CNR No.
MHCC020036942022
IN THE COURT OF SESSION FOR GR. BOMBAY AT MUMBAI
BAIL APPLICATION NO.645 OF 2022
Shahnawaz Shahid Qureshi
Age : 27 year, Occp : Service,
R/o : Building No.31, Room No.1,
Transit Camp, PMGP BKC,
Bharat Nagar, Mumbai51.
…
Applicant
…
Respondent
Versus
State of Maharashtra
(At the instance of Police Station,
BKC,
C.R.No.164/2021)
Appearance:
Mr. Tanvir Nizam, Ld. Adv. for applicant.
Mrs. Rashmi Tendulkar, Ld. Addl. P.P.
CORAM :
DATE :
HIS HONOUR ADDL.SESSIONS
JUDGE M. G. DESHPANDE
(C.R.No.16)
March 29, 2022
ORDER
1.
Applicant Shahnawaz Shahid Qureshi is accused No.1 in
C.R.No.164/2021 registered with BKC Police Station under Ss.307, 326,
323, 504, 34, 188, 269 34 of IPC and under Sec.37 r.w Sec.135 of
Maharashtra Police Act. He is praying for bail on main ground that,
chargesheet has been filed and he is ready to abide conditions.
2.
Prosecution strongly opposed the application vide their say
(Exh.2) and contended to reject the application. It is their contention
that, accused No.1 is the main accused and there is strong evidence
against him. That, the offence alleged against him relates to counter
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BA No.645/2022
crime No.165/2021 registered under Ss.326, 323, 504, 34 IPC if
accused No.1 is released on bail there is every possibility that he is
pressurize the informant and prosecution witnesses in the crime. It is
further contended that the accused No.1 was absconding for 10 months
and there is possibility that, he will abscond if released on bail. With
this, it is contended to reject the application.
3.
Heard Ld. Adv. Mr. Tanvir Nizam for the applicant and
Ld. A.P.P Mrs. Rashmi Tendulkar at length. Following points arise for
my determination. I am recording following findings thereon for the
reasons discussed below :
POINTS
FINDINGS
1.
Whether the applicantaccused has made
out a strong primafacie case to release him
on bail ?
No
2.
What Order ?
Application stands
rejected.
REASONS
POINT NO.1.
FACTS INVOLVED IN C.R.No.164 OF 2021.
4.
On 02.05.2021 Rehan Kasim Shaikh lodged FIR alleging
that, in the night around 2.00 hours his cousin Amin Sayyed alongwith
some boys had gone for playing cricket near water tank, near Tata
Colony.
There was quarrel between him and Shahnawaz Qureshi,
resident of opposite building and scuffle took place. However, the boys
pacified the same. Thereafter, Shahnawaz did not go his home and
continued playing. When the informant reached there, Shahnawaz told
him about the quarrel between him and Amin.
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BA No.645/2022
5.
It was month of Ramzan, therefore, informant woke up in
the morning 3.00 O’clock and went to his aunt Jamila Sayyed at
Navjivan Society for ‘Saheri’. He then gave called to his cousin Amin
Sayyed when he was under the building and asked him to come for
‘Saheri’. But he was playing cricket in Tata Colony, hence became late.
Therefore, at 4.15 a.m. informant walked towards the building where
Amin resides. On the way as such, he heard shouting. Therefore, he
came down and saw scuffle between Amin Sayyed, applicant, his
brother Faizan Qureshi and Salman Qureshi. Faizan gave slap below
ear of Amin saying “D;k js esjs HkkbZ ds lkFk >xMk djds mls ekjrk gS d;k] eS rqedks
fl[kkrk gqWa”. Salman gave fist and kick blows to Amin. Informant and
Adnan rescued the scuffle. At that time family of Shahnawaz had come
down from the building. Faizan was apprehended by his mother, but he
was trying to beat Amin. Amin and Informant were talking inside the
building alongwith their family. At 04.30 a.m. suddenly Shahnawaz
took away sharp article from the hand of Faizan and jumped over the
motorcycle in his way and further abused Amin and then stabbed on the
bottom portion of the throat and further stabbed three times on the left
side portion under left armpit. Manan Shaikh, Tabrez bahi, Irshad bhai
and others who are residents of adjacent building took away Amin.
There was bleeding from the throat of Amin. Arbaz, Amin’s friend, took
Amin to Bhabha Hospital, Bandra (W) on his motorcycle from where he
was taken to Sion Hospital. When Amin was admitted in the hospital
informant came to the police station and lodged the FIR of the incident.
These are the facts.
6.
GROUNDS FOR BAIL.
a)
CCTV footage dt.02.05.2021 does not indicate any incident
of stabbing. On the contrary Faizan was alone and actually
BA No.645/2022
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assaulted by Adnan, Rehan, Amin and three other persons.
b) Applicant Shahnawaz was trying to sort out the issue and
Amin is seen running away and returning in attack mode
with sizable stone to attack.
c)
Mother of Amin Mrs. Jamila Sayyed is seen leading a crowd
of 1012 persons towards applicant and scuffle is visible.
d) Injured victim has not fallen or collapsed nor is he bleeding
due to grievous injury as alleged in the FIR No.164/2021
nor is carried away by people. Applicant never stabbed him
on the throat or abdomen area. There is no mensrea.
e)
In CCTV camera No.3 it is seen that, after the altercation
Amin Sayyed is seen carrying a stone and charging towards
the applicant indicating that he is the initial aggressor.
f)
In the FIR No.165/2021 this material is in favour of the
applicant. Whatever happened is for self defence of the
applicant.
g)
Law of self defence and four propositions thereof as well as
leading features of right of private defence are described as
grounds for bail application.
h) Sections 97, 98, 99, 100 to 105 are referred alongwith the
differences between English law and Indian law and further
referred that, the law Commissioners who, under the
Presidentiship of Lord Maculay prepared the original draft
of Penal Code did not claim in their report relating to
Sections 96 to 106 that were bashing their draft upon
principles of the common law relating to right of self
defence. Indeed they stated that, they have drafted those
provisions in the light of what was needed in the conditions
prevailing in this countryIndia.
i)
Doctors have given false opinion which is not plausible as
size of injury cannot be increased subsequently as opined by
them.
j)
Various sections under Indian Penal Code are referred and
it is contended that, the applicant is entitled to bail.
I carefully examined this 50 pages bail application.
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BA No.645/2022
7.
It is vehement argument of Ld. Adv. for the applicant that
this FIR is false when there is another FIR No.165/2021 which indicates
how the incident quoted in this FIR No.164/2021 is false. I carefully
examined argument of Ld. Adv. for accused in two long sessions.
8.
It has to be noted that, recently chargesheet has been filed
but law is settled that mere filing of chargesheet cannot be a change in
circumstance.
It is material to note that, the present applicant was
absconding for about 10 months. Therefore, the investigation could not
be done properly to recover the weapon.
Medical paper i.e injury
certificate dt.05.06.2021 indicates two injuries, which are simple.
Weapon used while committing offence was sharp and accused was
absconding, therefore investigation could not be made for recovery of
weapon.
Two anticipatory bail applications of the applicant were
rejected. First application was rejected. Thereafter, he filed another
anticipatory bail application which was rejected holding that the same is
not maintainable, as previous application was rejected. As the applicant
was not available for investigation and the injuries were simple but with
sharp weapon, Investigating Officer sought second opinion from the
doctors treating injured Amin. The said opinion and findings are as
follows,
➢
Injury present over left side of neck is inflicted by sharp
cutting weapon, which is invariably a dangerous weapon
under Sec. 324,326 IPC.
➢
Dimensions of incised injury is apparently bigger and is
present over vital structures of the neck (Carotid,
Jugular vein etc.).
➢
Direction of infliction of injury is from anterior side of
neck towards posterior side of neck by a sharp weapon.
BA No.645/2022
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Conclusion
Said injury present over left side of neck dangerous and
can be considered as grievous in nature.”
It is therefore clear that the description of injury present
over left side of neck was initially referred as simple, but the doctors
opined the same as dangerous and can be considered as grievous in
nature. It is argument of Ld. Adv. Mr. Tanvir Nizam that, this second
opinion is false and obtained to make this application difficult and the
description of injuries mentioned in injury report dt.05.06.2021 is true
which indicates only simple injuries. Ld. Adv. Mr. Tanvir Nizam further
vehemently argued that, opinion given by Dr. Kukde is false and not
supported by facts. I carefully examined this aspect.
9.
We are not at the stage of appreciation of evidence under
Sec.3 of Indian Evidence Act when the trial is over.
It is very
preliminary stage when the bail application is to be examined on the
basis of facts available in the chargesheet. Ld. Adv. Mr. Tanvir Nizam
further filed copies of photographs describing the incident at its bottom,
allegedly captured from CCTV cameras near the spot of incident. On
the basis thereof he submitted that applicant was never aggressive, but
making out his private defence.
Present FIR is false and FIR
No.165/2021 is true. I strongly feel that even this is not a stage to
examine this aspect and appreciate evidentiary value of the illegible
photographs filed with this bail application. Right of Private Defence,
who was aggressive and who was defending the attack, are also aspects
which require to be dealt with at the trial on the basis of evidence. Even
the contention about draftsman of IPC, difference in English Law and
Indian Law on the point of private defence cannot be a subject matter of
the bail application under Sec.439 Cr.P.C.
Therefore, all such
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BA No.645/2022
arguments are not relevant at this stage within the limited compass of
inquiry under Sec.439 Cr.P.C. Even injury is immaterial under Sec.307
IPC when the Court has to examine whether act done by the applicant
with such intention or knowledge and under such circumstances that, if
he by that act caused death, he would be guilty of murder ?
10.
It is material to note that, weapon could not be recovered
as applicant himself was absconding for 10 months. The statements of
prosecution witnesses clearly indicate that, the applicant used sharp
weapon for stabbing the victim Amin on his neck and portion under the
left armpit. He gave three successive blows as such, which primafacie
indicate that intention of the applicant coupled with knowledge of
consequences of his act as such.
This is only material aspect for
determining the eligibility of the applicant under Sec.439 Cr.P.C. for an
offence under Sec.307 IPC.
11.
Doctor has clearly opined that dimensions of insize injury is
apparently bigger and is present over vital structures of the neck
(Carotid, Jugular vein etc.). So it is clear that, the injury on neck is on
the vital part of the body. Therefore, primafacie there is a case of
offence under Sec.307 IPC.
The contention of Ld. Adv. Mr. Tanvir
Nizam that, opinion of doctor is false and size of injury cannot be
increased subsequently, is not acceptable at this juncture. However the
size of injury on the vital part i.e. throat, initially recorded as simple
injury itself indicates that it is clear case of Sec.307 IPC.
12.
Conduct of the applicant plays material role. Admittedly,
he was absconding for about 10 months after the incident.
He
surrendered himself being last resort only when his two anticipatory
BA No.645/2022
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bail applications were rejected.
There is every possibility that, the
applicant will abscond if released on bail by frustrating the very object
of criminal trial. It cannot be ignored that, because of his abscondance
for a long time of 10 months, prosecution could not recover weapon of
offence. Certainly if released on bail, he will indulge in every activity to
vanish the evidence of prosecution making their case difficult. I am of
the opinion that this is not a fit case to grant bail.
13.
Ld. Adv. Mr. Tanvir Nizam placed his reliance on Bhorya
And Ors. vs. State of Rajasthan, [RLW 2005 (3) Raj 2147]. He
further placed his reliance on Darshan Singh Vs. State of Punjab and
Anr, (2010)2 SCC 333, wherein foundation, principle and scope of
right of private defence is laid down by the Hon’ble Supreme Court.
Facts involved in both these authorities are that, the trial of the accused
was over. Here in the present case we are at the stage of Sec.439
Cr.P.C. Case is yet to be committed, trial is yet to begin and conclude.
14.
Ld. Adv. Mr. Tanvir Nizam further placed his reliance on
Subair Vs. Union of India, (2018 SCC OnLine Mad 3178), wherein
the Hon’ble Madras High Court in paragraph No.83 held as, “In the case
on hand, on the date of filing the bail petition, the period of 180 days as
contemplated under the UAP Act had not come to an end, which is
accepted by both sides. The contention that charge sheet has been filed
on 7.4.18 cannot be accepted as there is evidence to show that charge
sheet is filed only on 18.5.18. Therefore, on completion of extended
period upto 180 days, which falls after 9.4.2018, there being no charge
sheet/final report as contemplated u/s 173(2) of the Act and, therefore,
the accused is entitled for statutory bail”. Facts involved in this case are
referred in paragraph No.3 of this authority as, “It is the case of the
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BA No.645/2022
petitioner that on the alleged confession of one of the accused, the
petitioner was implicated and he was arrested on 11.10.2017 and
remanded to judicial custody. It is the specific case of the petitioner
that his arrest is a stagemanaged one and that the recovery said to
have been made is a highly fabricated one, which does not shown any
connection to the petitioner. In this case the facts are neither similar to
the facts cited supra nor there is any issue in respect of default bail.
Therefore, the ratio of this authority is not applicable to the present
case.
15.
Ld. Adv. Mr. Tanvir Nizam placed his reliance on Ashish
Pateliya Vs. State of Chhattisgarh (M.Cr.Case No.2514 of 2022 (B),
decided on 05.12.2002),
wherein the Hon’ble Chhattisgarh High
Court held as, “In the present case, it is not disputed that one person
was injured in Crime No.631/2002 and two persons are injured in
Crime No.630/2002. Two persons have already been released on bail
in the counter case No.631/2002. In the circumstances the petitioner
who is accused in Crime No.630/2002 is also entitled for similar relief”.
In the present case, offence alleged against the accused is under
Sec.307 IPC and is conduct of absconding for 10 months plays an
important role. Therefore, facts in this authority are not the facts of the
present case.
16.
Ld. Adv. Mr. Tanvir Nizam further placed his reliance on
Bashishth Singh and another Vs. State of Bihar, (2002)10 SCC 384,
wherein the Hon’ble Supreme Court held as, “Case against appellants
based on FIR lodged by the complainant whereas countercase based on
FIR lodged by the second appellant. Though both the cases investigated
but final report laid only in one case. On facts, held, appellants must be
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BA No.645/2022
released on bail on each of them executing a bond in a sum of
Rs.25,000 with solvent sureties”. These are not the facts of present
case.
I have noted above, the conduct of the accused who was
absconding for 10 months and also made the discovery of weapon
impossible. Therefore, he is not entitled to bail.
17.
In the background of above discussion, I am of the opinion
that, applicant has failed to establish strong primafacie case. If he is
released on bail, there is every possibility that he will abscond and
pressurize the informant and prosecution witnesses by ultimately
frustrating the object of the criminal trial.
Hence, Point No.1 is
answered in the negative and following order is passed :
ORDER
Bail Application No.645 of 2022 stands rejected.
MADHAV
GOPAL
DESHPANDE
Dt.: 29.03.2022
Signed on
Digitally signed
by MADHAV
GOPAL
DESHPANDE
Date: 2022.03.29
17:37:38 +0530
( M.G. Deshpande )
Addl. Sessions Judge.
C.R.No.16, Gr.Bombay at Mumbai
: 29.03.2022
BA No.645/2022
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