MHCC020041662022
IN THE SESSIONS COURT FOR GREATER MUMBAI
AT MUMBAI
CRIMINAL BAIL APPLICATION NO.726 OF 2022
(CRIME NO.884 OF 2021, DHARAVI POLICE STATION)
CNR No.MHCC02-004166-2022
Badrujama Nayarebabar Khan @ Gattu,
Aged about 42 years, Indian Inhabitant,
Residing at Flat No.1003, 10th Floor,
Diamond Apartment, Jasmin Mill Road,
Shahu Nagar, Mahim (East),
Mumbai – 400 017, and presently lodged
in Arthur Road Jail, Mumbai.

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… Applicant
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… Respondent
Vs.
State of Maharashtra,
At the instance of Dharavi police station.

Appearances :Mr. Ghanshyam Upadhyay i/b Law Juris, Ld. Adv. for applicant.
Mr. J. N. Suryawanshi, Ld. A.P.P. for respondent/State.
Ms. Kritika Agarwal h/f Mr. Sharif Shaikh, Ld. Adv. for intervener.
CORAM : PURUSHOTTAM B. JADHAV,
ADDL. SESSIONS JUDGE,
COURT ROOM NO.22.
DATE : 29th April, 2022.
ORDER
1.

This
is
an
application
for
regular
bail.

The
respondent/State resisted it by filing say at Exh.2 and additional say at
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Exh.6. Intervener – Amarjeet Hariprasad Varun, one of the victims and
brother of the first informant is allowed to assist learned A.P.P. He filed
written notes of argument at Exh.5 and rejoinder at Exh.7.
2.

Read the application, say Exh.2, additional say Exh.6,
written notes of arguments and rejoinder filed by intervener at Exhs.5
and 7. Heard both sides. Perused the record.
3.

This application relates to Crime No.884 of 2021 registered
with Dharavi police station. The investigation is completed and the
charge-sheet is already filed for offence punishable under Sections 307,
326, 324, 452, 427, 380, 143, 144, 146, 147, 148, 149, 506(ii), 120-B,
109 of the Indian Penal Code, Section 4 r/w. 25 of the Indian Arms Act
ad Section 37(1)(a) r/w. 135 of the Maharashtra Police Act.
4.

The prosecution case, in brief, is that accused No.5 Parvez
instigated to commit offence by giving information to the applicant,
that the first informant and his brother/the intervener abused to the
applicant. Thereon, the applicant hatched conspiracy to kill the
informant and his brother with the help of accused Nos.1 to 4, 6, 8 to
13. At the instance of the applicant, on 02/10/2021, at about 12.45
hours, other accused armed with deadly weapons like sword, iron rod,
wooden bamboo etc. trespassed into the first informant’s office ; and
attempted to kill the first informant and also caused grievous injury to
his brother with the help of the deadly weapons. Accused Nos.1 and 2
also stolen two mobiles from the office table. Accused Nos.1 to 4, 6, 8
to 13 also caused wrongful loss by breaking the office. They also
threatened to kill the first informant and his brother. At that time, order
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under Section 135(1)(a) of the Maharashtra Police Act was in force. On
such allegations, the aforesaid prosecution is launched against the
applicant and other accused.
5.

It is not the case that the applicant was present at the time
of incident on 02/10/2021. As explicit from the allegations, it is alleged
that he hatched conspiracy to kill the first informant and his brother
with the help of other accused. There is no direct evidence on this fact.
According to the prosecution, the C.D.Rs. of the mobile phone of the
applicant and also of accused Nos.4, 6, 9, 10 and 13 have been
obtained during the investigation. Learned A.P.P. submitted that it is
revealed in the analysis of the C.D.Rs. that all these accused were in the
constant touch of each other at the relevant time and it shows that
other accused have committed offence at the instance of the applicant.
6.

Learned Advocate for the applicant submitted that these
accused and the applicant are either close relatives or the friends and
therefore, they had made phone calls to each other ; and therefore, it
cannot be said that this is incriminating material against accused. The
applicant may have been right, if this was the only circumstance. But,
the allegations shows motive/cause behind the crime that accused No.5
told the applicant that the first informant and his brother abused the
applicant. Secondly, it is alleged that all the accused are members of
the gang headed by the applicant. The most of the accused have crimes
registered against them. Considering all these circumstances, this Court
cannot accept the applicant’s submission that there is no material on
record showing his involvement in the present case.

Addl. Sessions Judge
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7.

BA 726/22
Learned Advocate for the applicant invited my attention
towards the toll receipts ranging from 24/09/2009 to 28/09/2009 and
documents issued by Gram Pradhan of the village of the village of the
applicant and others. It is not disputed that the applicant is arrested on
24/10/2021 from his native place in Uttar Pradesh. Learned Advocate
for the applicant submitted that the above circumstances show that the
applicant was at his native place from 28/09/2021 to 24/10/2021 ;
and therefore, the applicant can’t be present on the day of incident i.e.
02/10/2021. It may be noted that it is not alleged that he actually
participated in the incident. It is alleged that he hatched the conspiracy
with other accused. Secondly, whether the applicant was at his native
place from 28/09/2021 to 24/10/2021 is disputed question of the fact.
8.

According to the applicant, his Advocate had sent letter to
the learned Commissioner of Police and other police officer stating that
at the relevant time, the applicant was at his native place and his
nephew was present in Holy Family Hospital, Bandra, where his father
was admitted and operated for heart ailment. Learned Advocate for the
applicant submitted that the Investigating Officer has not investigated
these facts of defence and no material produced along with the chargesheet in that respect. He relied on the decisions of Hon’ble Supreme
Court in the matters of Jamuna Chaudhary and others Vs. State of
Bihar (MANU/SC/0119/1973) and Jugal Kishore and others Vs. State
of Madhya Pradesh (MANU/MP/0262/1989).
9.

It cannot be disputed that the duty of the Investigating
Officers is not merely to bolster up a prosecution case with such
evidence as may enable the Court to record a conviction but to bring
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out the real unvarnished truth as held in Jamuna’s case (supra). In
Jugal Kishore’s case (supra), according to the ruling, the criminal
proceeding has been quashed on the ground that the Investigating
Officer did not investigate the defence put forth by the accused. It may
be noted that the criminal prosecution in that case, was for offence
under Section 448 of the Indian Penal Code and the accused had taken
defence that he was tenant of the Income Tax Department. The defence
was crucial. It is observed that if the assertions of the accused were
true, there would be no case, even prima facie of house trespass against
the accused. It is further observed that no tenant can be prosecuted for
the offence of house trespass on the allegation of entering into the
tenanted premises. That means, it was such defence of the accused, if
investigated, no case was made out. In the present case, it is not so.
10.

Learned Advocate for the applicant invited my attention
towards the observation of my learned brother Judge made in bail
application of co-accused Parveez i.e. bearing Criminal Bail Application
No.2774 of 2021, decided on 15/11/2021. It is observed as follows :
“6. I have carefully examined the papers, medical
papers and other documents relating to the investigation,
which are produced by the staff of Dharavi Police Station.
Injury Certificates of both i.e. informant and witness,
indicate that there were simple injuries on the legs and the
portion below waist of their bodies. These simple injuries
prima-facie indicate force and intention pointing out that
ingredients of Section 307 of I.P.C. do not attract. Say of
Investigating Officer clearly indicates that some
investigation was already undertaken. In my opinion, for
collecting CDR, CCTV footage, SDR and arrest of other
accused, who are allegedly absconding ; detention of the
present applicant is not necessary. It cannot be ignored
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that there are dependents on the applicant. Even
otherwise, no specific role is attributed to him. In these
premises, I hold that there is nothing to point out active
involvement of the accused in committing offence under
Section 307 of I.P.C. If certain conditions are imposed on
the applicant, all objections raised by the prosecution can
be safeguarded.”
11.

Learned Advocate sought the bail to the applicant on the
ground of parity. Learned A.P.P. has submitted that the applicant
hatched the conspiracy of the offence, therefore, the applicant is the
main accused. He further submitted that the applicant committed two
offences after the commission of the present crime and therefore, if he
released on bail, he would repeat the offence. He also submitted that
the applicant has also criminal antecedents. He submitted that
therefore, the applicant is not entitled for the bail on the ground of
parity.
12.

I considered the rival submissions carefully. The applicant
relied on number of rulings holding that the accused is entitled for bail
on ground of parity. These legal principles are not disputed by the
respondent/State and therefore, I do not refer those rulings. It is not
disputed that the case of both accused must be on same footing.
13.

It is not disputed that 13 crimes were registered against
the applicant. The say filed by the respondent/State itself shows that
five cases are already disposed of. One is present case. The five cases
are pending and two cases are under investigation. There was no
criminal case on bailed out accused Parveez. The role of the present
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applicant is as conspirator, whereas there was no specific role of
Parveez. The applicant had committed two offences after the
commission of the present crime. Parveez had not committed any such
offence. It is also to be noted that in Crime No.295/2022, which F.I.R. is
filed along with Exh.6, it is alleged that at the instance of the applicant,
one of witness, in this case, has been threatened by one unknown
person. Considering these aspects, it is clear that the case of the
applicant is not at par bailed out co-accused Parveez.
14.

That doesn’t mean that therefore, the bail application of
the applicant deserves to be rejected. This Court is duty bound to
consider the present application independently. In bail application of
Parveez, my learned brother Judge specifically observed that the simple
injuries sustained to both the victims prima-facie indicate force and
intention pointing out that ingredients of Section 307 of I.P.C. do not
attract. When there are simple injuries and it is not claimed anywhere
that the victims had sustained any hurt which endangers life or which
caused the sufferer to be during the space of twenty days in severe
bodily pain, or they were unable to follow the ordinary pursuits, it
cannot be said that there is case for offence under Section 326 of the
Indian Penal Code. Offence under Sections 307 and 326 of the Indian
Penal Code are grave offences in this case. Other all offences are not so
serious. It is also to be noted that the investigation is already
completed. The applicant is in the custody from 27/10/2021. So far as
tampering of witness at the instance of the applicant is concerned, it is
not the say of the respondent/State that they found that F.I.R. prima
facie true. That F.I.R. is filed after filing this bail application. It is not
the case that the applicant himself tampered any witness in this case or
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any other case. It is also not the case that the applicant did not attend
the Court regularly in the cases registered against him. It is also not the
case that the applicant jumped the bail or committed breach of any bail
condition in those cases. It is not the case that the applicant has been
convicted in any case. Considering all these factors, I am of the opinion
that it would be just and proper to release the applicant on some
conditions. Accordingly, I pass following order :ORDER
1.

Bail Application No.726 of 2022 is hereby allowed.

2.
Applicant Badrujama Nayarebabar Khan alias Gattu in
C.R. No.884 of 2021 registered with Dharavi police station for the
offence punishable under Sections 307, 326, 324, 452, 427, 380, 143,
144, 146, 147, 148, 149, 506 (ii), 120-B, 109 of the Indian Penal Code,
Section 4 r/w. 25 of the Indian Arms Act and Section 37(1)(a) r/w. 135
of the Maharashtra Police Act, shall be released on bail on executing
P.R. bond of Rs.30,000/- with one or more solvent sureties in the sum
aggregating to Rs.30,000/-, and on following conditions :(a)
He shall not directly or indirectly make any inducement,
threat or promise to any person acquainted with the facts of the case so
as to dissuade him from disclosing such facts to the Court or any police
officer or tamper with the evidence ;
(b)
He shall furnish his detailed address, mobile/contact
number, address proof, identity proof at the time of furnishing bail ;
(c)
In case of change of his residence or mobile/contact
number, he shall inform it to the Court and Investigating Officer ;
(d)
He shall attend the Court regularly ;
(e)
He shall not leave the jurisdiction of this Court without the
permission of concerned Metropolitan Magistrate and if the case is
committed to this Court, without the permission of this Court.

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3.
Bail shall be furnished before concerned Metropolitan
Magistrate. If the case is committed to this Court, the bail shall be
furnished before this Court.
4.

Bail Application is disposed of accordingly.
Digitally signed
by
PURUSHOTTAM
BHAURAO
JADHAV
Date:
2022.05.04
15:45:16 +0530
( Purushottam B. Jadhav )
ADDL. SESSIONS JUDGE,
CITY CIVIL & SESSIONS COURT,
GREATER MUMBAI.

Date : 29/04/2022.
Directly typed on Computer on
Printed on
Signed on
: 29/04/2022.
: 04/05/2022.
:
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME
04/05/2022 at 3.45 p.m.

NAME OF STENOGRAPHER
Bahushruta Y. Jambhale
Name of the Judge ( With Court H.H.J. Shri. Purushottam
Room No.)
Jadhav (Court Room No.22)
Date
of
Pronouncement
JUDGMENT/ORDER
of 29/04/2022.

JUDGMENT/ORDER signed by
P.O. on
04/05/2022.

JUDGMENT/ORDER uploaded on
04/05/2022.

Addl. Sessions Judge
B.