ARUN GULAB GAWLI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS judgment will dispose of Criminal Writ Petition No. 1338 of 1997 and Criminal Application No. 3806 of 1997. This is a petition under S. 482 of the Criminal Procedure Code with a prayer that this Court be pleased to set aside the order dated 5th December, 1997 passed by the learned Sessions Judge in the application for discharge being Application No. 987 of 1997 in Sessions Case No. 1221 of 1997.

(2.) FACTS as set out in the petition are brief and to the point. It is stated that the petitioner is an Indian National and resides permanently at Dagdi Chawl, Byculla, Mumbai with his mother, wife and children. He is stated to be presently lodged in Thane Central Jail, Dist. Thane. He is further stated to be president of a Political Party known as Akhil Bhartiya Sena. This Political Party is stated to be recognised by the Election Commission of India. In the petition itself it is stated that the petitioner is branded as a gang leader of a gang known as "gawli Gang". He has been accused of entering into conspiracy to commit the murder of one Natwarlal Desai who was shot dead on 19th August, 1997 in the compound of Tulsiani Chambers at Cuffe Parade, Mumbai. Accordingly to the petition, the prosecution case is that when Natwarlal Desai got down from his car on 19th August, 1997 near his office, two persons fired shots at him. Having been wounded by gun shot injuries, Natwarlal Desai, hereinafter referred to as "the deceased", was removed to Bombay Hospital where he was declared to be dead. According to the petitioner, the prosecution case further seems to be that Gawli gang had demanded monies from the deceased and have threatened him on phone. It is also the case of the prosecution that the deceased had been to Dagdi chawl in August, 1997 once. After the incident FIR was recorded by one Namesh Chagganlal Shah and few statements were recorded. Some panchanamas were also prepared in respect of C. R. No. 382 of 1997. After the investigation was over, charge-sheet against the petitioner was filed Copies of some of these statements have been collectively attached with the petition. Since the statements and the panchanama are all in Marathi, Mr. Sabnis, learned Senior Counsel, appearing for the petitioner, has very kindly made available for the Court English translations of all the documents. It is stated by the petitioner, which is reiterated by Mr. Sabnis, that the petitioner has been falsely implicated by the police. This is so, according to Mr. Sabnis, as the police had already falsely involved the petitioner in a number of cases. In all these cases, it is submitted by Mr. Sabnis, the petitioner has been released on bail. In two cases registered under Terrorist and Disruptive Activities Act, hereinafter referred to as "tada", being Special Case Nos. 42/91 and 31/1994 the petitioner has been acquitted. In other two cases being 864/94 and 1062/95 the petitioner has been discharged. The petitioner has been granted bail in nine cases bearing Nos. TADA Spl. Case Nos. 51/91 and 13/93 and Cases under various provisions of I. P. C. bearing Nos. 987/97, 193/97, 513/97, 308/88, 506/89 and 63/88. According to Mr. Sabnis, when the police did not succeed in the aforesaid cases they have foisted a case under Maharashtra Prevention of Dangerous Activities Act, hereinafter referred to as "mpda". Under this Act, the petitioner is kept in jail. The writ petition filed by the petitioner challenging the order of detention in that case is pending in this Court. It is further the case of Mr. Sabnis that it is only in the present case that the petitioner has been denied bail. He lays much stress on the fact that even according to the prosecution there is no direct involvement of the petitioner. The offence of conspirary is always used against the petitioner whenever the police fails to implicate him in any other case. After the receipt of the charge-sheet the petitioner preferred the application for discharge in the Court of Session at Mumbai being criminal application No. 987 of 1997. This application has been rejected by order dated 5th December, 1997 which is impugned in the present writ petition.

(3.) MR. Sabnis has taken the Court through all the statements made in the present case by the prosecution witnesses. It is submitted that the story put forward by the prosecution is so improbable that no reasonable person could form the opinion on the basis of the same even if proved that the petitioner is guilty of the offences with which he is charged. First of all Mr. Sabnis takes the statement made by Mr. Ramesh Chhaganlal Shah, the partner of the deceased. He points out that in this statement which is recorded on 19th August, 1997 i. e. the day of the incident, the only allegation made is that Mr. Shah is sure that the said incident had resulted from the extortion matter. The relevant portion of the statement is as under.