................................................................................................................... Shri M. Badar, Advocate for applicants. Shri S. S. Doifode, A.P.P. for the State. ............................................................................................................................ CORAM : U. V. BAKRE, J. DATE OF RESERVING ORDER : 25TH AUGUST, 2011 DATE OF PROUNCEMENT OF ORDER : 26TH AUGUST, 2011 O R D E R 1. The applicants, who have been arrested on 16/4/2011 in Crime No. 63/11 registered for offence punishable under Sections 379, 170, 395 and 120B of the Indian Penal Penal Code (for short, I.P.C.) and Section 3 of the Maharashtra Control of Organised Crime Act, 1999 (for short, MCOCA), have filed this application for bail after having failed to get bail from the Special Court under MCOCA. 2. Upon the complaint filed by one Sunanda Mahavir, on 23/3/2011, the offence came to be registered at Police Station Rajapeth initially under Sections 379, 2608ba445.11.odt 2/7 120B and 170 of I.P.C. The allegation made by Sunanda Mahavir was that while she was proceeding from the road, two boys aged between 22 to 25 years came to her pretending that they are policemen and said that there was a dacoity at the nearby place where the police officers were present and that they are going at that place and for safety, she should remove her gold ornaments. Sunanda Mahavir has further stated that the said two persons broke her glass bangles and then took out the gold bangles from her person and made show of putting those ornaments in her purse and left. The complainant, after reaching her destination, opened the purse and found that her gold ornaments worth Rs.1,89,000/- were missing. 3. During the investigation it was found that the ornaments were forcibly removed and that more than five persons were involved in the crime, in consequence of the criminal conspiracy, therefore, Section 395 of I.P.C. was added. Further, during the investigation, it was noticed that there was syndicate/gang involving more persons headed by one Imran Irani and that the members of the said syndicate were engaged in the activities of organised crime of similar nature. Hence, sanction from the Competent Authority was obtained on 7/5/2011 and the provisions of MCOCA were invoked and Section 3 of MCOCA was added to the crime. 4. The applicants claim to be innocent and that they are wrongly arrested while they were sitting in the house of the younger brother of applicant No.2, namely Yusufkhan, alleging that the Irani sects of the residence of Ghatkopar are involved in impersonation and theft of aged persons. The applicants were in Arthur Road Jail in connection with the said offence and were brought on remand to Rajapeth Police 2608ba445.11.odt 3/7 Station at Amravati. The applicants have further stated that Section 395 of I.P.C. and Section 3 of MCOCA are not at all applicable and at the most, it may be Section 379 of I.P.C. which may be applicable, for which the presence of the applicants in custody is not required. 5. The respondent-State has filed reply vehemently opposing the application. 6. Heard arguments. 7. Learned Advocate Mr. M. Badar argued for a considerable time on various aspects and he has relied upon various rulings, viz. : (i) State of Maharashtra and Ors. Vs. Lalit Somdatta Nagpal and Anr. - 2007 CRI. L. J. 1678; (ii) Ranjitsing Brahmajeetising Sharma Vs. State of Maharashtra and another – 2005 CRI. L. J. 2533; (iii) Chenna Boyanna Krishna Yadav Vs. State of Maharashtra and Anr. - 2007 CRI. L. J. 782 (1); (iv) State of Maharashtra Vs. Rahul Ramchandra Taru – 2011 ALL MR (Cri) 2100, and (v) Sherbahadur Akram Khan and others Vs. State of Maharashtra – [2007 (1) Mh.L.J. (Cri.) 1]. 2608ba445.11.odt 4/7 8. I have perused the case papers made available to me by the learned A.P.P. and have also gone through the citations relied upon by the applicants. 9. The complaint lodged by Sunanda Mahavir reveals that two persons of the age group 22 to 25 years broke her glass bangles and removed the gold bangles and stole away the said bangles as well as other gold ornaments from her purse, all worth Rs.1,89,000/-. 10. Learned Advocate Mr. Badar argued that applicant No.1 is 22 years old and applicant No.2 is 55 years old, and therefore, by no stretch of imagination, they can be taken as culprits. However, at this stage, I am not inclined to consider the age factor since the age can be hidden. 11. The statement of goldsmith reveals that accused Nadar Irani, Imran Irani and two others sold gold ornaments to him and he melted the same. 12. The motor vehicle- Tata Sumo bearing registration No. MH-04 CT 3606 has been seized, which vehicle was used by the accused persons for running away from the spot, as is revealed from the statement of the driver of the said vehicle. 13. The case papers reveal that the applicants and eight others are allegedly involved in the said Crime No.63/11, which involves Section 3 of MCOCA. 14. In terms of Section 21(4) of MCOCA, apart from the opportunity being 2608ba445.11.odt 5/7 given to the learned Public Prosecutor to oppose the application, two more conditions have to be fulfilled and they are; The satisfaction of the Court that there are reasonable grounds for believing that the alleged accused is not guilty of the offence under the Act and that he is not likely to commit any offence while on bail. Thus, merely showing prima-facie grounds about not being guilty, would not help the applicants and the necessity is to show reasonable grounds about their innocence. 15. Section 2(e) of MCOCA defines “organised crime” to mean any continuing unlawful activity by an individual, singly or jointly, either as member of an organized crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with objective of gaining pecuniary benefits , or gaining undue economic or other advantage for himself or any other person or promoting insurgency. 16. Section 2(d) of MCOCA defines “continuing unlawful activity” to mean an activity prohibited for the law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, undertaken either singly or jointly, as a member of an organised crime syndicate on on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a competent Court within the preceding period of ten years and that Court have taken cognizance of such offence. 2608ba445.11.odt 6/7 17. Section 2(f) defines “organised crime syndicate” to mean a group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulge in activities of organised crime and Section 3 of MCOCA provides for punishment for organised crime. 18. In the case papers made available to me by the learned A.P.P., there is a list of several cases in which the syndicate members were previously involved. At least in two cases, both the applicants are accused persons along with others and the copies of charge-sheets are available in the case papers. 19. In the case papers, there are statements of two of the co-accused namely, Sagar Khose and Wasim Irani recorded by the Assistant Commissioner of Police, who has been duly authorised by the Commissioner of Police and Deputy Inspector General of Police, Amravati City to conduct investigation of the case under Section 23(1)(a) of MCOCA. Under Section 18 of MCOCA, the confession made to such Police Officers are admissible against the accused, co-accused, abettor or conspirator. 20. The statements of Sagar Khose and Wasim Irani, prima-facie, prove the involvement of the present applicants and others in Crime No.63/11. 21. Therefore, there is prima-facie evidence against the applicants. There is no reasonable ground for believing that the applicants are not guilty of the said offence. Since the applicants are previously involved in other crimes, there is 2608ba445.11.odt 7/7 reasonable ground for believing that they may commit similar offence, if released on bail. 22. As argued by the learned A.P.P. Mr. Doifode, the investigation is yet to be completed. 23. There are six accused persons who have been arrested, but four are still absconding. The offence is of the serious nature being against the interest of the society. 24. No case is, therefore, made out for bail, at this stage. 25. Hence, the application is rejected. JUDGE wwl