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HIGH COURT OF DELHI
BAIL APPLN. 2013/2015
MUKESH SAINI
Appellant
Through Mr Ra,jesh Mahale and Mr Amit, Advs.
BAIL APPLN. 2013/2015
MUKESH SAINI
Appellant
Through Mr Ra,jesh Mahale and Mr Amit, Advs.
VERSUS
STATE BY DEFENCE COLONY POLICE STATION Respondent
Through Mr Hireiii Sharma, Additional Public Prosecutor for the State Sub Inspector
Pushpender Police Station Defence Colony, New Delhi
Through Mr Hireiii Sharma, Additional Public Prosecutor for the State Sub Inspector
Pushpender Police Station Defence Colony, New Delhi
CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA
01.03.2016 Vide this application under Section439 Cr.PC, the petitioner seeks regular bail in
Sessions Case No.51/2013 FIR No.107/2012 under Sections 394/397, 302, 120B, 411, 412 IPC and 3 and 4 of the Maharashtra Control of Organized Crime Act, 1999
(hereinafter MCOCA) Police Station Defence Colony, New Delhi.
It is submitted by counsel for the petitioner that provisions of MCOCA are not attracted in the instant case. The only allegation against the petitioner is that he had passed on the information about departure of cash van from ICICI Bank Currency Chest from Hauz Khas. The co-accused have already been released on bail. Besides this case, the petitioner is involved in one othercase. The trial of the case going to takea longtime as there are 141 witnesses named in the charge-sheet andonlyfew of the witnesses have been examined so far. The petitioner is languishing in jail for over two years and nine months as such he is entitled to be released on bail. Reliance has been placed on
DattatrayKrishnaji Ghulev. State ofMaharashtra &Ann, AIR 2007 SC 1133.
The application is vehemently opposed by learned Additional Public Prosecutor for the State on the ground that the offence alleged against the petitioner is very serious in nature. Besides framing charge under various sections ofIndian Penal Code including
2016:DHC:8212 302 IPC,the petitioner has also been charged for offence under Section 3(1)(3(2) 3(4)of
! MCOCA. The recovery of Rs.1.35 lac has been effected from the petitioner. The motorcycle which was used for transportation and conducting recee was also seizedfrom his possession as suchthe petitioner does not deserve to be released on bail.
As per the prosecution case on 28.09.2012 at about 1.19 pm, an information regarding an incident of firing in front of D-15, Defence Colony was received in Police
Station Defence Colony. Sub Inspector Shiv Dev Singh alongwith staff reached the spot where one Hyundai Verna car of white colour bearing registration number HR26 AQ
0051 was found standing in between the road. On the spot, one Anil Kumar alongwith one Ashok Kumar were present. It was informed on cursory enquiry that one guard
Munne sustainedinjury in chest and was shiftedto hospitalby another guardAjab Singh.
It was revealed that the armed assailants have robbed the Eeco car having two boxes containing 5.25 crores, two guns, mobile phone etc. Victim Munne Singh was found admitted in hospital whodiedduring treatment dueto gunshot injuries. During the course of investigation analysis of suspected numbers revealed the address of Mukesh Saini
(petitioner herein). He was arrested and on interrogation he disclosed that he passed on the information regarding the movement of cash to main van from ICICI cash chest Huaz
Khas with the assistance of one Umesh Satble. He received Rs.2.70 lacs from Rashmi wife of Hari Kishan Sharma as part payment in lieu of the tip off given by him in commission of the robbery to be equally distributed between Umesh and himself and accordingly he gave Rs.1.35 lacs. A mobile phone was recovered which was used in passing the information to Hari Kishan in commission of offence. The motorcycle used in transportation and conducting recee was also seized from his possession. His confessional statement under Section 18(5) of MCOCA was recorded. Duringthe course of investigation, other accused were also arrested and recovery was effectedfrom them.
Since the provisions of MCOCA have been invoked in the instant case, besides consideration which weigh with the Court while granting bail under Section 439 Cr.PC, the provisions contained in sub Section (4) of Section 21 of MCOCA haveto be borne in mind. In Dattatray Krishnaji Ghule (supra) relied upon by learned counsel for the petitioner, reference was made to Chenna Boyanna Krishna Yadav v. State of
Maharashtra, (2007) 1 SCC 242 where scope and purportof sub Section (4) of Section
21 ofMCOCA was explained as under;
"It isplain from a bare reading ofthe non-obstante clause in the sub-section that the power to grant bail by the High Court or
Court ofSessions is not only subject to the limitations imposed by
Section 439 ofthe Code but is also subject to the limitationsplaced by Section 21(4) ofMCOCA. Apartfrom the grant ofopportunity to the Public Prosecutor, the other twin conditions are: the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty ofthe alleged offence and
\j that he is not likely to commit any offence while oh bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty ofthe alleged offence. The reasonable belief contemplated in theprovisions requires existence ofsuchfacts and circumstances as are sufficient in themselves tojustijy satisfaction that the accused is not guilty of the alleged offence. Thus, recording offindings under thesaidprovision is a sine qua nonfor granting bail under MCOCA."
In light of this, what needs to be considered whether there is a reasonable ground to believe that the petitioner is not guilty of offence with which he has been charged with
^ and further that he isnot likely to commit offence under MCOCA while on bail.
It is not in dispute that besides framing charges under various sections of Indian
Penal Code, the petitioner has also been charged for offences under MCOCA and the said order of framing charge against the petitioner has not been challenged by him. At this juncture, it is not in desirable to weigh the evidence meticulously to return a positive finding as to whether or not the petitioner has committed the offence with which he has been charged with.
Keeping in view the role attributed to the petitioner in the charge-sheet coupled with the fact that as per the nominal roll, the petitioner is also involved in case FIR
No.67/2008 under Sections 418, 420, 467 IPC Police Station Burari, Delhi, I do not deem it appropriate to release the petitioner on bail at this stage. The petitioner cannot claim paritywith co-accused whohavebeengranted bail as in their caseprovisions of MCOCA were not invoked.
The bail application is accordingly dismissed.
However, nothing stated hereinabove shall tantamount to any expression of opinion on merits ofthe case.
MARCH 01,2016/.^ SUNITA GUPTA, J
01.03.2016 Vide this application under Section439 Cr.PC, the petitioner seeks regular bail in
Sessions Case No.51/2013 FIR No.107/2012 under Sections 394/397, 302, 120B, 411, 412 IPC and 3 and 4 of the Maharashtra Control of Organized Crime Act, 1999
(hereinafter MCOCA) Police Station Defence Colony, New Delhi.
It is submitted by counsel for the petitioner that provisions of MCOCA are not attracted in the instant case. The only allegation against the petitioner is that he had passed on the information about departure of cash van from ICICI Bank Currency Chest from Hauz Khas. The co-accused have already been released on bail. Besides this case, the petitioner is involved in one othercase. The trial of the case going to takea longtime as there are 141 witnesses named in the charge-sheet andonlyfew of the witnesses have been examined so far. The petitioner is languishing in jail for over two years and nine months as such he is entitled to be released on bail. Reliance has been placed on
DattatrayKrishnaji Ghulev. State ofMaharashtra &Ann, AIR 2007 SC 1133.
The application is vehemently opposed by learned Additional Public Prosecutor for the State on the ground that the offence alleged against the petitioner is very serious in nature. Besides framing charge under various sections ofIndian Penal Code including
2016:DHC:8212 302 IPC,the petitioner has also been charged for offence under Section 3(1)(3(2) 3(4)of
! MCOCA. The recovery of Rs.1.35 lac has been effected from the petitioner. The motorcycle which was used for transportation and conducting recee was also seizedfrom his possession as suchthe petitioner does not deserve to be released on bail.
As per the prosecution case on 28.09.2012 at about 1.19 pm, an information regarding an incident of firing in front of D-15, Defence Colony was received in Police
Station Defence Colony. Sub Inspector Shiv Dev Singh alongwith staff reached the spot where one Hyundai Verna car of white colour bearing registration number HR26 AQ
0051 was found standing in between the road. On the spot, one Anil Kumar alongwith one Ashok Kumar were present. It was informed on cursory enquiry that one guard
Munne sustainedinjury in chest and was shiftedto hospitalby another guardAjab Singh.
It was revealed that the armed assailants have robbed the Eeco car having two boxes containing 5.25 crores, two guns, mobile phone etc. Victim Munne Singh was found admitted in hospital whodiedduring treatment dueto gunshot injuries. During the course of investigation analysis of suspected numbers revealed the address of Mukesh Saini
(petitioner herein). He was arrested and on interrogation he disclosed that he passed on the information regarding the movement of cash to main van from ICICI cash chest Huaz
Khas with the assistance of one Umesh Satble. He received Rs.2.70 lacs from Rashmi wife of Hari Kishan Sharma as part payment in lieu of the tip off given by him in commission of the robbery to be equally distributed between Umesh and himself and accordingly he gave Rs.1.35 lacs. A mobile phone was recovered which was used in passing the information to Hari Kishan in commission of offence. The motorcycle used in transportation and conducting recee was also seized from his possession. His confessional statement under Section 18(5) of MCOCA was recorded. Duringthe course of investigation, other accused were also arrested and recovery was effectedfrom them.
Since the provisions of MCOCA have been invoked in the instant case, besides consideration which weigh with the Court while granting bail under Section 439 Cr.PC, the provisions contained in sub Section (4) of Section 21 of MCOCA haveto be borne in mind. In Dattatray Krishnaji Ghule (supra) relied upon by learned counsel for the petitioner, reference was made to Chenna Boyanna Krishna Yadav v. State of
Maharashtra, (2007) 1 SCC 242 where scope and purportof sub Section (4) of Section
21 ofMCOCA was explained as under;
"It isplain from a bare reading ofthe non-obstante clause in the sub-section that the power to grant bail by the High Court or
Court ofSessions is not only subject to the limitations imposed by
Section 439 ofthe Code but is also subject to the limitationsplaced by Section 21(4) ofMCOCA. Apartfrom the grant ofopportunity to the Public Prosecutor, the other twin conditions are: the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty ofthe alleged offence and
\j that he is not likely to commit any offence while oh bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty ofthe alleged offence. The reasonable belief contemplated in theprovisions requires existence ofsuchfacts and circumstances as are sufficient in themselves tojustijy satisfaction that the accused is not guilty of the alleged offence. Thus, recording offindings under thesaidprovision is a sine qua nonfor granting bail under MCOCA."
In light of this, what needs to be considered whether there is a reasonable ground to believe that the petitioner is not guilty of offence with which he has been charged with
^ and further that he isnot likely to commit offence under MCOCA while on bail.
It is not in dispute that besides framing charges under various sections of Indian
Penal Code, the petitioner has also been charged for offences under MCOCA and the said order of framing charge against the petitioner has not been challenged by him. At this juncture, it is not in desirable to weigh the evidence meticulously to return a positive finding as to whether or not the petitioner has committed the offence with which he has been charged with.
Keeping in view the role attributed to the petitioner in the charge-sheet coupled with the fact that as per the nominal roll, the petitioner is also involved in case FIR
No.67/2008 under Sections 418, 420, 467 IPC Police Station Burari, Delhi, I do not deem it appropriate to release the petitioner on bail at this stage. The petitioner cannot claim paritywith co-accused whohavebeengranted bail as in their caseprovisions of MCOCA were not invoked.
The bail application is accordingly dismissed.
However, nothing stated hereinabove shall tantamount to any expression of opinion on merits ofthe case.
MARCH 01,2016/.^ SUNITA GUPTA, J
JUDGMENT