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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD
T.V. NALAWADE, MANGESH S. PATIL, JJ.
Kishor Changdev Dandwate - Appellant
Vs.
State of Maharashtra - Respondent
Criminal Appeal No. 222 of 2019
Decided On : 29-03-2019
Indian Penal Code,1860 – Section 397,392,34,353,160 and 324 r/w 149 - Arms Act - Section 3 r/w 25 and 4 r/w 25 - Maharashtra Control of Organised Crime Act, 1999 - Sections 3 (1)(ii), 3(2) and 3(4) – Robbery – Dangerous weapon – pistol - Submissions made and record show that in C.R. registered in Police Station, charge-sheet is filed against present petitioner and other three accused for offences punishable under sections 397, 392, 34 etc. of Indian Penal Code - Court has carefully gone through the material collected in this crime and material shows that in incident first present appellant and his associate entered hotel of first informant and they gave threat and asked to give food parcel when they had no intention to pay charges- One- gang leader was in company of present appellant and he said that he would not allow first informant to do business of hoteling if his demands were not met with - Then other two accused entered hotel and they started assaulting first informant – Said one then took out pistol and fired at kitchen - Present appellant showed knife to first informant and gave threats - They prevented first informant from contacting police by using phone - Then cash amount was taken away forcibly by associate of present appellant and they together left hotel by giving threat - Some customers were there and they ran out due to atmosphere of fear created by present appellant and his associates- Whether there was organised crime syndicate and person who is before Court had acted as either singly or collectively as member of that syndicate – Held, he submitted that members of the crime syndicate may act singly or collectively in different offences - There is force in submissions made by learned APP - In the case reported as 2009(3) Bom.C.R.(Cri.) 144 : 2009 AU.M.R.(Cri.) 1903 (Govind Sakharam Ubhe Vs. State of Maharashtra), this Court considered almost all cases on which reliance was placed by learned Counsel for appellant and this Court has observed What is contemplated under Section 2(1)(d) of the MCOCA is that activities prohibited by law for time being in force which are punishable as described therein have been undertaken either singly or jointly as a member of organized crime syndicate and in respect of which more than one charge-sheets have been filed - Stress is on the unlawful activities committed by organized crime syndicate - Requirement of one or more charge-sheet is qua the unlawful activities of the organized crime syndicate - In view of the material available against present appellant which is already quoted which shows that other three accused were already working as crime syndicate and in last crime, present appellant also got involved in the crime syndicate, this Court holds that it is not possible to infer at this stage that he was not member of the crime syndicate - Appeal stands dismissed.
ORDER :
1. The appeal is filed against the order on Exh. 26 in Special Case No. 5/2018 of learned Special Judge appointed under the provisions of the Maharashtra Control of Organised Crime Act, 1999 (hereinafter referred to as 'the Act' for short). The said application was filed by the present appellant for discharge in respect of the offences punishable under sections 3 (1)(ii), 3(2) and 3(4) of the Act. The application is rejected by the learned Special Judge. Both the sides are heard.
2. The submissions made and the record show that in C.R. No. 132/2017 registered in Rahata Police Station, District Ahmednagar, charge-sheet is filed against the present petitioner and other three accused for offences punishable under sections 397, 392, 34 etc. of Indian Penal Code, section 3 read with 25 and section 4 read with 25 of the Arms Act and the aforesaid sections of the Act.
3. This Court has carefully gone through the material collected in this crime and the material shows that in the incident dated 18.11.2017 first the present appellant and his associate entered the hotel of the first informant and they gave threat and asked to give the food parcel when they had no intention to pay the charges. Dipak Pokale, the gang leader was in the company of the present appellant and he said that he would not allow the first informant to do the business of hoteling if his demands were not met with. Then the other two accused entered the hotel and they started assaulting the first informant. Pokale then took out the pistol and fired at kitchen. Present appellant showed the knife to the first informant and gave threats. They prevented the first informant from contacting the police by using phone. Then cash amount of Rs. 3,000/- was taken away forcibly by Akshai Dhabhade, associate of the present appellant and they together left the hotel by giving the threat. Some customers were there as it was 11.00 a.m. and they ran out due to atmosphere of fear created by the present appellant and his associates.
4. The submissions made and the record show that Pokale is the gang leader and as against him from the year 2013, as many as 17 crimes were registered in two police stations like Rahata Police Station and Loni Police Station. Most of the crimes are punishable under sections 394, 399 and 379 of I.P.C. Some cases were registered for offence of murder (two in number) and for an attempt of murder also. In atleast six cases, Dadu More was associate of Dipak Pokale. In two cases in the past Akshai Dhabhade was associate of Dipak Pokale. In one case, the present case C.R. No. 132/2017 all the four were together in the incident described above. Two more crimes were registered against the present appellant in Rahata Police Station like C.R. No. 183/2017 and 185/2017. The first crime was registered for offence punishable under section 324 read with 149 of I.P.C. and the second was registered for offences punishable under sections 353, 160 and 34 of I.P.C.
5. The learned Counsel for appellant submitted that in only one crime, present appellant is shown as co-accused with the so called gang leader and so, the provisions of the Act, could not have been used against him. He submitted that in statement recorded under the provisions of the Act, the appellant has stated that only due to fear of the main accused Pokale, he had given company to Pokale up to the hotel by giving him lift on his motorcycle. This submission cannot be accepted at this stage when there is the material like statements of witnesses of aforesaid nature.
6. The learned Counsel for appellants placed reliance on some observations made by the Apex Court in the cases reported as 2005(2) Bom.C.R.(Cri.) 567(S.C.) : A.I.R. 2005 (S.C.) 2277 (Ranjitsing Brahmajeetsing Sharma Vs. State of Maharashtra), 2011 B.C.I. (soft) 201 : 2011 All.M.R. (Cri.) 2100 (Bombay High Court) (State of Maharashtra Vs. Rahul Ramchandra Taru), 2007(1) Bom.C.R.(Cri.) 853(S.C.) : 2007(4) S.C.C. 171 : 2007(1) W.L.N. 118 (S.C.) (State of
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