Overview of the Court’s Decisio

The Court of Additional Sessions Judge, Mumbai, presided over by H.H. DR. A. A. JOGLEKAR (C.R. No. 37), on January 17, 2023, rejected the bail application (Criminal Bail Application No. 6 of 2023) filed by the accused, Afzal Haji Khan.

The applicant sought bail under Section 439 of the Code of Criminal Procedure, 1973 (CrPC) in connection with C.R. No. 668 of 2022 registered with RAK Marg Police Station for offences under Sections 307 (Attempt to murder), 324 (Voluntarily causing hurt by dangerous weapons or means), and 34 (Acts done by several persons in furtherance of common intention) of the Indian Penal Code, 1860 (IPC).

The Court found that given the severity of the injury, the existence of prior animosity, the accused’s extensive criminal history, and the nascent stage of the investigation, granting bail would likely derail the momentum of the investigation and could lead to tampering with prosecution evidence.

Prosecution’s Case and Alleged Incident

The incident occurred on December 2, 2022, at approximately 10:15 p.m. The informant and his friend had stopped near Sewree Court. According to the prosecution:

• A black-and-yellow taxi stopped nearby, and three individuals alighted.
• One person initially assaulted the informant with a knife, striking his left hand.
• After the knife fell, another person stabbed the informant on his back and the left side of his stomach with the same knife.
• The informant was immediately taken to Sir J. J. Hospital for treatment.
• Initially, the offense was registered under Section 324 IPC, but after recording a supplementary statement from the informant, the more serious Section 307 IPC (Attempt to Murder) was invoked.

Arguments Presented to the Court

Applicant’s (Afzal Haji Khan) Contentions

The applicant’s advocate, Mr. Tajammul Usman Khan, argued that:

• The applicant was falsely implicated in a concocted case due to grudges held by one Salim Best.
• The informant initially failed to name the applicant, stating he was assaulted by three unknown persons.
• The injuries sustained were not of a grievous nature and were not on vital parts of the body, suggesting Section 307 IPC was wrongly invoked only at the informant’s instance.
• The witnesses (Maaz Shaikh and Salim Best) were colluding with the informant to counter-blast a prior complaint filed by the applicant against Salim Best (where the applicant acted as a “whistle blower”).
• The informant is habitual in filing false cases.

State’s (Prosecution) Resistance

The Ld. APP, Mr. Abhijeet Gondwal, strongly opposed the application, highlighting several key factors:

• The applicant has a staggering 23 offenses registered against him across nearly 12 police stations, many of which are similar or more heinous than the present crime, indicating he is “accustomed to such acts.”
• The wanted accused are yet to be arrested, and releasing the applicant could lead him to aid their abscondance.
• There is a high apprehension of abscondance, tampering with evidence, and threatening prosecution witnesses.

Intervener’s Submission

The Ld. Adv. Mr. Arun Rajput for the Intervener (presumably the victim or a concerned party) also resisted the bail, adding that:

• The Investigating Officer was biased, initially invoking only Section 324 IPC despite the grievous nature of the offense.
• The IO failed to collect the CCTV footage from the scene, which the Intervener alleges was destroyed by the accused.
• Enlarging the accused would naturally aid in tampering with evidence and lead to an unfair investigation.

The Court’s Reasoning and Grounds for Rejection

The Court, after hearing all parties and meticulously examining the records, grounded its rejection on the following critical points:

1. Prima Facie Case and Severity of Injury: The Court noted that the informant was assaulted with a knife on his back, left side of the stomach, and left hand. Crucially, the Court considered the medical documents from the Department of Radiology, which indicated a defect of 2.2 cm. and “fractures e/s/o” (suggesting fractures) in the left lumbar fusion. The Court held that these medical documents deserved “consideration at this nascent stage” as they constitute a prima facie case.
2. Criminal Antecedents: The prosecution’s submission of 23 offenses against the applicant was given significant weight. While the applicant’s counsel showed correspondence indicating acquittal in nearly 12 of those offenses, the Court pointed out that the “remnant 10 offenses cannot be ignored at this juncture.”
3. Nascent Stage of Investigation and Prior Animosity: The Court emphasized the settled principle that while deciding bail, the Court must only see whether a prima facie case exists and avoid making a roving inquiry into the merits. It explicitly applied the Supreme Court’s observations in the case of The State of Orissa Vs. Mahimananda Mishra, which cautioned against granting bail when the investigation is incomplete, especially where there is severe animosity between the parties.

The Court concluded that since the investigation is at a nascent stage, granting bail would “naturally derail the momentum of investigation” and create “every possibility that, the applicant/accused might tamper with the prosecution evidence.”

Final Order

Based on the cumulative effect of the serious nature of the injuries, the applicant’s extensive criminal record, the existence of prior animosity, and the incomplete status of the investigation, the Court passed the order:

Bail Application No. 6/2023 stands rejected and disposed of accordingly.