Bail Application No. 6/2023.
MHCC020000942023
IN THE COURT OF ADDITIONAL SESSIONS JUDGE MUMBAI,
AT GR. MUMBAI
CRIMINAL BAIL APPLICATION NO. 6 OF 2023.
IN
C.R. NO. 668 OF 2022.
Afzal Haji Khan
… Applicant.
Vs.
The State of Maharashtra,
(At the instance of RAK Marg Police Station,
Mumbai, Vide C.R.No.668/2022).
…Respondent.
Appearances :
Ld. Adv. Mr. Tajammul Usman Khan for the Applicant.
Ld. APP. Mr. Abhijeet Gondwal for the State/Respondent.
Ld. Adv. Mr. Arun Rajput for the Intervener.
CORAM : H.H. THE ADDITIONAL SESSIONS JUDGE
DR. A. A. JOGLEKAR (C.R.NO.37)
DATED : 17TH JANUARY, 2023.
ORAL ORDER
By this application the applicant Afzal Haji Khan being
accused in C.R.No.668/2022 registered with RAK Marg Police Station
for the offences punishable under Sections 307, 324 and 34 of the
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Bail Application No. 6/2023.
Indian Penal Code, (hereinafter referred to as, “IPC”) seeks bail under
Section 439 of the Code of Criminal Procedure, 1973 (In short,
“CrPC”).
THE CASE OF PROSECUTION IN SHORT ENSUES AS UNDER;
2.
It is the case of the prosecution that, as on 02.12.2022 at
about 22.15 hours the informant and his friend went to Wadala Ward
for giving Ferari Gold Perfume to a watchman Kawale and while they
were returning back towards Sir J. J. Marg at Dakshin Vahini,
Opposite to Sewree Court, the informant and his friend stopped their
vehicle for the purposes of urinating.
Also, that the informant’s
friend went for smoking at the other end and in the meantime a black
yellow coloured taxi halted near them. Three individuals alighted
from the vehicle and one of them initially assaulted the informant
with knife, wherein the knife hit the informant’s left hand. While the
knife fell from his hand the other person stabbed the informant with
the same knife on his back and left side of his stomach. Further, the
informant yelled for help and his friend immediately took him to Sir
J. J. Hospital in a taxi and the informant was accordingly treated
there. Thus, thereafter offence was registered and during the course
of investigation a supplementary statement of the informant was also
recorded and initially offence was registered under Section 324 of
IPC and post recording of supplementary statement, Section 307 of
IPC was invoked.
3.
Ld. Advocate for applicant/accused states that, the
applicant/accused is falsely implicated and it is a concocted case of
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Bail Application No. 6/2023.
the informant upon the provocation of one Salim Best who conceived
grudges against the applicant/accused. It is further, stated that, the
informant initially stated that, he was assaulted by three unknown
persons and that the applicant/accused was not named. The said
injuries are also not of grievous nature and are not sustained upon
the vital parts of the body. Hence, initially the offence was registered
under Section 324 of IPC and further Section 307 was invoked at the
instance of the informant. The applicant/accused further states that,
the so called witness Maaz Shaikh and Salim Best are hand in gloves
with the informant and in order to counter blast the complaint held
at the instance of the applicant/accused against the said Salim Best.
Applicant/accused acted as whistle blower in the said crime which
has been registered against Salim Best. So also, the informant is
habitual in filing false cases and that considering the substratum of
FIR no case under Section 307 of IPC is made out. Hence, the Ld.
Advocate for applicant/accused prayed for enlargement of the
applicant/accused on bail.
4.
Per contra the prosecution has filed their reply vide Exh.2,
and inter alia have resisted the application upon various grounds. It is
categorically stated that, the Applicant/accused has in all 23 offences
registered against him with nearly 12 police stations and the said
offences in the said matters are more or less similar in nature as that
of present crime or rather more heinous than the present crime and
therefore, the applicant/accused is accustomed to such acts. It is
further stated that, the wanted accused are yet to be arrested and if
the applicant/accused is enlarged on bail, he might aid them to
further abscond.
Hence, the Ld. Prosecutor further apprehended
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Bail Application No. 6/2023.
abscondance, tampering of evidence and threatenings to prosecution
witnesses.
Hence, the Ld. Prosecutor prayed for rejection of
application.
5.
Ld. Advocate for Intervener has also resisted the application
thereby stating that, the Investigating Officer was biased in the
investigation with regard to incident of assault and initially had
invoked Section 324 inspite of the fact that, the offence was very
grievous in nature.
Also, that the prosecution has not taken any
initiative to arrest the wanted/accused and it was only when the
informant urged before the Superior Officers, that the investigating
officer invoked such relevant sections in the matter.
It is further
stated that, the investigating officer also has failed to collect the
CCTV Footage from the spot of incident and the intervener
categorically alleges that such footage was destroyed by accused
persons. Therefore, enlarging the applicant/accused will naturally
aid for tampering of evidence and would naturally result into an
unfair investigation. Hence, the Ld. Advocate for intervener prayed
for rejection of application.
6.
Heard Ld. Advocate for Applicant/accused, Ld. Prosecutor
for the State and Ld. Advocate for Intervener. Perused application
and reply.
7.
On meticulous examination of the case record filed by the
either parties it evinces to myself that, undoubtedly there is a prior
animosity between either set of parties, but in this regard considering
the substratum of FIR it is evident that, the informant was assaulted
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Bail Application No. 6/2023.
with a weapon i.e. knife on his back left side of stomach and left
hand. The Ld. Prosecutor has invited the attention of this Court on
the medical documents, wherein it evinces to myself that, the
department of radiology has categorically stated that, there is a
defect of 2.2 cm. noted in left lumbar fusion and also have stated for
fractures e/s/o, therefore, the same at this juncture deserves
consideration, more especially when the investigation is at a nascent
stage.
8.
Ld. Prosecutor also has brought on record the criminal
antecedents to the discredit of the applicant/accused and the same
are to the tune of 23 offences. Ld. Advocate for applicant in order to
rebut such contention has placed on record correspondence of Special
Executive Magistrate dated 25.11.2020, Tardeo Division, Mumbai,
wherein the applicant/accused has shown to be acquitted in nearly
12 offences out of the above stated. Inspite of this the remnant 10
offences cannot be ignored at this juncture.
9.
Moreover, while deciding an application for bail it is settled
that the Court is required to see whether the primafacie case exists or
not. It is not necessary to make roving enquiry or examining the
merits of prosecution case. And thus the medical documents in this
regard would naturally deserve consideration at this nascent stage.
10.
Ld. Advocate for intervener has relied on the case of The
State of Orissa Vs. Mahimananda Mishra, Criminal Appeal No.
1175/2018 (Arising out of SLP (Criminal) No. 5440/2017),
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Bail Application No. 6/2023.
decided on 18.09.2018, wherein the Hon’ble Supreme Court has
observed that,
“Since the investigation is yet to complete and trial is
yet to begin, it would not be proper for us to dwell
upon the subject matter in detail at this stage, lest it
may prejudice the case of either of the parties
during trial. However, prima facie, it is brought on
record by the State that there was severe animosity
between the deceased and the respondent, as is
evidenced by the fact that at one point an
intervention by the district administration was
necessitated to keep the peace. The statement of
the family members of the deceased discloses that
the respondent had given death threats to the
deceased. A letter of the deceased was seized from
the house of the deceased during the course of
investigation which discloses that the deceased was
under the apprehension of his death by the
respondent due to business rivalry.”
11.
Thus, considering the conspectus of the aforesaid
case law it is evident that, the Hon’ble Supreme Court has
categorically observed that, when the investigation is yet to conclude
such relief of enlargement will have no bearing, more especially
when there is severe animosity between the parties.
Therefore,
considering the same, I do humbly submit that, it can be well applied
to the case in hand. Also, that as the investigation is at nascent stage
granting of any such relief would naturally derail the momentum of
investigation. Hence, I hold that, there is every possibility that, the
applicant/accused might tamper with the prosecution evidence and
therefore, I do not find this as a fit case for grant of the relief as
prayed by the applicant/accused. In the backdrop of the aforesaid
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Bail Application No. 6/2023.
facts, I hold that, as the application deserves no consideration. Hence,
order infra: –
ORDER
Bail Application No. 6/2023 stands rejected and
disposed of accordingly.
DR.
ABHAY
AVINASH
JOGLEKAR
Date : 17.01.2023.
Digitally signed by
DR. ABHAY
AVINASH
JOGLEKAR
Date: 2023.01.20
17:18:21 +0530
(DR. A. A. JOGLEKAR)
Additional Sessions Judge,
City Civil & Sessions Court,
Gr. Bombay (C.R.No.37)
Dictated on
: 17.01.2023.
Transcribed on : 17.01.2023.
HHJ signed on : 20.01.2023.
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Bail Application No. 6/2023.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
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