Prima facie evidence of involvement in the incident and application of MCOCA.

JUDGMENT

Manish Pitale, J. - This is an Appeal filed under Section 12 of the Maharashtra Control of Organized Crime Act, 1999 (MCOCA). The Appellant is one of the accused persons against whom offences have been registered as per FIR No. 80 of 2017, whereby offences under Sections 302,143, 144, 147, 148, 149 of the Indian Penal Code as also Section 4 of the Arms Act and Sections 3(1)(i) (ii), 3(2), 3(4) of the MCOCA have been registered, apart from offences under the Bombay Police Act.

2. The incident leading to registration of FIR occurred on 31.03.2017. It is alleged that the Appellant and other accused persons assaulted the victim by means of swords, sickles and choppers, thereby causing extensive injuries on the body of the victim. The assault led to death of the victim. Post-mortem report records as many as 19 injuries on the body of the victim, including severe injuries on vital parts of the body like head and neck. The cause of death is recorded as hemorrhage and shock due to chop injuries.

3. The statement leading to registration of FIR was given by one of the associates of victim who was present at the time of incident, but he escaped the assault carried out by the accused persons. The Appellant and other accused persons were arrested. The Appellant has been in custody since 04.04.2017.

4. The Appellant moved application for bail before the Court of Special Judge under MCOCA at Pune. It was claimed that the presence of the Appellant at the time of incident was not established by the material on record and that since no overt act was not attributed to him, his involvement in the crime was not demonstrated by the material on record. It is further claimed that the MCOCA had been wrongly applied to the Appellant. But, by the impugned order dated 27.08.2018, the aforesaid Court rejected the Application for bail. The present Appeal has been filed challenging the said order.

5. Mr. A. M. Saraogi, learned Counsel appearing on behalf of the Appellant submitted that the name of the Appellant was not specifically stated in the FIR. His name was subsequently added. The statements of the Complainant and other witnesses did not attribute any overt act to the Appellant and therefore, there was hardly any material on record to indicate the involvement of the Appellant in the incident in question. It was further submitted that MCOCA was wrongly applied to the Appellant as he had no criminal antecedents and he was, in fact, resident of Solapur. It was further submitted that the Appellant was roped in, only because he is son-in-law of accused No.1. On this basis, it was submitted that the Appeal deserved to be allowed and the Appellant deserved to be enlarged on bail.

6. On the other hand, Mr. Yagnik, learned APP opposed the contentions raised on behalf of the Appellant. It was submitted that the presence of the Appellant was established on the basis of material available on record. Since the present case is concerned with activities of an unlawful assembly, material to show presence of the Appellant for sufficient. It was further submitted that the question as to whether the MCOCA was properly applied or not could not be decided at this stage and since the Appellant was part of an unlawful assembly which caused the death of the victim in a brutal manner, the present Appeal did not deserve favourable consideration.

7. Heard learned Counsel for the rival parties and perused the material on record along with Appeal memo, copy of the charge-sheet and documents filed therewith. Although, name of the Appellant does not appear to be mentioned specifically in the FIR, yet it is stated that the accused persons named in the FIR along with their associates had assaulted the victim causing severe injuries. It is significant that the auto rickshaw in which the assailants reached the spot of the incident and in which weapons were kept, was recovered from the custody of the Appellant.

8. The statement of witnesses indicate that the Appellant was present along