1 CRI.APPLN. NO.5167/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.5167/2010 Aziz Khan s/o Gani Khan Age: 55 Yrs., occu. Business, r/o Aurangabad Times Colony, Aurangabad. - APPLICANT VERSUS The State of Maharashtra Through the Police Station Officer, Jinsi Police Station, Aurangabad. - RESPONDENTS ***** Mr.VM Kagne Advocate for Applicant; Mr.KM Suryawanshi,APP for State. Mr.PB Wagh, Adv. for Orig. Complainant. ----- CORAM : K.U.CHANDIWAL, J. DATE : 14th January, 2011. PER COURT : 1) Heard learned Counsel for the respective parties extensively. Learned Counsel for applicant/accused informs that the applicant- accused – Aziz Khan s/o Gani Khan is present in the court hall. 2) By this Criminal Application, exercise of powers in terms of Section 438 Cr.P.C. in crime No.I-111/2010 of Jinsi Police Station, 2 CRI.APPLN. NO.5167/2010 Aurangabad, for offences under sections 302, 143, 147, 148, 149, 341, 323, 504, 506 of IPC and Section 135 of Bombay Police Act, is sought. 3) On 16.9.2010 Salim Khan and Maqsud Khan were proceeding on a motorcycle, no sooner they reached near the house of Azara Jabin, they were intercepted, the vehicle was stopped. The accused -Azizkhan abused them. He inflicted a knife blow to Maqsudkhan. In the atrocious act, present accused/applicant with other associate, started beating the complainant – Salimkhan and also the deceased Maqsudkhan. The blow on head by knife and the fists and kicks, had its impact on said Maqsudkhan to succumb and breath his last. The nature of injuries by user of the deadly weapons and by fists and kick blows is corresponding to the post mortem notes. 4) The learned Counsel for the accused/applicant submits, that the accused was corporator of Aurangabad Municipal Corporation for two times. At the relevant time, he was at Manmad, he is enjoying the interim protection by virtue of orders of this Court dated 14th December, 2010, charge sheet is filed, the allegations are of fists blows, consequently, the accused deserves bail by exercising powers. The counsel further submits, the applicant has been 3 CRI.APPLN. NO.5167/2010 roped in due to political rivalry, there is no recovery to be made and, therefore, custodial interrogation of the accused/applicant is not warranted. 5) The learned APP and learned Counsel for the original complainant, both, attacked seeking to exercise of powers in terms of Section 438 of Cr.P.C. by the accused/applicant. It is informed, in brutal manner and in concert, precious life of Maqsudkhan was taken by none else than son of the accused no.1, wherein the accused/applicant – Azizkhan instigated his associate, knife blow was inflicted and the applicant/accused is also alleged to have inflicted fists and kicks blow upon the complainant – Salimkhan and the deceased Maqsudkhan. 6) Having gone through the statements, as disclosed by Sale Ali Bin Havel, the witness to the events, rather eye-witness, in the narration of Salim, the complainant, in the narration of Mahammad s/o Mahemood, explicit and dominant role of the present accused/applicant is projected. At the stage of application of pre-arrest bail, roving inquiry is not contemplated as to worth of statements. This court is not expected to dissect the testimony as to its truthfulness and also to 4 CRI.APPLN. NO.5167/2010 brand that the witnesses are liar. This Court has to even ensure that the nature and gravity of the offences and its impact at the democratic fabric of the society is not fractured. The allegations of political rivalry are far from acceptance. Plea of Alibi, would be at trial as defence and need not be while activating reliefs under Section 438 Cr.P.C. 7) The Honourable Apex Court in the matter of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and others [2010 ALL SCR 2725]. while dealing with the area of entertaining the application and it's limits has also categorized the factors and parameters for taking into consideration while dealing with the application for anticipatory bail and more explicitly informed the same in paragraph No.122, 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 5 CRI.APPLN. NO.5167/2010 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; 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; 6 CRI.APPLN. NO.5167/2010 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. " 8) Applying the test of above principles enunciated by the Apex Court, it is vivid that the grant of anticipatory bail, where it will be involving much magnitude, affecting a large number of people and the society as a whole would be a fallacious exercise. It is not that there was any delusion on the accused/applicant at the material time. The nature of threats primarily exerted on the witnesses and the complainant Salimkhan projects the mindset of the accused. 9) The learned Counsel for the complainant submits that enjoying the interim protection, the accused/applicant has threatened the witnesses and the weapon, i.e. knife used in commission of offence, is yet to be recovered. 10) Taking survey of the facts, no case to exercise powers under Section 438 of Cr.P.C., the application is rejected. 7 CRI.APPLN. NO.5167/2010 11) Heard Mr.Kagne, learned APP and Mr. Waghmare. By Wedding Invitation, my attention is drawn that the accused/applicant – Azizkhan has to celebrate marriage of his close relations, wherein he is incharge, scheduled on 20th January, 2011 and 22nd January, 2011 at Aurangabad and Malegaon. The learned Counsel for applicant/accused submits that time to surrender be extended for two weeks. 12) Though, the complainant has alleged threats to the witnesses, however, the ceremonies in the family of the accused/applicant and he having enjoyed interim protection also needs consideration. In the situation, the accused/applicant is extended time to surrender up to 23rd January, 2011. During the intervening period, the accused/applicant shall attend Jinsi Police Station daily between 4.00 p.m. to 6.00 p.m. without fail up to 21st January, 2011, except on 22nd January, 2011, since the marriage is scheduled at Malegaon. ( K.U.CHANDIWAL ) JUDGE bdv/