IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3281 OF 2008 CRIMINAL APPLICATION NO. 3281 OF 2008 CRIMINAL APPLICATION NO. 3281 OF 2008 Mr.Rakesh Popat Bharane & Anr. ...Applicants vs. The State of Maharashtra ...Respondent Mr.A.P. Mundargi, Senior Counsel i/b. Mr.Sachin Bhosale for the Applicants. Mr.Rajesh More, APP for the State. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : MARCH 2, 2009 DATED : MARCH 2, 2009 DATED : MARCH 2, 2009 P.C. :- P.C. :- P.C. :- 1. This is an application for bail. 2. The applicant was arrested on 16th June, 2007 in connection with an offence which was registered vide C.R.No.170/2007 by Nigadi Police Station on 20th April, 2007 for the offences punishable under Sections 302, 120B, 34 of the IPC. Thereafter, proposal for complying provisions of MCOC Act was made by the competent authority and sanction was granted by order dated 16th November, 2007 and provisions of Section 3(1)(i)(ii), 3(2) and 3(4) of the MCOC At was added to the said C.R.No.170/2007. In the complaint, it was alleged that the complainant and the deceased had decided to go to - 2 - the office on a motor cycle alongwith two other relatives of the complainant who also went alongwith them on another motorcycle. The complainant’s case is that at 2 p.m., they stopped their motorcycle for making a phone call and at that time, three persons came on one motorcycle and fired shots on deceased Ananta Padale with their firearms. 3. The application for bail filed by the applicant is rejected by the Sessions Court, Pune on 21st July, 2008. 4. Shri Mundargi, learned Senior Counsel appearing on behalf of the applicant submitted that the provisions of MCOC Act were not applicable since the cases which were registered against the present applicant were not pertaining to pecuniary advantage received by the applicant about members of the crime syndicate. He submitted that the sanctioning authority had not applied its mind while giving approval to the provisions of the MCOC Act against the present applicant. It was further submitted that the applicant is not a member of any - 3 - crime syndicate and does not have any relations with the other accused persons in the present C.R. He then submitted that the only material which was on record was the conversation of a co-accused. It was submitted that it had been held in several cases by this Court that confession alone was not sufficient for applying the provisions of MCOC Act. It was further submitted that though reliance was placed on telephone records of telephone calls made from phone allegedly used by the applicant and the other co-accused, without a transcript it was not possible to ascertain what was the conversation between then. Further it was submitted that recovery of mobile phone from the mother of the applicant would not be admissible as recovery under Section 27 of the Evidence Act. 5. In my view, submission made by the learned Senior Counsel for the applicant cannot be accepted. In the present case, the confessional statement of the co-accused is not the only material on record to show the involvement of the present applicant. In the affidavit-in-reply filed by the Assistant Commissioner - 4 - of Police, he has mentioned that there are several cases pending against them and that the applicant is a habitual offender and is involved in several cases. A list of seven cases has been given in para 15 of the affidavit-in-reply. It is a case of the prosecution that the applicant is the main accused who had conspired with the members of the other organised syndicate syndicate in committing the murder of the deceased and had abated commission of the offence for supplying weapon to the co-accused which was used for killing the deceased. The said revolver had been seized and was sent to the Ballistic Expert for examination who opined that the said revolver was used in the commission of the offence. Therefore, apart from the confessional statement of Ashok Sawant which is recorded under Section 18 who has stated that the applicant had purchased the revolver from him and the other confessional statement of co-accused Santosh Shinde who has stated that the applicant was main conspirator of the present offence, there is also other material on record showing the involvement of the present applicant. The statement of Madhukar Anantrao Pathak reveals that - 5 - there was previous enmity between the applicant and the deceased. Witness Rohidas Kisan Sawant in his statement has stated that the applicant was in constant touch with the other co-accused at Solapur. The other witness Vilas Dhumal has stated in his statement that the applicant used to threaten him and his family members to handover his landed property to him. During the course of investigation and at the time of identification parade of the other co-accused, the present applicant gave threats to the witnesses and therefore, NC complaint was recorded on 3rd August, 2007 which fact has been mentioned by the Special Executive Magistrate in the test identification parade panchanama. It, therefore, cannot be said that there was non-application of mind on the part of the competent authority in granting sanction in invoking provisions of MCOC Act. The other judgments on which reliance is placed by the learned Senior Counsel for the applicant pertaining to confessional statement will not apply to the facts of the present case since apart from the confessional statement, other material is also there on record showing the involvement of the applicant. - 6 - 6. Even assuming for the sake of argument that provisions of MCOC Act cannot be applied to the fact of the present case, even then there is sufficient material on record showing the applicant’s involvement in the offence under Section 302. The applicant has threatened witnesses and therefore, if he is released on bail, he is likely to tamper with the evidence or threaten the prosecution witnesses. Therefore, even otherwise on account of his involvement in the offence under Section 302, the applicant is not entitled to be released on bail. No case is made out by the applicant for grant of bail. 7. The application for bail is rejected. (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)