1
Cri. BA No.872-2024
MHCC020056332024
IN THE COURT OF CITY CIVIL AND SESSIONS AT GRATER BOMBAY
Court Room No.23
(Presided over by Shri N. P. Tribhuwan, Additional Sessions Judge)
CRIMINAL BAIL APPLICATION NO.872 OF 2024
Applicant :
Mr. Sarvar Akbar Khan
Aged : 40 years, Occ : Juice seller
Presently R/o : Bel Medical Galli, Opposite
Public toilet, Bangali Pura, Antophill, Wadala
(East), Mumbai-37.
Permanent Add: Village-Angathara, Thana,
Vajirgang, Tahsil- Basauli, Dist: Budaun, Uttar
Pradesh- 243 723.
VERSUS
Respondent :
The State of Maharashtra,
Through Pydhonie Police Station
Mr. A.R.Pande, learned Advocate for Accused.
Mrs. Ranjana Budhwant, learned APP for the State.
ORDER
(Delivered on 06/04/2024)
This is first application under Section 439 of Cr.P.C. for
releasing accused Mr. Sarvar Akbar Khan on bail in Crime No.472/2023
for the offences punishable under Section 394, 398, 120(B), 397, 34 of
Indian Penal Code and Sec.37/135 of Maharashtra Police Act, registered
with Pydhonie Police Station, Mumbai.

2
2.

Cri. BA No.872-2024
Heard learned Counsel for accused and learned APP for the
State. Perused Bail Application, say/reply, charge-sheet and other
documents.
3.

It is case of prosecution that on 22.12.2023, informant
Smt. Shilpa Sapan Manna has given report/complaint. She alleged that
her husband is running factory of making Gold Ornaments at Room
No.4, Building No.16, 4th floor, Kazi Sayyad Street, Masjid Bandar
Mumbai. They employed eight Artisans in the said factory. On
22.12.2023 at about 7.15 p.m., employer viz. Sameer Ghosh has
informed her on phone call that four persons have stabbed knife in
stomach of her husband and he is going to admit him in the hospital.
Thereafter, informant reached in the J.J. Hospital. Her husband was in
ICU Ward. Employer Sameer Ghosh was present there. Informant
inquired with Sameer Ghosh about the incident.
4.

Sameer Ghosh has told the informant that at about 6.45
p.m. employer Sapan Manna (husband of informant) was going towards
Masjid Bandar Railway Station from Y. M. Road, Bhat Bazar Junction,
Narsinath Street. At that time, in front of Hasmukh Rai Tea Stall,
suddenly three unknown persons came from backside. Out of them, one
person aged 35-40 years having white colour full sleeves shirt and jeans
pant has caught employer/Sapan Manna. Another person having
chocolate colour full sleeves shirt and blue colour jeans pant has
stabbed sharp weapon in the stomach and on hands of employer. They
inflicted the injury to the employer for robbery of the cash of employer.
The hawkers gathered to rescue the employer/Sapan. The said hawkers
have taken the injured/Sapan to his factory. At that time, employer
Sapan has informed about the incident to him/Sameer Ghosh.

3
5.

Cri. BA No.872-2024
Learned counsel of accused argued that applicant/accused
is arrested only on the basis of costume description given in the
complaint/report. Applicant/accused is not in the CCTV footage. He is
falsely involved in this case. Sections 394 and 398 of Indian Penal Code
are not attracted to the accused in this case. Accused is in jail from
24.12.2023. Now the investigation is completed and prosecution has
filed charge-sheet on 19.03.2024 before learned trial court and it is
registered bearing Criminal case No.433/PW/2024. Yet learned
Magistrate has not committed the case to the Sessions Court. The
charge-sheet does not show that present applicant had any knowledge
of alleged crime and hence, Section 120B of Indian Penal Code cannot
be attracted to the present applicant. Charge-sheet is against present
applicant/accused is only on the basis of statement given by accused
Asif before the police. The confession statement before the police is not
admissible in the evidence u/Sec.25 of the Evidence Act. There is no
statement of eye witness to show the participation of present applicant
in commission of the crime. Prosecution relied on the said CDR but the
said record has not been filed by the prosecution.
6.

Learned APP has argued that due to the injuries sustained
in the said incident, the injured Sapan Manna was indoor patient in ICU
from day one. He has undergone stomach operation. He has sustained
grievous injuries on the vital part of the body. Accused Irshad
Ahsanullah Khan arrested from the spot of incident at the time of
incident. Name of the present applicant/accused disclosed by the
accused Asif Ahasanullah Khan. During investigation, it revealed that
injured Sapan and accused Harimohan are making gold ornaments and
they are having the factory in the same building. As the accused
Harimohan used to take the gold ornaments from injured Sapan, he was
4
Cri. BA No.872-2024
knowing about the stock of gold and cash available with the injured.
Before and after the incident, accused Irshad has made phone call to the
accused Harimohan. As per the disclosure statement of accused Asif the
prosecution has recovered weapon knife u/Sec.27 of the Evidence Act.
Though, applicant does not appear in CCTV footage, he played active
role. Therefore, Section 120B of IPC attracts to the applicant. Yet
another accused remained to be arrested. The identification parade of
accused Irshad remained to be carried out. If accused is released on
bail, he will pressurize prosecution witnesses.
7.

Considering rival submission of the parties, prima-facie it
seems that Section 394 and 398 of IPC attracted in this case. Section
394 of IPC says that if any person, in committing or attempting to
commit robbery, voluntarily causes hurt, such persons and any other
person jointly concerned in committing or attempting to commit such
robbery shall be punished with imprisonment for life or RI for a term
which may extend to ten years and fine. As per Section 398 of IPC if at
the time of attempting to commit robbery or dacoity, the offender is
armed with any deadly weapon, the imprisonment with which such
offender shall be punished shall not be less than seven years.
8.

Taking into consideration the rival submission of the
parties, the only evidence against present applicant is disclosure
statement of co-accused before the police. Confession statement before
police is not admissible in the evidence u/Sec.25 of the Evidence Act.
Prosecution relied on the CDR but has not filed the alleged CDR record.
Accused is in jail from 25.12.2023. It seems that there is no prima-facie
nexus of present applicant in the commission of offence. There is no
criminal antecedents of the accused. The prosecution has filed charge-
5
Cri. BA No.872-2024
sheet. Accused Harimohan Samanta released on bail as per order dated
1.4.2024
passed
by
this
court
in
Criminal
B.A.No.820/2024.

Considering the nature of offence, allegations and in view of above
facts, it is desirable to release accused on bail. Hence, I pass following
order.
ORDER
1.
Criminal Bail Application No.872 of 2024 is allowed as
under.
2. Applicant/accused Mr. Sarvar Akbar Khan be released on bail
in Crime No.472/2023 for the offences punishable under Section
394, 398, 120(B), 397, 34 of Indian Penal Code and Sec.37/135
of Maharashtra Police Act, registered with Pydhonie Police
Station, Mumbai ; subject to conditions :
i) Applicant shall execute a Personal Bond for a sum of
Rs.30,000/- with one or more sureties in the like amount.
ii) Applicant shall not tamper with any of the prosecution
witnesses, directly or indirectly.
iii) Applicant shall co-operate with the investigation and make
himself available for interrogation whenever required.
iv) Applicant shall remain present at the concerned Police Station
on every Monday between 10.00 a.m. to 1.00 p.m. for a period of
three months.
v) Applicant shall not misuse his liberty.
vi) Applicant shall furnish his detail address and mobile number
to the investigation officer and the concerned court. In case
applicant change his residence/address and mobile number, he
shall furnish the same to the I.O and concerned court.

6
Cri. BA No.872-2024
3. Bail before learned trial court.
4. Inform to the learned trial court.

Date : 06.04.2024.

NITIN
PUNJAJI
TRIBHUVAN
Digitally signed
by NITIN
PUNJAJI
TRIBHUVAN
Date:
2024.04.08
17:40:13 +0530
(N.P. Tribhuwan)
Additional Sessions Judge,
CR.No.23, Gr. Mumbai.
Direct dictated on : 06.04.2024
Checked on
: 06.04.2024
Signed on
: 06.04.2024
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
08.04.2024 at 5.38 p.m.
UPLOAD DATE AND TIME
Mrs. P. K. More
NAME OF STENOGRAPHER
Name of the Judge (with CR No.) HHJ SHRI. N. P. TRIBHUVAN
(C.R.No.23)
Date of announcement of Order
06.04.2024
Order signed by P.O. on
06.04.2024
Order uploaded on
08.04.2024