1 12.apln2855&3389-09 IN THE HIGH COURT OF JUDICATURE AT MUMBAI CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2855 OF 2009 Mr.Khalid Yunus Patel. ..Applicant. Versus 1. Mr.Aslam Abdul Rahim Patel, 2. Mr.Mushtaq Abdul Rahim Patel, 3. Mr.Mansoor Abdul Rahim Patel, & 4. The State of Maharashtra. ..Respondents. WITH CRIMINAL APPLICATION NO.3389 OF 2009 The State of Maharashtra. ..Applicant. Vs. 1. Aslam Abdul Rahim Patel, 2. Mr.Mushtaq Abdul Rahim Patel, & 3. Mr.Mansoor Abdul Rahim Patel. ..Respondents. .... Mr.S.V. Gavand, Advocate for the applicant in Cri.Application No. 2855/2009. Mr.P.S. Hingorani, A.P.P. for the Applicant-State in Cri.Application No.3389/2009. Mr.O.A. Siddiqui, Advocate a/w. Mr.Rajendra Rathod, Advocate for respondent Nos.1 to 3 .... 2 12.apln2855&3389-09 CORAM : A.R.JOSHI, J. DATED : 21ST JULY, 2010 P.C. 1. Heard rival submissions at length on these applications for cancellation of regular bail. Criminal Application No.2855/2009 is preferred by the original first informant injured challenging the order of bail passed on 8.6.2009 by the Additional Sessions Judge, Raigad-Alibag. By the said impugned order, bail application No.415 of 2009 preferred on the same day by present respondent Nos.1 to 3 was allowed granting them bail. The respondents are facing the charges punishable under Section 307 of IPC and also the offence of rioting armed with deadly weapons and also offence punishable under Sections 326, 324, 341 of IPC. 2. Out of the present two applications for cancellation of bail, one is preferred by the original complainant as mentioned above, whereas the another one bearing Criminal Application No.3389 of 2009 is preferred by the State. Both 3 12.apln2855&3389-09 the said applications were respectively preferred on 23rd June, 2009 and 21st July, 2009 i.e. almost within a reasonable time of granting of the bail. However, due to the systemic delay, present matters were taken today before this Court for final hearing and passing of the orders. 3. Certain earlier events are rather peculiar in nature and they are required to be mentioned with respective dates in order to ascertain whether now considering the effect in totality, it would be a case for cancellation of the bail or whether certain other orders and directions can be given for expeditious trial. The incident of rioting and deadly assault on the complainant and his other associates and friends occurred on the night of 29th December, 2007 when the complainant and others were proceeding in their vehicles. As and by way of a pre-arranged design their vehicles were accosted on the road by keeping two trucks on the both sides of the said vehicles and thereby damaging the vehicles in between the two trucks. The trucks were managed and 4 12.apln2855&3389-09 handled by the associates of the present respondents. Present respondents were also party members to the unlawful assembly and were armed with deadly weapons in as much as present respondent No.1 was allegedly armed with hockey stick and respondent Nos.2 & 3 were armed with a sword each. Similarly such weapons mainly hockey sticks and iron bars were used by the other accused persons. In all there are 45 accused persons and all are on bail . Two of the accused persons died during pendency of the matter. 4. The litigation before this Court and the Hon'ble Apex Court can be narrated in short as follows :- present respondent Nos.1 to 3 preferred anticipatory bail application in January, 2008 and on the same day it was rejected by the learned Sessions Judge, Raigad. After this, anticipatory bail application was preferred before this Court on 8.2.2008. However, it was withdrawn on 20.2.2008 after some hearing. Thereafter anticipatory bail application was again preferred before the concerned Sessions Court at Raigad by the present 5 12.apln2855&3389-09 respondents. It was preferred on 27.3.2008 and after hearing the rival submissions anticipatory bail was granted on 23.4.2008. Being aggrieved by such grant of pre-arrest bail to the present respondents, the complainant preferred an application for cancellation of anticipatory bail before this Court on 9.5.2008. So also, the State of Maharashtra preferred separate application for cancellation of anticipatory bail on 11.7.2008. Both the said applications were heard by the another Bench and were allowed vide order dated 27.2.2009. Again, being aggrieved by such cancellation of anticipatory bail, present respondents approached the Hon'ble Apex Court in SLP.. Initially the order passed by this Court was stayed by the Hon'ble Apex Court and subsequently on 12.5.2009 on the submissions made by the concerned Counsel for the State, directions were given to the respondents to surrender before the concerned Sessions Court at Alibaug-Raigad within six weeks and to apply for regular bail. It appears that till then there was protection and there 6 12.apln2855&3389-09 was stay to the order of this Court by which the anticipatory bail order was cancelled. As such, the protection granted by the Additional Sessions Judge, Raigad was existing till the surrender of the respondents before the Sessions Court. 5. What is emphasized on behalf of the present applicant is that when on 8th June, 2009 the respondents surrendered before the Sessions Court, on the same day said application was allowed, of course, after hearing rival submissions and even after getting on record the written say filed on behalf of the State. It appears that intimation of such surrender was given to the State and probably it might have been thought by the Government to be ready with a written say to object the application for regular bail. Apparently only ground mentioned in the said application objecting for grant of bail was recovery yet to be made from the then applicants/present respondents of the respective weapons. 6. On this ground, it is significant to note various dates as mentioned above and mainly the incident which took place 7 12.apln2855&3389-09 on 29.12.2007 and request of the State for having an opportunity for custodial interrogation of the accused for recovery of the weapons is 8.6.2009. 7. Probably the above factual position was weighed with the learned Additional Sessions Judge who granted bail to the present respondents. 8. During the arguments, the learned Advocate Mr.Gavand for the original complainant strongly emphasized the aspect that it was not so necessary for the learned Additional Sessions Judge to hastily pass the bail order on the same day of the filing the application though there was direction from the Hon'ble Apex Court as to expeditious hearing of such bail application. In the opinion of this Court, whether or not such application was decided on the same day, is not the criteria in order to view the said order of smacking any controversy, but whether or not the rival parties were heard at length and whether the opportunity was given to the State to be heard and also to file their say, was the question. 8 12.apln2855&3389-09 As mentioned above, on 8th June, 2009 the State was ready with the say and infact the arguments were advanced. 9. During the arguments, shelter of various authorities and ratios propounded therein was taken on behalf of the original complainant and also by the State while challenging the impugned order. The learned Advocate for the applicant/orig.complainant relied on the following authorities : [i] 2009(1)Bom.C.R. (Cri.) 178 [Dinesh M.N. (S.P.). Vs. State of Gujarat.] [ii] AIR 2001 SUPREME COURT 3173 [Anil Rai Vs. State of Bihar.] [iii] 2001 CRI. L.J. 2566(1) [Puran Vs. Rambilas and another] 10. It is further submitted on behalf of the applicant that if the impugned order is patently perverse then there need not be going into the details as to the other ground whether the accused persons have misused their liberty after availing 9 12.apln2855&3389-09 the bail and as such instead of such ground or still with non availability of such ground of tampering with the prosecution witness or flouting any of the conditions, still there can be cancellation of bail on merits of the case. 11. Counter to the above arguments, learned Advocate Mr.Siddiqui for the respondents placed reliance on the ratios propounded by the following authorities: [i] 2009 ALL MR (Cri) 900 (S.C.) [Ashok Kumar Vs. State of U.P. & Anr.] Vs. State of Gujarat.] [ii] AIR 1966 SUPREME COURT 911 [Thakur Ram Vs. State of Bihar] 12. It is submitted on behalf of the respondents that still if the order granting bail suffers from some infirmities, it cannot by itself be a ground for cancellation of bail if the accused persons are on bail for considerable long time. While arguing this, emphasis was led on the authority reported in 2009 ALL MR (Cri) 900 (S.C.) (supra). 10 12.apln2855&3389-09 13. Considering the rival arguments in totality and considering the above mentioned factual position as to litigation taking place from the Sessions Court, Alibag till the Hon'ble Apex Court and again reaching back to the Sessions Court and coming to this Court for cancellation of regular bail, and still considering certain observations made by the Additional Sessions Judge, Raigad while passing the impugned order dated 8.6.2009, it cannot be said that the said order of granting bail is of such perverse nature so as to be undone. Still it can be said that the reasoning given in para-13 of the impugned order might be not properly worded still only on such observation, it cannot be said that the order of Additional Sessions Judge is per se pervert. Much emphasis was placed by the learned Advocate for the applicant on such observations made by the Sessions Court to the following effect that -- the injuries sustained by the injured persons have already been healed. Apart from such observation, there are also observations by the said Additional Sessions Judge 11 12.apln2855&3389-09 that -- by rejecting the application of bail nothing fruitful would be served and that is because of the lapse of time. Considering these averments and considering observations of the learned Additional Sessions Judge and still considering that admittedly there is a rivalry between the two groups, now it would not be in the fitness of the situation to quash the said order of bail & to take them in custody. On the contrary, certain directions can be given to the concerned Court for expeditious hearing of the matter so as to put an end to the allegations. In the result, both the present applications are disposed of with following order : :: O R D E R :: [i] Criminal Application Nos.2855/2009 & 3389/2009 stand rejected. [ii] Additional Sessions Judge Alibag-Raigad who is seized of the concerned Sessions Case shall deal with the matter as expeditiously as possible without being 12 12.apln2855&3389-09 influenced by any observations made by this Court while passing this order. (A.R.JOSHI,J.) ppd