1 BA 931-2011 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.931 OF 2011 Ravi Shrichand Punjabi ..Applicant Age : 32 years, Occu : Builder Residing at 201, Kesar Kripa, 14th Road, Khar (West), Mumbai. V/s. The State of Maharashtra ..Respondent (At the instance of D.C.B., C.I.D., Anti-Extortion Cell, Vide D.C.B., C.I.D., C.R.No.83/2010) Mr.A.P.Mundargi, Senior Counsel with Mr.Sudeep Pasbola and Mr.Rahul Arote, for the Applicant Mr.A.S.Gadkari, Special Public Prosecutor, for the Respondent (DCB - CID) CORAM : R.C.CHAVAN, J. RESERVED ON : 30TH SEPTEMBER, 2011 PRONOUNCED ON : 9TH NOVEMBER, 2011 O R D E R . The applicant who has been arrested and charge-sheeted by DCB-CID, Mumbai in C.R.No.83 of 2010 for the offences punishable under Sections 307, 506(II), 387 read with Sections 34 and 120-B of the Indian Penal Code 2 BA 931-2011 and Sections 3, 25 and 27 of the Arms Act and Sections 3(1)(i), 3(2) and 3(4) of the Maharashtra Control Of Organised Crime Act, 1999, has filed this application for bail after his application for bail was rejected by the learned Special Judge by order dated 7th May, 2011. 2. The allegations on the basis of which applicant faces the prosecution are as under :- On 14th July, 2010 at about 1:30 p.m. co-accused entered the jewellery shop of Mahesh Notandas Jagwani, enquired about the owner with the Manager and fired at the Manager Prashant Chabriya injuring him. The miscreants also pointed pistols towards watchman and then went away in a rickshaw. On a report by watchman Manmohan an offence was registered. Investigation revealed that this was an attempt of extorting money by Ravi Pujari in respect of which Mahesh Jagwani 3 BA 931-2011 eventually complained on 11th October, 2010 to DCP Zone IX, Mumbai. Accused 1 to 5 were arrested and it was revealed that they were members of organized crime syndicate of Ravi Pujari. Prior approval was granted on 17th September, 2010 by Shri Himanshu Roy, Joint Deputy Commissioner of Police, which did not name the applicant. Miscreants who fired were identified at parade. 3. Applicant was arrested on 1st December, 2010 when it was revealed that in 2006 and 2008 applicant had been acting for gangster Ravi Pujari and that the gangsters were in touch with the applicant. Confessional statements of co-accused revealed complicity of the applicant. Sanction for prosecution of co-accused under the MCOC Act was accorded on 11th December, 2010 and sanction for prosecution of applicant was accorded on 22nd February, 2011. 4 BA 931-2011 4. The learned Senior Counsel for applicant states that applicant has been falsely implicated by police, when applicant was himself a victim of extortion calls from underworld gangs of Chhota Rajan, Guru Satam and even Ravi Pujari, about which applicant had made complaints as far back as on 4th April, 2003 and 10th July, 2007. He also states that police had, in fact, provided protection to the applicant. The applicant had filed Writ Petition No.903 of 2010 alleging that a builder Ashok Mohnani was pressurizing him to broker a deal between Ashok and Ravi Pujari and on his refusal, Shri Rakesh Maria, the then Joint Commissioner of Police, on 9th March, 2010 threatened to frame him up in a false case. Applicant claims to have also complained about this on 12th March, 2010 to the Commissioner of Police and on 4th July, 2010 to all including the President of India. The petition itself seems to have been withdrawn by petitioner giving 5 BA 931-2011 instructions in writing on 26th March, 2010 to his Advocate. 5. The learned Public Prosecutor submitted that all these complaints are a camouflage and documentation created to cover up applicant's association with gangsters. Merely because complaints were made by the applicant they cannot be taken for face value and as rightly submitted by the learned Public Prosecutor, this aspect would have to be dealt with at trial. 6. The learned Senior Counsel for the applicant submitted that allegations about applicant's association with Ravi Pujari emanating from statements of witnesses recorded pertain to years 2006/2008. He submitted that co-accused, who had allegedly made confessional statements implicating the applicant, had retracted those statements, and that the evidence about applicant's talk with 6 BA 931-2011 Ravi Pujari in Dubai was doubtful. He submitted that the substantive offence is firing in jewellery shop of Mahesh Jagwani on 14th February, 2010 and there is nothing to show that applicant had anything to do with this incident. He also submitted that there are no previous crimes of applicant. Therefore, the learned counsel submitted that applying the tests laid down in RANJITSING BRAHMAJEETSING SHARMA Versus STATE OF MAHARASHTRA AND ANOTHER, reported at (2005)5 Supreme Court Cases 294. 7. He also relied on Judgment in Madan s/o. Ramkisan Gangwani Vs. State of Maharashtra, reported at 2009 ALL MR (Cri) 1447 on the question of previous criminal activity. In RANJITSING, the Supreme Court held as under :- 38. We are furthermore of the opinion that the restrictions on the power of the court to grant bail should not be pushed too far. If the court, having regard 7 BA 931-2011 to the materials brought on record, is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed. The satisfaction of the court as regards his likelihood of not committing an offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. If such an expansive meaning is given, even likelihood of commission of an offence under Section 279 of the Indian Penal Code may debar the court from releasing the accused on bail. A statute, it is trite, should not be interpreted in such a manner as would lead to absurdity. What would further be necessary on the part of the court is to see the culpability of the accused and his involvement in the commission of an organised crime either directly or indirectly. The court at the time of considering the application for grant of bail shall consider the question from the angle as to whether he was possessed of the requisite mens rea. Every little omission or commission, negligence or dereliction may not lead to a possibility of his having culpability in the manner which is not the sine qua non for attracting the provisions 8 BA 931-2011 of MCOCA. A person in a given situation may not do that which he ought to have done. The court may in a situation of this nature keep in mind the broad principles of law that some acts of omission and commission on the part of a public servant may attract disciplinary proceedings but may not attract a penal provision. 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 9 BA 931-2011 committing a crime after grnat 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 necesssarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and 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 10 BA 931-2011 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. 8. The facts of case at hand would be examined with reference to these principles. As to Judgment in Madan s/o. Ramkisan Gangwani Vs. State of Maharashtra, the learned Public Prosecutor rightly submitted that the ratio that emerges from the said Judgment is that mere previous charge-sheets cannot be the foundation of a charge under the MCOC Act and that there has to be some substantive offence. The learned Public Prosecutor submitted that in the case at hand firing on 14th February, 2010 at the shop of Mahesh Jagwani is the substantive offence. The learned Public Prosecutor also submitted that absence of any 11 BA 931-2011 charge-sheet against the applicant is irrelevant and it is enough, if there are charge-sheets in respect of unlawful activities of the organised crime syndicate. For this purpose he drew my attention to discussion in para 39 of Judgment of Division Bench in Govind Sakharam Ubhe Vs. State of Maharashtra, reported at 2009 ALL MR (Cri) 1903. 9. The learned Public Prosecutor submitted that even retracted confessions could be used as evidence, if substantially corroborated by other evidence. In any case, as rightly submitted by the learned Public Prosecutor, co-accused Sunil Shetty has not retracted the confession and it shows continuous association of applicant with Ravi Pujari in extortion racket right from 2007 to till after the incident. This would obviously have to be tested at trial. In view of this, even after applying the principles for grant 12 BA 931-2011 of bail laid down in RANJITSING's case, the applicant would not be entitled to bail. 10. Criminal Application is, therefore, rejected. (R.C.CHAVAN, J.)