IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CR.APPLN/4934/2010 ARJUN HAMU AADHE AND ORS V/S STATE OF MAHARASHTRA AND ORS ... Shri S.J.Salunke, Advocate for applicants and Shri N.B.Patil, APP for respondents. ... CORAM : K.U.CHANDIWAL,J. Dated : January 10, 2011 PER COURT : 1. Heard respective counsel extensively. 2. An exercise of power under Section 438 of the Code of Criminal Procedure is sought in a clash between two rival groups on an election issue. The first information report against the present accused / applicants is meticulously drafted, every role attributed to each of the accused / applicants is also demonstrated. Accused No.1 Arjun Hamu Aadhe and accused No.2 Suresh Kisan Aadhe are specifically informed with the criminal activities and assaults. So far accused / applicants Bharat Topa Aadhe, Shivaji Topa Aadhe, Satish Haribhau Aadhe, Sandeep Shamrao Aadhe and Satish Narayan Aadhe are concerned, the first information report discloses that they were possessing sticks while accused / applicant Sharad Baliram Aadhe had a stone. Role of accused / applicant Suresh Narayan Aadhe is with a iron bar. CR.APPLN/4934/2010 (2) 3. Learned counsel for the applicants submits that in a group clash, there is no specific role attributed to accused / applicant Nos.3 to 9 and they deserve exercise of powers under Section 438 of the Code of Criminal Procedure. To substantiate his contention, learned counsel has placed reliance on the judgment of the Constitution Bench of the Supreme Court in the matter of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and others [ 2010 ALL SCR 2725]. The Honourable Apex Court while dealing with the area of entertaining the application and it's limits has also categorised the factors and parameters for taking into consideration while dealing with the application for anticipatory bail and more explicitly projected the same in paragraph No.122 thereof, which reads as under :- "122. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; iii. The possibility of the applicant to flee from justice; iv. The possibility of the accused's likelihood to repeat similar or the other offences. v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; CR.APPLN/4934/2010 (3) viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be 64 caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. " 4. Applying above parameters and reading the first information report, role of present applicants / accused Nos.1 and 2 Arjun Hamu Aadhe Suresh Kisan Aadhe is more than clear and further that accused No.9 Suresh Narayan Aadhe had iron bar with him. 5. Taking into consideration these aspects, pre-arrest bail to the extent of applicants / accused No.1 Arjun Hamu Aadhe, accused No.2 Suresh Kisan Aadhe, accused No.9 Suresh Narayan Aadhe is rejected. However, the application is allowed to the extent of applicants / accused No.3 Bharat Topa Aadhe, accused No.4 Shivaji Topa Aadhe, accused No.5 Satish Haribhau Aadhe, accused No.6 Sharad Baliram Aadhe, accused No.7 Sandeep Shamrao Aadhe and accused No.8 Satish Narayan Aadhe. In the event of their arrest in Crime No.128/2010 registered with Police Station Partur, District Jalna they be released on their furnishing PR bond of Rs. 15,000/- (Rs.Fifteen Thousand only/-) with one surety of like amount each. They shall attend the Investigator on every Sunday between 6 to 8 p.m. upto 28th February 2011. CR.APPLN/4934/2010 (4) 6. The application is partly allowed to the aforesaid extent. (K.U.CHANDIWAL, J.) ... akl