1 BA636.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION (BA) NO. 636 of 2011 SK. SABIR S/O SK. SHABBIR ..VERSUS.. STATE OF MAHARASHTRA, THROUGH P.S.O., P.S., AKOT FAIL, AKOT, DIST. AKOLA. Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. R. M. Daga, Advocate for the applicant. Mr. R. S. Nayak, A.P.P. for the respondent /State. CORAM : PRASANNA B. VARALE, J. DATED : 09 th DECEMBER, 2011. By the present application under Section 439 of the Code of Criminal Procedure, the applicant is seeking his enlargement on bail in Crime No. 33/2010, registered at Police Station, Akot Fail, Akot for the offence punishable under Section 147, 148. 307, 302, 109, 120-B r/w Section 149 of I.P.C. and under Section 3,4 r/w Section 25 of Arms Act and Section 135 of Bombay Police Act. At the very outset, it is fairly submitted by Mr. R.M. Daga, the learned counsel for the applicant that this is second attempt of the applicant seeking his enlargement on bail before this Court. Mr. Daga, the learned counsel submits that the First Information Report lodged by Wahida Khatun Jamir Khan giving 2 BA636.11 details of the assault on Nazir and one Nisar Khan, refers to three incidents of assault dated 10.04.2010. Mr.Daga, the learned counsel for the applicant further submits that in the incident took place in the morning at 8.00 a.m. and the subsequent incident, neither the name of the applicant has been mentioned nor any role is attributed to the applicant. The role attributed to the applicant is in the incident, which took place at a later point of time on 10.04.2010, wherein one Nisar was subjected to assault. Mr. Daga, the learned counsel further submits that though it is alleged that the applicant along with the other accused, who were armed with weapons namely Sword, Iron rods, made an assault on Nisar, in the statement of Nisar, no specific role is attributed to the applicant. A general statement is made that all the assailants, who were armed with weapons, made an assault on Nisar with the weapons. Mr.Daga further submits that the investigating agency has completed its investigation resulting in filing of the final report and neither any incriminating material is to be recovered at the instance of the applicant nor any investigation is required to be carried out further. The learned counsel further submits that the applicant is behind the bars from 01.05.2010 and as the investigation is over, the applicant is entitled to be released on bail. 3 BA636.11 Apart from these facts, the learned counsel for the applicant further submits that the applicant is claiming his enlargement on the ground of parity also. Mr. Daga, by inviting my attention to the order passed by this Court (Coarm : U. V. Bakre, J.), dated 04.10.2011 in Criminal Application (BA) No. 502/2011, submitted that the applicant therein i.e. Mohd. Altaf Mohd. Majhar is the co-accused and the role attributed to Mohd. Altaf is of a similar nature as attributed to the present applicant and it can be said that the case of the present applicant is similarly circumstanced. The learned counsel for the applicant further submits that on considering the material, this Court by order dated 04.102011 had allowed the application of the applicant Mohd. Altaf and as such the same benefit be awarded to the present applicant. Per contra, Mr. Nayak, the learned Additional Public Prosecutor has strongly opposed the prayer of the applicant on the ground that this court, by earlier order dtd.16.11.2010, had rejected the application of the present applicant and as there is no changed circumstances, the learned APP has prayed for rejection of the application. Heard the learned counsel for the respective parties at length. Perused the material. It is not in dispute that though the earlier application of the applicant had been rejected by this 4 BA636.11 Court by order dated 16.11.2010, this Court by the order dated 04.10.2010 allowed the application of the co-accused – Mohd. Altaf. It is also not in dispute that the material against Mohd. Altaf is of the similar nature as against the present applicant. Though, there are statements of witnesses Razia Bee and Shayesta Khatun, those are referring to the presence of the applicant and a general statement that applicant was armed with the weapon, participated in the assault on Nasir. It is also not in dispute that the investigation is complete and the charge- sheet is already filed by the investigating agency and the applicant is in the police custody for more than 16 months. There is considerable merit in the submissions of the learned counsel for the applicant that as the nature of allegation and the material against the present applicant, is similar to the material against the co-accused Mohd. Altaf, whose application has been allowed by this Court, the present applicant is entitled to claim parity with Mohd. Altaf. The material also shows that the prelude to the incident, where Nazir was subjected to assault i.e. earlier two incidents, the informant Wahida Khatun did not mention or figure the applicant in those two incidents and a general statement was made about the presence and participation of the applicant. It is also revealed from the record that though the investigating agency has recovered a 5 BA636.11 ‘iron pipe’ at the instance of the applicant, the C.A.report shows that no blood was detected on the iron pipe. Taking overall view of the material and in view of the fact that the Criminal Application No. 502/2011 of the co- accused has been allowed by this Court, I am of the opinion that the applicant has made out a case for his enlargement on bail. In the result, the criminal application is allowed. The applicant – Shaikh Sabir Sk. Shabbir shall be released on bail in Crime No. 33/2010 of Akot Fail Police Station upon execution of personal recognition bond in the sum of Rs. 30,000/- (Rupees Thirty thousand only) with one solvent surety in the like amount under the condition that the applicant shall not tamper with the prosecution witnesses and shall not try to contact the said witnesses in any manner. The applicant to attend Police Station, Akot Fail, Akot on every 2 nd and 4 th Sunday of the month from 9.00 to 11.00 a.m. for the period of three months from the date of the order. Needless to say that the State is at liberty to approach this Court in case non-observance of the conditions by the applicant. JUDGE Diwale