appln-1911-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL BAIL APPLICATION No. 1911 of 2010 WITH CRIMINAL APPLICATION No.371/2010 Rachana Lalit Kankani and ors vs. State of Maharashtra and ors. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s orders. Court’s or Judge’s orders Mr A.H.H.Ponda, Senior counsel, for the Applicant. Mrs Rashmi Gagwani i/by Ganesh Gole Advocate for the Intervener-complainant. Mrs A.S.Pai, A.P.P.,for the State. CORAM:- A.R. JOSHI, J. DATE :- 1ST JULY, 2010. P.C.:- 1. Heard rival submissions for some time on this regular bail application preferred by three applicants for their release on bail during the pendency of the trial for the offence punishable under sections 302, 307, 427 and offences of rioting armed with deadly weapons and mainly the offence punishable under section 149 of I.P.C.and even under sections 120-B and 504 and 506 of I.P.C. Allegedly there are also offences punishable under sections 3 and 25 of Arms Act. appln-1911-10 2. In the present matter, mother of the deceased filed application for intervention and arguments on behalf of the intervener are also heard today. 3. Admittedly, out of the same incident which occurred in the broad day light at 11.00 a.m. on 6.12.2009 cross complaints came to be lodged, the first in point of time, in C.R.No.149/2009 against the present applicants and the co-accused. 4. Apparently, there are total 13 accused persons out of whom 11 are arrested. However, none of them are released on bail. Mr H.H.Ponda, learned Senior Counsel submitted that two accused persons were granted anticipatory bail by the Apex Court. However, on instructions learned A.P.P. submits that to the knowledge of the police it is not a fact. Another counter case is registered vide C.R.No.150/2009 which is for rather minor offences and mainly for the offences of rioting and 326 of I.P.C.etc. Said counter complaint was lodged at the instance of present applicant No.1 who is the accused in C.R.No.149/2009. 5. During the arguments, reliance is placed on the contents of the F.I.R. given by Mahesh Nare and statement of Dnyaneshwar Kolekar, both of them are eye witnesses to the incident, and in their presence there was assault and commotion and rather a riot like situation at the office of the present applicant No.1. In fact, according to the first informant, he, other witness, his one more friend were asked to attend the office of one Rana Roi which is near some petrol pump. Apparently, there was some dispute over the immovable property and on account of some contract work for development of the immovable property. Apparently, there are allegations in the counter cases that there was a riot created by more than 20 to 25 persons or even more on their rival sides. What is material so far as the present application of the present applicant is concerned, applicant No.3 is the person appln-1911-10 named by the first informant, as he along with other two other persons, all known to the complainant, asked the complainant and his another friend, eye-witness to attend such office of Rana Roi as mentioned above, at the said office the complainant and his friends entered along with their another friend Sameer (since deceased). 6. At that time, present applicant No.1 and also other two applicants were present and there was some hot exchange of words and in fact abusive language was used. Threats of dire consequences of killing were given by one Bhalchandra - co-accused to the deceased Sameer and in fact Sameer was shot dead in the said office. Present first informant tried to apprehend the accused Bhalchandra Bhoir but in the mean time another co-accused Prakash Bhoir took out a revolver from Bhalchandra and fired in the direction of the complainant but the complainant could escape such shot and ran away. Thereafter, 20 to 30 people who had gathered outside the office ransacked the vehicle brought by the complainant and his friends. Though, apparently, no any overt act was attributed to the present applicants, their presence was very much spelt out from the statement of the first informant and also of the eye witness Dnyaneshwar Kolekar. 7. By pointing out the contents of said statements of first informant and eye witness it is strongly argued on behalf of the applicants that only for their presence, the applicants cannot be considered as having the same role to do away with said deceased or anything to do with the fire on the said person. At this juncture, it may not be lost sight of the factual position that there are counter cases and almost similar allegations are imputed against the rival groups. Apparently, the vehicles belonging to the present applicants and their associates were also burnt on the appln-1911-10 spot and which are dumper and JCB machine. Equally the Innova vehicle brought by the complainant was also ransacked and damaged. Again, the application of section 149 cannot be over looked while dealing with this type of matters and it is not the necessity at this stage of bail to hair split the evidence as to whether the present applicants could be saddled with the object under section 149 of I.P.C.and whether they could be held liable for offence of 302 read with section 149 of I.P.C. 8. All the same, considering the rival complaints and riot like atmosphere created by the persons from both the sides and in which there is unfortunate death of one Sameer Gosawi, it would not be in the fitness of situation to release the present applicants on bail during the pendency of the matter. In the result, the following order:- ORDER: (a) Bail application of the applicants is rejected. (b) Any observations made in this order shall not be construed as any finding or any expression of opinion on the merit of the case at the time of trial. (c) Application for intervention is disposed of. (A.R.JOSHI,J)