1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.953 OF 2011 1. Colonial Mohan s/o Vishwanath Bhalsing, Age: 40 years, Occu: Service, r/o VRDE Arangaon Road, Ahmednagar, Present posting: Officer Incharge, Anti Terrorist Squad No.3, Batalian Chatisgarh Police, Amaleshwar Dist. Drug, (Chatisgarh) 2. Vishwanath s/o Bhausaheb Bhalsing, Age 69 years, Occu: Agril., R/o Walki, Tq. & Dist. Ahmednagar. ...APPLICANTS VERSUS The State of Maharashtra, Through the Officer In Charge of Police Station Tophkhana, Ahmednagar, Dist. Ahmednagar. ...RESPONDENT ... Mr.U.S.Malte, Adv., for the applicants. Mr.K.M.Suryawanshi, APP for State. Mr.Sandeep Deshmukh, Adv., to assist APP. ... CORAM: K.U.CHANDIWAL, J. DATE:21-3-2011 *** 2 PER COURT : 1. Heard. The accused/applicants seek pre-arrest bail in Crime No.87/2011, registered at Tophkhana Police Station for an offense under Sections 325, 452, 504, 506 read with Section 34 of IPC and Sections 3, 4(25) of the Arms Act. 2. On 8th March, 2011, Shri Deshmukh appeared for the complainant, sought intervention to assist learned A.P.P. by Application No. 953/2011, which was allowed. It was informed that the omission in the present application to refer Sections 325 and 452 of IPC is vital as same has been added subsequently informed to the learned Chief Judicial Magistrate on 2nd March, 2011. 3. As it is, in the application there is no reference to the two penal Sections 325 and 452 of IPC. 4. The present application is devoid of certified copy of the FIR for which office objection was raised. It was expected of the applicants to inform the Court, what made them to avoid furnishing such certified copy. There is no averment specifying for such concession. A typed copy of the FIR was tendered which indicated, the applicant no.2 was holding a NALA (a pipe), however, the true FIR illustrated, he 3 brandished sword to the complainant and his family members. This misrepresentation has changed the scenario and made this Court to entertain interim protection. Such practice of furnishing untrue and fractured details needs to be condemned. It even calls for action as it has amounted to interference in the administration of justice. I believed in the statement of the learned Counsel for the accused/applicant that a "pipe" (NALLA) was held by Applicant no.2 and not a sword. The mist could have been cleared had there been certified copy of the FIR. 5. Objection raised by the Counsel for the complainant of directly approaching to this Court in terms of Section 438 of Cr.P.C. has no basis as this Court has concurrent jurisdiction. There is no injunction not to approach this Court, however, discipline desired that first such application is to be made to the learned Sessions Judge. The applicant, apparently, could not dare to make such application before the learned Sessions Judge as there was a resolution taken by Bar Association, Ahmednagar, pursuant to a meeting held on 1st March, 2011, to desist to represent Applicants and news item being published subsequently. I do not see any mistake in the above scenario on the part of the applicants in approaching this Court. 4 6. The applicant no.1 is in service at highly placed position and sensitive too, as has been projected by Mr.Malte repeatedly. Likewise, complainant is also an Advocate, practicing at Nagar, his son is, as informed to be Secretary of the Bar Association. 7. Without pondering on the status of the parties, the primary matrix of the FIR illustrate that accused/applicant no.1, a responsible officer in Forces, barged at the residence of the in-laws with fire arm while his father ( applicant No.2) had a sword. They were with one anonymous person. In the threatening exercise and pushing to the complainant, abusing him, intervention of the wife of the complainant resulted in she suffering a fracture to her finger, referred by the investigator, making applicability of Section 325 of IPC. 8. At this stage of the matter, even if Mr.Malte submits that the Service Revolver was already remitted to the superior, the prima facie details, inform, the applicant with an associate barged to the residence of the complainant with lethal weapons with a intention either to eliminate or to teach him a lesson, to deter them from making allegations and also not to prosecute the cause of his daughter, wife of the 5 accused/applicant no.1. 9. Mr.Malte, during the course of submissions, placed reliance on the judgment in the matter of Siddharam Satlingappa Mhetre Vs. State of Maharashtra (2001) 1 SCC 694), particularly, paragraph nos. 108, 112 thereof. There cannot be a quarrel on the proposition and guidelines indicated by the Hon'ble Apex Court, highlighted hereinbelow, however, each case has its own facets, gravity which also need not be overlooked. Even if personal liberty is precious fundamental right and it should be curtailed only when it becomes necessary according to the peculiar facts and circumstances of the case. " 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 6 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 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." This is such a case where peculiar situation highlight that the accused wanted to have influence by his highly placed position, 7 terrorize the complainant over trivial issue of former's wife not keeping good relations with the applicant No.1. 10. Recovery of weapons is yet to be made. Name of associate is to be ascertained which would normally could be in fetters than under protective umbrella of this Court. Attendance by the accused/applicants before the Police Officer, by itself would not mitigate situation as the alleged weapons (fire arm) and sword are yet to be recovered by the investigator. Taking these aspects into consideration, interim protection granted to the accused/applicants calls for interference. It is, accordingly, terminated. The observations are, prima facie in nature. Application rejected. 11. Heard. Mr.Malte submits that applicants desire to approach the Hon'ble Apex Court, the interim protection with conditions dt.8th March, 2011, is extended till 5th April, 2011. (K.U.CHANDIWAL) JUDGE agp/953-11crapl