1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. CRIMINAL APPLICATION (ABA) NO. 19/2011 (Bablu @ Hemant Narayan Mohite .vs. State of Mah. through PSO PS Kotwali, Nagpur. ) ------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders. and Registrar's orders Mr. R.M. Patwardhan, Advocate for Applicant. Mr. D.P. Thakre, APP for Respondent. .......... CORAM : P.D. KODE, J. DATED : FEBRUARY 02, 2011 Heard. By the present application, the applicant apprehending an arrest in connection with Crime No. 169/2010 registered with Police Station Kotwali, Nagpur for commission of offence under Sections 143, 147, 148, 149, 307 of IPC read with Section 4 and 25 of the Arms Act , has prayed for a direction under Section 438 of Cr.P.C. The said crime was registered upon the FIR lodged by one Amit Durgesh Ankar regarding an incident which had occurred on 13.11.2010 at about 9.30 p.m. in front of White Horse Bar, Zenda Chowk, Nagpur. During the same one Raju Chendke, the applicant and another person of aged 25 years wearing yellow colour shirt were alleged to be involved. During 2 the incident the said third person has taken victim Abhishek who was then accompanying first informant, in the shop of Bapu Mahajan and thereafter said Raju and applicant had assaulted him with fist blows and thrown him in a lane by the side of the said shop. After Abshishek had fallen on the ground , applicant is alleged to have taken out sword and given a blow on the head of Abhishek. Thereafter three to four friends of applicant had been to the said spot and had commenced assaulting Abhishek by means of sword and knife. The first information reveals that thereafter when the first informant had been for rescuing Abhishek, he was caught by three persons and he had escaped from their clutches and called one Lacchu Faye. One of the persons had asked Lacchu Faye to be away when Lacchu Faye and first informant had been for rescuing Abhishek. It also reveals that Abhishek escaping and running away was chased by five persons. The frightened first informant thereafter had ran away and lodged the information upon which the crime was registered. The prayer for direction of similar nature made by the applicant before the Court of Sessions was negatived by the learned D.J. -7 for the reasons given in the order dated 11.1.2011. The learned counsel for the applicant by placing reliance upon the decision of Abdul Hamit Ansari and ors. .vs. State of Maharashtra reported in 2000 (4) Crimes 60 (SC) urged that on the basis of the ratio of the said decision, this Court upon application made by co-accused Laxmikant, vide order dated 3 15.12.2010 has directed him to surrender before investigating officer or the remand Court on three consecutive days i.e. on 20th, 21st and 22nd December, 2010 and directed the investigating officer to obtain appropriate remand order upon such a surrender and interrogate the applicant in custody for three days for collecting specimen signature, handwriting documents etc. By the same order, after expiry of period of three days the said co-accused was ordered to be released on bail with certain further directions. The learned counsel urged that on the principle of parity, similar order be passed. The said request is vehemently opposed by the learned APP on the count that the said order was passed after obtaining instructions from the investigating officer regarding the said applicant who was not the main accused and whose name was not appearing in FIR. The learned APP urged that the prosecution is opposing passing of such order as applicant is main assailant and there is material so far collected reveals that at the public place the applicant has given sword blow on the head of victim Abhishek. . The learned APP further urged that presence of the applicant is very much necessary for custodial interrogation as sword used by him in commission of the crime is yet to be recovered and clue for the same can be gathered only from such a custodial interrogation of the applicant. It is urged that hence the order as requested may not be passed because they would put unnecessary fetters upon the investigation and in the event of the investigating officer being unable to receive 4 clue regarding said weapon used in the crime, the said facet would remain unearthened and may ultimately adversely affect the investigation and the prosecution case. The perusal of the order shown and so also material in the diary supports the submission of the learned APP that the order pointed was passed regarding a co-accused not named in FIR , the same being passed upon the concession made by the prosecution and so also the material collected during investigation reveals the applicant being named in FIR promptly lodged within few hours. Having due regard to the same, it is difficult to perceive that case of the present applicant can be said to be par with the co- accused for which the order pointed was passed. Needless to add that the same was passed upon the concession made by the prosecution having regard to the case against the said applicant. In view of the same it is difficult to pass such an order on principle of parity for the present applicant and so also on the basis of the decision of the Apex Court relied in the said respect which upon perusal reveals being delivered in peculiar facts and circumstances of the case then before the Apex Court exercising powers for making complete justice. Having regard to the same and gravity of the crime under investigation committed at public place and the manner in which the incident had occurred, number of injuries sustained by the victim Abhishek on vital part and the allegations of the same being caused by using sharp edged instrument and the aspect upon which the investigation has remained to be effected due to 5 applicant being not available for custodial interrogation, it is difficult to accede with the prayer made in the application or in the oral submission. Hence the application stands rejected. In view of disposal of Criminal Application (ABA) No. 19/2011, Criminal Application (APPP) No. 57/2011 also stands disposed of. JUDGE halwai