Sahebro Kaluram Bhintade vs State of Maharashtra (At the instance of DCB, CID, UNIT (III)

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2019 Supreme(Bom) 1711

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
B.P. Dharmadhikari, Swapna Joshi, JJ.
Sahebro Kaluram Bhintade & Others - Appellant
Versus
State of Maharashtra (At the instance of DCB, CID, UNIT (III) & Another - Respondent
Criminal Appeal Nos. 1157 of 2012, 1066 of 2012, 1077 of 2012, 1094 of 2012, 1076 of 2012, 1093 of 2012, 1095 of 2012, 1061 of 2012, 1095 of 2012, 1095 of 2012, 1157 of 2012 with Criminal Application Nos. 144 of 2019, 1406 of 2018, 1534 of 2018, 951 of 2019, 144 of 2019
Decided On : 09-12-2019

Advocates Appeared:
For the Appellants:Sr. Con. Rajiv Patil a/w Hasan Patel, Priyanka Thakur, Megha Bajoria i/b Prashant M. Patil, Sr. Con. Shirish Gupte a/w Ganesh Gole, D.D. Ghadge, Ateet Shirodkar, Taraq Sayed a/w Advait Tamhankar, Ajay Dubey, Sudeep Pasbola a/w Bhavesh Thakur, E.A. Sasi, B. Sharada, Sr. Con Ashok Mundargi, Advocates.
For the Respondents:A.M. Chimalkar, Spl. P.P., a/w Siddharth Jagushte, Akash Kavade, Advocates, J. P. Yagnik, APP.

Headnote:
MCOC Act, 1999 - Section 3 – Criminal Procedure Code – Section 161 - Rigorous imprisonment – Appeal against Conviction – Trial Court – Claim of compensation - During course of investigation statements of witnesses were recorded. Test Identification Parade was arranged and with help of witnesses Ms. Nita Shah vide Exhibits - 470 & 471 collectively - After completion of investigation was filed by Police Station against seven accused persons in the Court of Metropolitan Magistrate, Mumbai. Then case was committed to the Court of Sessions - Secret information was received by Police Inspector to the effect that some persons were likely to commit in a jewelry shop at - Trap was laid and came to be arrested near Hotel at During their personal search a country made handgun without a along with one live cartridge was found in possession of along with Nokia Mobile phone some currency and driving license was found in possession of inch knife and some currency was found in possession of inch knife and some currency and Anil was also found in possession of one knife of inch - Whether in a case where an Accused had been bailed out in a criminal case, in which case, subsequently new offences were added, was it necessary that bail earlier granted should be cancelled for taking accused in custody – Held, This discussion shows that trial & punishment under MCOCA can be only for an organized crime by an organized crime syndicate & not only for CULA which occurred in past, if the organized crime is not proved. Conviction therefore under Ss. 3(3) to (5) may be possible only when trial on the basis of such organized crime succeeds. However, it is not necessary to conclusively answer this issue since it does not arise in this case. Accused who happen to be the members of such organization can also be punished under S. 3 of MCOCA for the organized crime as also under its Ss. 3(3),(4) & (5). Such of the accused who did not participate in murder dated 2.3.2007 but have assisted the organization or syndicate in its functioning or affairs or CULA, can be punished and their confessions recorded under S. 18 of MCOCA are also admissible. Question if in trial on earlier relevant for constituting CULA, the competent court ultimately acquits the accused therein, whether the present trial or conviction under MCOCA would still stand, therefore does not arise. MCOCA does not envisage any punishment for such ofence and it permits punishment only in situations envisaged in Ss. 3 - Involvement of accused in the murder of has been proved by the prosecution beyond reasonable doubt. Similarly fact that he is leader of organized crime syndicate and party to CULA stands established. Hence, his conviction can not be faulted with because accused 11 has been acquitted by the Special Court. Contribution of other accused persons leading to CULA has also come on record. Hence, submission that PW-2-Neelkanth Bane did not bring any threat perception of deceased on record is not decisive here. When in law, conviction is possible only on the strength of the confessions recorded under S. 18 of the MCOCA, in present matter, where the independent corroboration is seen, the conviction of the others by the Trial Court can not be faulted with. Hence, the following order - Appeal dismissed

JUDGMENT :

B.P. Dharmadhikari, J.

1. These Appeals assail the common Judgment and Order dated 31st August 2012 delivered by the Special Judge, MCOC Act, Gr. Mumbai in MCOC Special Case No.7 of 2008 and other connected matters, whereby the said Court convicted –

(a) Arun Gulab Gawali (A-1), Sandip @ Sandy Baliram Gangan (A-9), Shrikrishna @ Babu Tukaram Gurav (A-10), Pratap Tukaram Godse (A-12), Ajit Chandrakant Rane (A-13), Suresh Raghunath Patil (A-15) and Sunil Sadashiv Ghate (A-20) for the offences punishable under Section 3(4) of the MCOC Act, 1999 and sentenced each of them to suffer rigorous imprisonment for ten years and to pay a fine of Rs.5.00 Lac. each, & in default of fine, sentenced them to suffer rigorous imprisonment for three years.

(b) Arun Gawali (A-1), Sandip Gangan (A-9), Shrikrishna Gurav (A-10), Pratap Godse (A-12), Ajit Rane (A-13), Suresh Patil (A-15) and Sunil Ghate (A-20) for the offences punishable under Section 3(1)(ii) of the MCOC Act, 1999 and sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs.5.00 Lacs each, and in default thereof, to suffer rigorous imprisonment for three years.

(c) Vijay Giri (A-2), Ashokkumar Shivakant Jaiswar (A-3), Narendra @ Kandi @ Lalmani Giri (A-4) and Anil Sherbahadur Giri (A-5) for the offences punishable under Section 3(2) of MCOC Act, 1999 sentencing them to suffer rigorous imprisonment for life and to pay a fine of Rs.5.00 Lacs each, and in default thereof, to suffer rigorous imprisonment for three years.

(d) Vijay Giri (A-2), Ashokkumar Jaiswar (A-3) and Narendra Giri (A-4) for the offence punishable under Section 452 read with Section 34 of Indian Penal Code and sentenced each to suffer rigorous imprisonment for seven years and to pay a fine of Rs.5000/- each, and in default to suffer rigorous imprisonment for one year.

(e) Vijay Giri (A-2), Ashokkumar Jaiswar (A-3), Narendra Giri (A-4) and Anil Giri (A-5) for the offence under Section 302 read with Section 34 read with Section 120-B of the Indian Penal Code and Section 3(1)(i) of the MCOC Act, 1999 and sentencing each to suffer rigorous imprisonment for life and to pay a fine of Rs.1.00 Lac each, and in default to suffer rigorous imprisonment for three years.

(f) Arun Gawali (A-1), Sahebrao Bhintade (A-6), Sandeep Gangan (A-9), Shrikrishna Gurav (A-10), Pratap Godse (A-12), Ajit Rane (A-13) and Suresh Patil (A-15) for the offence punishable under Section 3(2) of the MCOC Act, 1999 and sentencing to suffer rigorous imprisonment for life and to pay a fine of Rs.7.00 Lacs each, in default to suffer rigorous imprisonment for three years.

(g) Arun Gawali (A-1), Sahebrao Bhintade (A-6), Sandeep Gangan (A-9), Shrikrishna Gurav (A-10), Pratap Godse (A-12), Ajit Rane (A-13) and Suresh Patil (A-15) for the offence punishable under Section 3(1) (i) of the MCOC Act, 1999 and sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs.1.00 Lac each, and in default thereof, to suffer rigorous imprisonment for three years.

(h) Vijay Giri (A-2) for the offence punishable under Section 3 read with 25(1-B) of the Arms Act, 1959 and sentenced him to suffer rigorous imprisonment for three years and to pay a fine of Rs.5000/-, & in default, to suffer rigorous imprisonment for six months.

There were total 21 accused before it & accused nos. 14, 16, 17 to 19 were discharged while accused 8, 11 & 21 have been acquitted. It is not in dispute that accused no. 7 Bala Surve died during pendency of trial on 17.7.2012.

2. Case of prosecution in brief is –

(a) The sitting Corporator namely Kamlakar Jamsandekar was shot dead in his house by two unidentified persons on 2nd March 2007 at about 16.45 hours who were hired by associates of Arun Gawali who was the then sitting MLA of Akhil Bhartiya Sena (ABS hereafter) and head of an organized crime syndicate ie ABS. It is the specific case of the prosecution that Accused Nos. 1, 9, 10, 12, 13, 15 and 20 were members of organized crime syndicate headed by Arun Gawali (A-

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2019 Supreme(Bom) 1711

Cases Referred (32)