MP 1 BA879_11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.879 OF 2011 Dinesh Rajkumar Sharma @ Dinesh Sanjay Bahal ... Applicant Versus The State of Maharashtra ... Respondent Mr. R. V. Gupta, Advocate for the Applicant. Mr. Y. M. Nakhwa, APP for the Respondent State. CORAM : J. H. BHATIA, J. DATE : 21ST NOVEMBER 2011 P. C. : The applicant seeks to be released on bail in crime No.127 of 2008 registered with Wagale Estate Police Station for the offences punishable under Sections 307, 385, 387, 504, 507, 437 r/w. Section 34 of the Indian Penal Code and also under Section 3 of the M.C.O.C. Act 2. The prosecution case, in brief, is that P.W.14, whose name is not disclosed, received phone calls from a notorious gangster Ravi Pujari making demand of certain amount. As he failed to make the payment, on 26.06.2008, two persons came on a motorcycle to his office. The pillion rider of that motorcycle fired two rounds towards PW.14 when he was sitting in his office. He did not suffer any injury. Later on, both the persons, who had come on motorcycle, escaped by the motorcycle. It was a kind of attempt to commit a murder or a strong threat that if the demand is not met, he would be finished. Thereafter, he approached the police and the offence came to be registered against two unknown persons. According to the prosecution, accused No.1 Anilkumar and the present applicant Dinesh had stolen a pulsar motorcycle and it was used for the purpose of going to the spot and going back. Accused No.1 Anilkumar was allegedly a pillion rider and he had fired, while the present applicant was driving the motorcycle. The applicant was arrested on 18.07.2008, and since then, he is in custody. Trial is not commenced. MP 2 BA879_11 3. According to the prosecution, the applicant had committed theft of the motorcycle and he had shown the spot from where the motorcycle was stolen. After perusal of the investigation papers, it appears that though test identification parade was held on 12.08.2008, present applicant was not identified as one of the culprits. No recovery has been made from the present applicant or at his instance. Except a confessional statement made by the present applicant before the Assistant Police Inspector about the theft of the motorcycle by him and use of the same for the purpose of going to the spot and going back, there is no other evidence. 4. The confessional statement before the police officer is not admissible in view of the provisions of Section 25 of the Evidence Act except to the extent it distinctly leads to discovery of material facts. Under Section 18 of the M.C.O.C. Act, a confessional statement made by the accused is admissible if it is made before a police officer not below the rank of the Superintendent of Police. In the present case, a confessional statement was made before the Assistant Police Inspector and it is clear that the precautions, which are required to be taken even by the Superintendent of Police while recording the confessional statement under Section 18, were not followed. The learned APP contended that earlier also the present applicant was connected with two similar offences. The learned Counsel for the applicant contended that the applicant was acquitted in both the cases. 5. Taking into consideration the material noted above, the applicant be released on his executing P.R. of Rs.50,000/- with one surety in like amount with condition that he shall not tamper with the prosecution evidence and shall also report at Wagale Estate Police Station on every Monday between 4.00 to 6.00 p.m. till end of the trial. (J. H. BHATIA, J)