Criminal Appeal No. 25 of 2014. Case: Sachin Bansilal Ghaiwal Vs State of Maha-rashtra. High Court of Bombay (India)
| Case Number | Criminal Appeal No. 25 of 2014 |
| Counsel | For Appellant: S. V. Kotwal, Avinash D. Kamkhedkar, J. Shekhar, H. H. Gursahani i/b J. Shekhar and Co., Advs. and For Respondents: Mrs. S. D. Shinde, Addl. P.P., H. J. Dedhia, Addl. P. P. |
| Judges | P. V. Hardas , J. and A. S. Gadkari, J. |
| Issue | Criminal Procedure Code (2 of 1974) - Sections 227, 228; Indian Penal Code (45 of 1860) - Section 107; Maharashtra Control of Organised Crime Act (30 of 1999) - Sections 2(1)(a)(d)(iii), 3(2), 23(2) |
| Citation | 2014 CriLJ 4217 |
| Judgement Date | July 16, 2014 |
| Court | High Court of Bombay (India) |
Judgment:
A. S. Gadkari, J.
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The present Appeals have been filed by the Appellants, who are as per the final report submitted by the police before the Special Court under the MCOC Act, Pune, accused Nos. 3 and 9 respectively. These Appeals have been preferred by the Appellants under Section 12 of the Maharashtra Control of Organised Crime Act 1999 ('MCOC Act' for brevity) challenging the order dated 10th February, 2013 passed below Exhibit 192 and the order dated 18th February, 2013 passed below Exhibit 204 respectively in MCOC Special Case No. 3 of 2010 thereby rejecting the applications preferred by the Appellants under Section 227 of the Criminal Procedure Code, for their discharge from the case. The Appellants have questioned the correctness of the said orders dated 10th February, 2013 and 18th February, 2013 passed below Exhibits 192 and 204 respectively.
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Both these Appeals are decided by this common judgment as they are arising out of the same crime number, have similar set of witnesses/facts and also involve common questions of law. For the sake of brevity in the matter, the compilation of documents which has been preferred by original accused No. 9 - Umesh Kirve along with the final report filed in Criminal Appeal 1115 of 2013 has been referred to hereinafter with reference to the page numbers thereto.
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The Appellant - Sachin Ghaiwal in Criminal Appeal No. 25 of 2014 has challenged the application of the provisions of the MCOC Act qua him to C.R. No. 82 of 2010 whereas the Appellant - Umesh Kirve in Criminal Appeal No. 1115 of 2013 has sought for complete discharge from the crime or in the alternate discharge from the provisions of the MCOC Act.
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The Appellants have challenged the impugned orders apart from various miscellaneous grounds which are taken in the respective Appeal memos, mainly on the following five grounds which can be sieved from the arguments of the learned counsel and those are:
(i) There is no sufficient material on record for framing a charge against them and particularly under the provisions of the MCOC Act;
(ii) There is total non-application of mind by the competent authorities while granting prior approval under Section 23(1)(a) and sanction under Section 23(2) of the MCOC Act;
(iii) That the Appellants have been wrongly roped in C.R. No. 82 of 2010 as 'members' of the organized crime syndicate of Nilesh Ghaiwal while invoking the provisions of the MCOC Act. In other words, the Appellants contend that, there is no material on record to suggest that the Appellants are the 'members' of the organized crime syndicate of Nilesh Ghaiwal as there is no "continuing unlawful activity" as contemplated under Section 2(d) of the MCOC Act for them with the said crime syndicate. In support of their contention the Appellants have placed their reliance upon the judgment of the Division Bench of this Court in the case of State of Maharashtra v. Rahul Ramchandra Taru reported in (2011) 6 AIR Bom R 177;
(iv) Mere submitting antecedents by the police of the persons is not sufficient to invoke the provisions of the MCOC Act and there must be a common thread amongst all the persons, to say that the crime must have been committed on behalf of the crime syndicate; v) The term 'Member' as mentioned in Section 2(d) has not been defined anywhere in the MCOC Act, so also the term 'Gang' referred to in Section 55 of the Bombay Police Act 1951 and therefore the Appellants are otherwise also not qualified to be held as 'member' of the 'gang' of the organized crime syndicate for want of any role in the alleged crime.
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The facts which can be enumerated from the record be stated as follows:
(i) The record discloses that on 9th May, 2010 witness Atul alias Pappu Laxman Kudale lodged the First Information Report with Dattawadi Police Station, Pune under Sections 143, 147, 148, 149, 307, 302 read with 120(b) of the Indian Penal Code and under Sections 3, 4 and 25 of the Arms Act and under Section 37(1) read with Section 135 of the Bombay Police Act which came to be registered as C.R. No. 82 of 2010. In the said statement dated 9th May, 2010 the witness Atul alias Pappu Laxman Kudale has stated that he along with his brother Sachin Kudale, Balaji Kadam, Santosh and one Nanya had been to Dattawadi Police Station for the release of their friend Aakash Shinde on 8th May 2010. That in the midnight the police released said Aakash after giving admonition to him. That the complainant Atul alias Pappu, his brother Sachin and their friends were returning to their house at about 12.30 to 1 a.m. The complainant was travelling in a van whereas his brother Sachin and other witnesses were travelling on motorcycles. On the way back to their home, the complainant heard sound of firing and he realized that a bullet has passed through brushing his right shoulder. Due to darkness the complainant could not see immediately the assailants properly. The complainant asked his driver to drive the van towards Dattawadi Police Station and after reaching to Dattawadi Police Station, the complainant rushed inside the said police station. At that time, the complainant saw that Nilesh Ghaiwal and his associates were on 4 to 5 motorcycles. That accused No. 1 - Nilesh fired a bullet at the complainant. However, the complainant dodge the same. Thereafter accused Santosh Gawde hurled a chopper at the complainant. But the complainant was successful in escaping from it. Subsequently the complainant came to know that in the incident of said firing, his brother Sachin has been injured and was taken to the hospital. Sachin succumbed to the injuries and was declared dead at the hospital.
(ii) The record further discloses that crime No. 82 of 2010 at Dattawadi Police Station was registered by Mr. D. B. Patil, Police Inspector (Crime) then attached to Dattawadi Police Station and the investigation of the said case was undertaken by Mr. Chowgule, Senior Police Inspector. It further appears from the record that under the orders of the superior officers, the investigation of the said crime was entrusted to Mr. S. D. Kekane, Police Inspector, Crime Branch, Unit II, Pune City on the same day. The record discloses that during the course of investigation of C.R. No. 82 of 2010, originally registered at Dattawadi Police Station, Pune, the investigating officer Mr. S. D. Kekane recorded statements of various witnesses. During the course of the said investigation, it is revealed to the said investigating officer that the organized crime syndicate headed by Nilesh Ghaiwal and his associates are involved in the commission of the said crime i.e. C.R. No. 82 of 2010. Police Inspector S. D. Kekane thereafter submitted a proposal dated 16th July, 2010 to the Additional Commissioner of Police (Crime) Pune City for invoking the provisions of the MCOC Act. The said proposal is at page No. 251 of the compilation. In the said proposal, the Investigating Officer has specifically mentioned that the crime has been committed by the organized crime syndicate headed by Nilesh Ghaiwal and therefore he requested for invoking the provisions of the MCOC Act to the said C.R. No. 82 of 2010.
(iii) The Deputy Inspector General of Police and Additional Commissioner of Police (Crime) Pune City by its order dated 3rd August, 2010 granted prior approval as contemplated under Section 23(1)(a) of the MCOC Act to invoke the provisions of the MCOC Act to the existing crime i.e. to C.R. No. 82 of 2010 originally registered at Dattawadi Police Station. The said prior approval is at page 304 of the compilation. That by an order dated 3rd August, 2010 itself, the said competent authority appointed Assistant Commissioner of Police, Crime Branch, Unit-I, Pune City as the investigating officer for the investigation of the said crime. The said order dated 3rd August, 2010 thereby appointing the Assistant Commissioner of Police, Crime Branch, Unit-I, Pune for investigating the offence after invoking the provisions of the MCOC Act is at page No. 307 of the compilation.
(iv) After completion of the investigation, the Assistant Commissioner of Police, Crime Branch, Unit I, Pune City submitted a report dated 15th October, 2010 to the Additional Director General and Commissioner of Police, Pune City for granting sanction under Section 23(2) of the MCOC Act. The competent authority i.e. the Additional Director General and Commissioner of Police, Pune City on 22nd October, 2010 accorded sanction as contemplated under Section 23(2) of the MCOC Act to prosecute the accused persons mentioned in the said sanction under Sections 3(1)(i)(ii), 3(2), 3(4) of the MCOC Act for taking cognizance by the Special Court constituted for trying the said offences as contemplated under sub-section (1) of Section 5 of the MCOC Act.
(v) It further appears from the record that on 26th October, 2010 the investigating agency submitted its final report in the Special Court constituted under the provisions of the MCOC Act Pune and the same has been culminated in MCOC Special Case No. 3 of 2010. The Appellants thereafter preferred applications below Exhibit 192 and 204 respectively thereby seeking their discharge under Section 227 of the Criminal Procedure Code from MCOC Special Case No. 3 of 2010. As stated herein above, the Trial Court by its orders dated 10th February, 2013 and 18th February, 2013 passed below Exhibits 192 and 204 respectively has rejected the said applications.
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The Appellants have impugned the said orders dated 10th February, 2013 and 18th February, 2013 respectively in the present Appeals.
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Heard Mr. S. V. Kotwal, learned counsel appearing for accused No. 3 - Sachin Ghaiwal in Criminal Appeal 25 of 2014 and Mr. J. Shekhar, learned counsel appearing for accused No. 9 - Umesh Kirve in Criminal Appeal 1115 of 2013 and the respective Additional Public Prosecutors appearing in the present Criminal Appeals. Mr. J. Shekhar, learned counsel appearing in Criminal Appeal 1115 of 2013, apart from...
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