1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3903 OF 2009 Suresh S/o.Chiman Bhosle Age-30 years, Occu-Labour, R/o.Shirsala, Taluka-Parali, District : Beed APPLICANT VERSUS The State of Maharashtra RESPONDENT Mr.N.S.Ghanekar, learned counsel for applicant. Mr.N.R.Shaikh, learned APP for respondent. (CORAM : A.V.POTDAR, J.) DATE : 01/12/2009 PER COURT : 1. By the present application, the applicant has prayed to release him on bail in connection with CR No.3001/2009 registered in Kingaon Police Station, Dist. Latur for the offence punishable u/s. 3(1)(ii), 3(2), 3(4) of The M.C.O.C. Act, 2. Heard learned counsel Shri.N.S.Ghanekar for applicant followed by the submissions of learned APP for State. Also perused the papers of investigation till carried out. 3. Heard learned counsel Shri.N.S.Ghanekar for applicant 2 followed by the submissions of learned APP for State. Also perused the papers of investigation till carried out. 4. Considering the submissions across the bar certain ex-chequer history of the offence in which the applicant was arrested required to be considered, which can be summarized as : In Kingaon Police Station an offence was registered about the incident occurred in front of Netaji College around 2.00 a.m. The incident took place on 11/09/2008. The said FIR was registered in Kingaon Police Station, against the 4 un-known persons. Thereafter, one offence came to be registered in Udgir Police Station vide CR No.150/2008 for an offence punishable u/s. 380, 392 of IPC. That offence was against 4 unknown persons about the incident occurred in the night between 04/08/2009 and the earlier night at about 2.30 a.m. It appears that this applicant came to be arrested on 16/10/2008 in connection with CR No.87/2008 registered in Kingaon Police Station. It appears that after his arrest, on his alleged statement recorded by the investigation agency u/s. 27 of the Evidence Act, resulted in the recovery of certain golden ornaments as these ornaments were recovered from the shop of the gold smith pointed out by this applicant and were seized under the panchnama dated 19/10/2008. It is to be noted that on transfer warrant the custody of the applicant was taken by Udgir Police Station on 26/10/2008. After he was taken in custody by this Udgir Police Station, on his statement recorded on 01/11/2008, one note of Rs.500/- was recovered from his premises. The allegations in the said CR No.150/2008 registered in Udgir Police Station are that 3 during the alleged incident cash in the sum of Rs.20,000/- was stolen by these 4 unknown persons who have committed an offence. 5. During the course of submissions across the bar, it is tried to urge that there is no previous anticidents to the credit of applicant prior to registration of CR No.87/2008 in Kingaon Police Station. To attract the provisions of The M.C.O.C. Act, he was shown as arrested in connection with crimes registered in Kingaon Police Station as well as Udgir Police Station. It is also tried to urge across the bar that so far as the alleged recovery shown in the offence registered in Kingaon Police Station, the golden ornaments alleged to be shown recovered from the shop of gold smith which shop was pointed out by applicant were neither shown to the complainant and were identified that this is the stolen property from the person of the complainant or others. Likewise the GC note which was recovered in connection with CR No. 150/2008 registered in Udgir Police Station can not be sufficient to connect the applicant in connection with the said offence. It is tried to urge that when these two offences registered against the unknown persons, after the arrest of this accused applicant, since last 1 year no test identification parade was conducted by the investigation officer by producing the applicant accused after his arrest before the complainant at least to identify whether can they identify the applicant as one amongst the unknown persons against whom the offence was registered in these two police stations and if it is so, the applicant is entitled for the benefit u/s.21(4) of The M.C.O.C. Act and be released on bail. 4 6. His application is vehemently opposed by the learned APP appearing for State. Relying on the ruling in the matter of Vinod G.Asrani versus State of Maharashtra, reported in 2007 AIR SC 1253 and as per the observations in para no.10 of the citation, it is contended that “as to whether any offence has at all been made out against the petitioner for prosecution under MCOCA, the High Court has rightly pointed out that the accused will have sufficient opportunity to contest the same before the Special Court”. It was urged before this Court that even though no test identification parade was conducted whether the applicant accused is the same person who was involved in the said crime or not can be tested at the time of trial. It is also urged that the recovery in the offence registered in Kingaon Police Station as well as in Udgir Police Station is sufficient to connect the applicant accused in those offences. 7. Considering these submissions across the bar, first it is necessary to deal with the citation on which reliance is placed by the learned APP appearing for State as this is a bail application in the offence registered under the M.C.O.C. Act. It is to be noted that matter arises before the Apex Court is in the matter of an application which was moved for quashing of the FIR. When the charge sheet is filed after completion of the investigation, then, it is a matter of record to be decided by the Special Court whether any offence is made out against the applicant accused under the M.C.O.C. Act or not which is within the purview of jurisdiction of the Special Court, 5 but it is not so in the application in my hand. In the premise, the ruling on which reliance is placed by the learned APP is not applicable in the present case. 8. The importance of the test identification parade required to be considered when the offence is registered against the unknown person. After the arrest of the unknown person, the test identification parade of this unknown person is required before filing of the charge sheet. If the unknown person against whom the offence is registered and was not identified before filing of the charge sheet, it can not be a excuse at least at this stage to consider whether there is any prima facie case against the unknown person who is arrested. Apart from the fact that in connection with CR No.87/2008 even though the gold ornaments alleged to be recovered from the shop pointed out by the applicant, those ornaments were not identified by the person who complained that his ornaments were stolen. If those ornaments were identified, the question might have different, but if they have not shown for identification at all, it is the best piece as to how the investigation is faulty. In crime No.150/2008 registered in Udgir Police Station, mere recovery of one GC note of Rs.500/- is done. In absence of denomination of GC note which were stolen during the alleged incident is not sufficient to connect the applicant with the stolen property during the said incident. 9. In view of facts which are discussed in above paragraphs, it require to be considered whether the applicant is entitled for the 6 benefit of Section 21(4) of The M.C.O.C. Act. In the light, whether any prima facie case is made out or not, for the facts discussed in above paragraphs supra, one fact is clear that the evidence admitted to be collected at least is not sufficient to attract the provisions of M.C.O.C. Act and if it is so, case is made out to give the benefit of section 21(4) of The M.C.O.C Act to the applicant. In the premise, the application deserves following order - O R D E R 1. Application is allowed. 2. Applicant accused be released on bail on furnishing solvent surety in the sum of Rs.25,000/- and on executing the PR bond in the like amount. 3. After released on bail, till the commencement of trial, the applicant accused not to leave the local jurisdiction of the Special Court as well as to give attendance to Shirsala Police Station once in a week on every sunday in between 11.00 a.m. to 2.00 p.m. 4. In case of violation of this condition, the State may apply for cancellation of bail today granted. (A.V.POTDAR, J.) khs/DEC 2009/cri.appl.3903-09