16-BA-2231-2021.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

BAIL APPLICATION NO.2231 OF 2021

Julfikar A. Jafrey

...Applicant

Vs

The State of Maharashtra

...Respondent

…

Ms. Dhanashree M. Lad with Mr. Abdul Aziz Khan for the

Applicant.

Smt. Sharmila Kaushik, APP for the Respondent-State.

API Pradeep Sarfare, Shil-Daighar P.Stn. Thane present.

CORAM : SANDEEP K. SHINDE J.

DATE : FEBRUARY 10, 2022.

(Through Video Conferencing)

P.C. :

Heard learned counsel for the Parties.

2

Prosecution case in brief is, that, Complainant was

robbed of his mobile by a unknown pillion rider on 5

th October,

2018. Incident was reported only, on 9

th October, 2018. Whereafter,

Crime No.I-174 of 2018 came to be registered, against two unknown

persons. On 22

nd October, 2018, witness, Shahrukh told police, post

incident, he had seen, while Rehan Kazi (accused no.3) handing over

Shivgan 1/5

SHAMBHAVI

NILESH

SHIVGAN

Digitally

signed by

SHAMBHAVI

NILESH

SHIVGAN

Date:

2022.02.11

16:18:10

+0530

16-BA-2231-2021.odt

mobile phone to accused no.1-Mustafa Shaikh (Gang leader) and at

the relevant time, applicant and co-accused Arbaj Ziauddin Shaikh,

were seen by him in the company of Rehan Kazi and gang-leader-

Mustafa Shaikh. Afterwhich, Rehan Kazi (accused no.3) was arrested

on 10

th October, 2018 and on 12

th December, his statement under

Section 18 of the Maharashtra Control of Organized Crimes Act

(‘MCOC Act’ for short) came to be recorded. Rehan Kazi, would state

the applicant is member of crime syndicate, headed by accused

no.1-Mustafa Shaikh was active in snatching mobiles, for pecuniary

gains. Whereafter, applicant came to be arrested on 15

th March,

2019. However, Rehan Kazi (accused no.3) retracted the confession

on 26

th June, 2019.

3

It appears that in the crime in question i.e. C.R.No.174 of

2018, no overt act has been attributed to the applicant. The final

report suggest, that applicant has been arraigned in the, crime being

a member of crime syndicate, after approval. It may be noted that

co-accused Arbaj Shaikh, who was allegedly seen in the company of

Rehan Kazi (accused no.3) and gang leader, soon after the alleged

Shivgan 2/5

16-BA-2231-2021.odt

incident of mobile snatching, has been granted bail by this Court on

1

st September, 2021 in Bail Application No.3403 of 2019. The role

attributed to Arbaj Shaikh and to the applicant is similar or rather

identical.

4

Upon perusing the final report, it appears that

prosecution relies on confessional statement of Rehan dated 12

th

December, 2018; however, except that there is no other material to

corroborate the allegations, to say that applicant is member of Crime

Syndicate. Even otherwise, Rehan has retracted confessional

statement. It would be apposite, to note that while releasing co-

accused on bail, the Co-ordinate Bench, has observed in the order

that, Rehan volunteered to record his confession on the promise that

he would be granted pardon. Thus, having taken overview, of the

matter, a case is made out, for releasing the applicant on bail.

Although, the prosecution would rely on the affidavit of the

Investigating Officer and the crime chart appended thereto, in my

view, although applicant has been arraigned as co-accused in two

offences registered in the year 2018 with Mustafa Shaikh (gang

Shivgan 3/5

16-BA-2231-2021.odt

leader), that itself is not sufficient to continue his detention in the

crime in question. The investigation is over. Applicant is in custody

since 2019. In