IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No.3544 of 2008 (State of Maharashtra v. Ziyallullah Khan s/o Zakaullah Khan and others) Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Shri D.B. Patel, APP for Applicant. Shri Asif Rizwy, Advocate for Non-Applicants. Coram : R.C. Chavan, J. Dated : 22nd January, 2009 This is an application for cancellation of bail granted to three non-applicants along with three others by the learned Additional Sessions Judge, Yavatmal, by his order dated 7-7-2008. The six applicants before the learned Additional Sessions Judge were in fact absconding. Applications for anticipatory bail by two of them were not entertained. They surrendered before the learned Additional Sessions Judge and after hearing the learned APP, the learned Additional Sessions Judge admitted all the six to bail observing as under : “The deadly weapons like sword, knife, iron rod etc. were used to assault Javedkhan. But, perusal of the case papers reveal that no overt act or possession of weapon is alleged against these applicants. Rest of all the accused in the case are at large. Therefore, on principle of parity and for want of any alleged overt act on the part of applicants they be released on bail.” Now these observations indicate non- application of mind on the part of the learned Additional Sessions Judge to the material before him. There is a specific allegation that Ziaullakhan had cut the hand of Javedkha with a sword. Non-Applicant No.2 Nasarullah Khan had cut the right hand and Ziaullakhan had cut the left hand by sword. Now if this is not overt act attributed to the non-applicants, the learned Additional Sessions Judge should ask him as to what is the overt act. The order cannot at all be sustained insofar as it pertains to the two non-applicants. As far as Mubarak Khan is concerned, he was standing with an iron pipe. Therefore, order in respect of this accused need not be disturbed. The application is, therefore, partly allowed. The impugned order dated 7-7-2008, insofar as Ziyaullah Khan and Nasarullah Khan, is set aside. The bail granted to them is cancelled. The learned counsel for the non-applicants states that he would advise his clients to surrender to the police by tomorrow evening. Judge. pdl