Jaydeep Dilip Taware v. State of Maharashtra

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5 In consideration of the facts of the case and the criminal antecedents of the accused, a proposal seeking approval under Section 23(1) of the Maharashtra Control of Organized Crimes Act, 1999 (“MCOCA” for short) was moved. Whereupon the approval was granted on 9th June, 2021 under Section 23(1)(a) of the MCOCA.

6 On 19th June, 2021, statement of injured (husband of the complainant) was recorded; wherein he disclosed following facts/events:

(I) In 2016, petitioner was elected as Gram Panchayat

(ii) In 2017, complainant was nominated by the

Nationalist Congress Party (NCP), to contest Zill Parishad elections; however, candidature of petitioner’s wife to contest Zilla Parishad elections was refused by the NCP;

(iii) Complainant, was elected as a member of Zilla

(iv) Efforts were made by the petitioner to stall sanction of bill raised, for the civil work executed by cousin of injured through wife of Prashant More, who is member of Panchayat;

(v) Injured was threatened by Petitioner and Prashant

(vi) On 13th July, 2021 injured was threatened by petitioner and Prashant More while executing the civil work

7 Thus, it is prosecution’s case that since husband of the complainant was securing many civil contracts and was gaining supremacy in the constituency and leverage in the political arena, a rival group leader Prashant Popatrao More conspired with the co-accused to eliminate the husband of the complainant and Akash Popatrao More (Juvenile-Son of Prashant Popatrao More) was asked to open the fire on the husband of the complainant, with a view that being juvenile, even if convicted, would not suffer a harsh punishment.

8 Petitioner was arrested on 6th July, 2021 as a member of, crime syndicate headed by Prashant Popatrao More. On the same day, applicant was produced before the Additional Sessions Judge, Pune in Crime No.305 of 2021 registered under Sections 307, 120B, 504, 506 of the Indian Penal Code, 1860 and Section 3(1)(ii), 3(4) of the MCOCA. Prosecution, set out particulars, complicity of the petitioner in the ‘organised crime’ whereupon Investigating Officer sought his police custody on grounds namely; “6-;krhy vkjksih v-ua- 6;kus;krhy vkjksih v-ua- 1 rlsp xqUg;krhy brj vkjksih v-ua- 2 rs 5;kaps’kh eksckbZy Qksuo#u,desdkauk liadZ dsyk vlY;kph nkV ‘’kD;rk vlY;kus xqUg;kP;k vuq’kaxkus eksckbZy Qksu uacj ?ksoqu R;kaps lh-Mh-vkj- ekxoqu R;kps fo’ys”"ku dj.ks vkgs- 7- lnjpk xqUgk gk vVd vkjksih va-u- 6 o R;kpk lk{khnkj va-u- 1;kl vfFkZd lgkî; iqjowu o fpFkko.kh nsoqu R;kauh vkilkr laxuer d#u dsyk vlY;kps riklkr fu”"iUu gksr vlqu R;kaps vk.k[kh dks.kh brj lkFkhnkj vkgsr vxj dls\;kckcr R;kapsdMs fopkjiql d#u rikl dj.ks vkgs-””””

9 The learned Additional Sessions Judge remanded the petitioner to the police custody till 14th July, 2021 and observed thus; “ I had gone through the case papers. It reveals that, there is progress in investigation. The offence is serious in nature. Some information is to be extracted from the accused. The reason as mentioned for grant of PCR are sufficient and reasonable. Hence, accused be sent in PCR till 14/07/2021.

11 On 21st July, 2021, Investigating Officer in the report under Section 169 of the Cr.P.C., informed the learned Sessions Judge, that investigation has not disclosed petitioner’s complicity in the offence of Organised Crime, either in form of funding the Crime Syndicate for promoting the unlawful activity; nor statement of co-accused, Rahul @ Rebel Yadav recorded under Section 18 of the MCOCA disclosed complicity of the petitioner, as a ‘member’ of ‘Crime Syndicate’ or in offence under Penal Code. Correspondingly, Investigating Officer informed the Court that at the material time, when attack, was held on husband of complainant, Call Detail Records reveal, petitioner’s location did not match the locations of coaccused. On these grounds, the Investigating Officer sought appropriate order to release the petitioner. On the very date, an application was moved by the petitioner below Exhibit 10 for the following reliefs; (a) In view of the report filed by the Investigating Officer under Section 169 of the Cr.P.C., he may kindly be released forthwith in connection with the Crime No.350 of 2021; (b) Any just and equitable order in the interest of justice may kindly be passed.

12 This application was opposed by the complainant on the ground that the Court is not empowered under Section 169 of the Cr.P.C. to release the accused on bail. However, the learned Additional Sessions Judge vide order dated 28th July, 2021 granted interim bail, which reads as under; “ ORDER [1] Application (Exh.10) is allowed. [2] Applicant – Jaydeep Taware be released on interim bail in connection with C.R. No.350/2021 registered with Baramati Taluka Police Station under Sections 307, 120-B, 504, 506 of the Indian Penal Code, u/s.3(25) (27), 4(25) of Arms Act and u/s. 3(1)(ii), 3(4) of MCOC Act, on executing P.R. Bond of Rs.15,000/- alongwith one or (emphasis supplied) two solvent sureties of the like amount on the following conditions:- (a) the applicant shall not tamper with the prosecution evidence in any manner whatsoever. (b) the applicant shall attend the concerned police station on every Monday till the decision of release application u/s. 169 of Cr.P.C. [3] The applicant shall furnish cogent documentary evidence in respect of his residence before this Court after his release on bail alongwith swearing an affidavit in that regard. Bail before remand/concerned Court.” 13 On 5th August, 2021, the complainant filed, protest petition and reply to a report under Section 169 of the Cr.P.C., submitted by the Sub-divisional Officer, Baramati.

14 The learned Additional Sessions Judge, Pune accepted the protest petition of the complainant and rejected report of the Investigating Officer under Section 169 of the Cr.P.C. vide order dated 16th August, 2021. Operative part of the order, which reads as under; “ ORDER 1] The Protest Petition (Exh.17) is hereby allowed. 2] The report u/s. 169 of Cr.P.C. dated 21/07/2021 filed by Investigating Officer is hereby rejected. 3] The Investigating Officer is directed to conduct the detailed investigation in the line of statements of injured and other witnesses as mentioned above, and submit detailed report at the time of filing chargesheet. 4] At the time of filing section 169 Cr.P.C. report, this court released the accused no.6- Jaydeep Taware on interim bail. Hence, he is directed to surrender himself before the concerned Investigating Officer on or before 18/08/2021 at

11.00 a.m. On failure to surrender, the warrant of arrest be issued against the accused no.6. (emphasis supplied) 5] In terms of above order, application is disposed of.” 15 Feeling aggrieved by the order dated 16th August, 2021, this Writ Petition under Article 227 of the Constitution of India read with Section 482 of the Cr.P.C. is preferred.

16 Pending petition, the learned Additional Public Prosecutor on instructions, assured that the State shall not arrest the petitioner till the petition is heard and disposed off.

17 Heard Mr. Nimbalkar, the learned counsel for the petitioner, Mr. Khamkhedkar, the learned prosecutor for the State and Mr. Manoj Mohite, the learned Senior Advocate for the respondent no.2(Complainant).

18 Herein the question is whether this Court, in supervisory jurisdiction under Article 227 of the Constitution of India, can examine and look over, the satisfaction recorded by the learned Special Court particularly, when it was founded on material, while, not accepting report under Section 169 of the Cr.P.C. forwarded by the Investigating Officer AND whether, the learned Court was justified in directing the Investigating Officer to conduct the detailed investigation.

19 Investigating Authorities have been empowered to submit report to the Magistrate that there is no evidence or reasonable grounds for suspension to justify the forwarding of the accused to the Magistrate and to release the accused from the custody on his executing bond with or without surety as the police officer may direct, to appear, if and when so required by the Magistrate empowered to take cognizance of the offence of police report and to try the accused to commit for trial. Once, report under Section 169 of the Cr.P.C. is submitted, the Magistrate has power to examine the report and its’ upto his discretion whether there are sufficient grounds to proceed the matter further or not. After examining the report, if the Magistrate thinks that no case is made out against the accused, he can release him. However, if the Magistrate is satisfied that there is sufficient material to prosecute the accused, he can issue process of proceedings under Section 204 of the Code even if the report under Section 169 of the Cr.P.C. filed by the police states that no evidence found against the accused, Magistrate can reject the report if he is satisfied. In the case of Amarnath Chaube v. Union of India in SLP (Criminal) 6951 of 2018, the Hon’ble Apex Court has held in paragraphs 8 and 9 as under:

. Drawing the analogy from the aforesaid judgment of the Apex Court, it is to be noted that although the Investigating Officer files report under Section 169 of the Cr.P.C., the Magistrate after examining the report concludes that the officer has not investigated properly and apparently unmindful in investigation, Court is not obliged to accept the report, but to it, and ensure that investigation is done in accordance with law. Preciously that has been done by the trial Court. Yet in another case, Vinubhai Haribhai Malaviya & Ors. v. State of Gujarat & Anr. reported in 2019 (17) SCC 1, the Hon’ble Apex Court has held that in the circumstances if the Magistrate does not agree with the police report, he may order further investigation, which is done in his capacity as supervisory authority in relation to investigation carried out by the police.

20 In the case at hand, the petitioner was arrested on 6th July, 2021 in the offence punishable under the MCOCA. His police custody was sought on the grounds which I have re-produced in paragraph 8 hereinabove. After going through the case-papers, the learned Judge remanded him to the police custody till 14th July, 2021. Whereafter he was remanded to magisterial custody for thirty days. All of sudden within fifteen days of petitioner’s arrest, Investigating Officer moved an application, taking recourse to Section 169 of the Cr.P.C. and sought release of the petitioner. The learned Judge although granted interim bail to petitioner but after hearing the complainant in support of the protest petition and after going through the investigation record noted his satisfaction in paragraphs 10 and 12 of the impugned order that there is sufficient material against the petitioner-accused which was founded on material i.e. statement Raviraj Taware (Injured); statement of complainant; statement of public servant Pramila Lokhande, Shailesh Dandwate and details of previous enmity between the injured and gang leader, Prashant Popatrao More. According to the learned Judge this material, prima-facie, establishes strong motive against accused no.6 (petitioner) and thus, noted; “There is sufficient evidence on record against accused no.6 as conspirator in commission of alleged crime.”

21 Thus, having gone through the material on record which prima-facie reveals petitioner’s complicity in the crime and in view of the satisfaction recorded by the learned Judge, founded on the material produced by the Investigating Officer, the impugned order rejecting the report under Section 169 of the Cr.P.C. cannot be interfered in supervisory jurisdiction of this Court. In my view, the learned Judge has not committed any error in exercise of the jurisdiction, the order impugned is not perverse. Thus, the order cannot be faulted with. Writ Petition is dismissed. (SANDEEP K. SHINDE, J.)

22 At this stage, the learned counsel for the petitioner, seeks protection for three weeks. In view of the facts of the case, I am not inclined to continue the protection, in view of statement made by the learned prosecutor for the State. (SANDEEP K. SHINDE, J.)