Banti @ Ramdas Anna Gaikwad (Pappaiya) And ORS v. The State Of Maharashtra
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.554 OF 2016 IN CRIMINAL APPEAL NO.464 OF 2016 BANTI @ RAMDAS ANNA GAIKWAD ) (PAPPAIYA) AND OTHERS )...APPLICANTS V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT Mr.Mandar Goswami i/b. Mr.K.S.Patil, Advocate for the Applicant. Ms.V.S.Mhaispurkar, APP for the Respondent - State.
CORAM
:
A. M. BADAR, J.
DATE :
1st FEBRUARY 2017.
P.C. :
This is an application for suspension of sentence and releasing the applicant / accused on bail during pendency of the appeal.
Though the applicant / accused along with other accused persons were prosecuted for offence punishable under Section 3(1)(ii), 3(2) and 3(4) of the Maharashtra Control of avk 1/7
Organized Crimes Act (MCOC Act) and under Sections 395, 385, 341, 323, 504 and 506 of the IPC as well as under Section 3 read with Section 25 of the Indian Arms Act, ultimately he along with three co-accused came to be convicted for offences punishable under Sections 3(1)(ii) and 3(4) of the MCOC Act, for which he was sentenced to suffer rigorous imprisonment for 5 years and to pay a fine of Rs.5 Lakh. The applicant / accused came to be acquitted of rest of the offences alleged against him. Heard the learned advocate appearing for the applicant / accused. He argued that the applicant / accused is behind bars for a period of about 3 years and short sentence of 5 years is imposed upon him. The learned advocate further argued that in view of the judgment of the Hon'ble Apex Court in State of Maharashtra vs. Shiva alias Shivaji Ramaji Sonawane and Others 1 the applicant / accused ought not to have been convicted of the offences punishable under the MCOC Act, more particularly, when he is acquitted of all offences under the IPC and the Indian Arms Act.
(2015) 14 Supreme Court Cases 272 avk 2/7
The learned APP opposed the application by contending that as the offence alleged is serious, the applicant cannot be released on bail during pendency of the appeal. I have carefully considered the rival submissions and also perused the copies of deposition as well as the impugned judgment and order of conviction. According to the prosecution case, the applicant is the kingpin of the organized crime syndicate and he along with other co-accused had attempted to extort huge amount from the informant by threatening him. It is seen that after considering the evidence adduced by the prosecution, the learned Trial Court has held that the prosecution has failed to prove the offences under the IPC and the Arms Act, and therefore, all accused were acquitted of offences punishable under Sections 395, 385, 341, 323, 504 and 506 read with Section 34 of the IPC, so also in respect of offences punishable under the Arms Act. In paragraph 9 of its judgment in the matter of Shiva alias Shivaji (supra) the Hon'ble Apex Court has held thus : avk 3/7
"9 It was in the above backdrop that the High Court held that once the respondents had been acquitted for the offence punishable under the IPC and Arms Act in Crimes No.37 and 38 of 2001 and once the Trial Court had recorded an acquittal even for the offence punishable under Section 4 read with Section 25 of the Arms Act in MCOCA Crimes No.1 and 2 of 2002 all that remained incriminating was the filing of charge sheets avk 4/7
against the respondents in the past and taking of cognizance by the competent court over a period of ten years prior to the enforcement of the MCOCA. The filing of charge sheets or taking of the cognizance in the same did not, declared the High Court, by itself constitute an offence punishable under Section 3 of the MCOCA. That is because the involvement of respondents in previous offences was just about one requirement but by no means the only requirement which the prosecution has to satisfy to secure a conviction under MCOCA.
What was equally, if not, more important was the commission of an offence by the respondents that would constitute "continuing unlawful activity". So long as that requirement failed, as was the position in the instant case, there was no question avk 5/7
of convicting the respondents under Section 3 of the MCOCA. That reasoning does not, in our opinion, suffer from any infirmity. It is, thus, clear that, commission of offence which will constitute continuing unlawful assembly is essential.
Considering the fact that the applicant / accused has already undergone more than half of the sentence imposed upon him by the learned Trial Court and the appeal will take its own time for disposal, his application deserves to be allowed, and therefore the order :
i) The application is allowed ii) Substantive sentence of imprisonment imposed upon the applicant / accused is suspended and he is directed to be released on bail on executing P.R.Bond avk 6/7
in the sum of Rs.20,000/- and on furnishing surety in like amount.
iii)As a condition of this order, applicant / accused should attend Dhule City Police Station, Dhule, on every first Sunday of the month in between 11 a.m. and 1 p.m. till disposal of the appeal.
iv)The applicant / accused should not indulge in any criminal activity during pendency of the instant appeal.
v) Failure to abide by the conditions would result in cancellation of the bail granted to the applicant / accused.
(A. M. BADAR, J.) avk 7/7