1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELALTE JURISDICTION CRIMINAL APPLICATION NO. 438 OF 2009 Sharjil Mohd. Hanif Momin ..... Applicant. V/s State of Maharashtra ...... Respondent Mr. M.A. Khan for the applicant. Mr. S.R. Shinde, APP for the State. ALONGWITH CRIMINAL APPLICATION NO.439 OF 2009 Mohd. Shakeel Mohd. Ilyas Momin ......Applicant. V/s State of Maharashtra ..... Respondent. Mr. M.A. Khan for the applicant. Mr. S.R. Shinde, APP for the State. CORAM: V.M. KANADE, J. DATE : 27th February, 2009 P.C.: 2 1. Heard the learned Counsel appearing on behalf the applicants and the learned APP for the State. 2. Applicants have been arrested in connection with various CRs which have been registered with Bhiwandi Police Station on 5/7/2006. Brief history of the criminal case is as under:- 3. Government had taken a decision to construct a Police Station on a piece of land situated at Bhiwandi since the Government has noticed that existing Police Station did not have proper infrastructural facilities and since during rainy season the said Police Station used to get flooded since it was situated in a low lying area. This move was opposed by certain persons who are members of Raza Academy. Applicants, admittedly, are the members of the said Raza Academy. The said Raza Academy on behalf of its members filed a suit in civil court seeking injunction against the Government for restraining them from carrying on construction on the said plot of land. Injunction, however, was not granted. The Government, thereafter, started construction of Police Station on the said disputed piece of land. A procession (morcha) was taken out by some persons including the present applicants to the old Police Station. Thereafter, the said mob became violent and they started throwing stones on the Police Station in which certain Police Officers were injured in stone throwing incident. The Senior Inspector of Police ordered initially lathi-charge on the mob. However, when things went out of control, he directed the police to open fire with their rifles on the mob. In this police firing, two persons from the mob were injured and subsequently died. 3 Thereafter, rioting by the mob continued at different places and when news reached about death of those two persons, a crowd of 75 to 100 persons went on rampage to avenge the death of two persons who were killed in police firing and they set on fire the buses and vehicles which were parked on the road. It was also alleged that the mob stopped the motor-cycle and killed to police constables. Pursuant to various CRs which were lodged, large number of people were arrested. 4. The present applicants filed an application for anticipatory bail which was rejected by the Trial Court. However, regular bail was granted to other persons who were arrested in various CRs which were registered at Bhiwandi Police Station. Thereafter, present applicants filed an application for anticipatory bail before this Court and the State filed an application for cancellation of bail which was granted to other persons. The application for anticipatory bail was withdrawn by the present applicants, after the matter was argued for some time and more particularly after this Court had expressed that it is not going to grant anticipatory bail to the applicants. Thereafter, a fresh application was filed for restoration of the anticipatory bail application. The said request was granted and again the matter was argued by new advocate who was appointed on behalf of the applicants and the application for anticipatory bail was heard on merits and, thereafter, by a detailed reasoned order, the application for anticipatory bail was rejected by this court. Against this order, the present applicants preferred SLP in the Apex Court. The SLP was also dismissed. However, time was granted to the applicants to surrender before the concerned court. Accordingly, applicants surrendered before the concerned court on 21/11/2008 and thereafter 4 they are in custody. Application for regular bail filed by them before the Sessions Court was rejected. Being aggrieved, they have now preferred this application in this court. 5. I have perused the statements of the witnesses and the First Information Reports which were filed in the 6th and 7th CR which were registered on 5/7/2006. The bail which was granted to other accused by the learned Sessions Judge was confirmed by this Court in the application for cancellation of bail filed by the State Government and only in few cases bail was cancelled where it was brought to the notice of the court that those persons had taken active part in the role of murder of the two constables. The accused who had taken part in the earlier incident of stone throwing and where a minor role was attributed to those accused, they were released on bail. In the present case, role which is attributed to the present applicants is that they had instigated the crowd in the first incident which had taken place near the Police Station. No material has been shown to me to indicate that the present applicants had any role to play in either instigating the mob to go on rampage and avenge the death of their brothers in the police firing or any role is attributed to the present applicants in actual murder of the two police constables and burning of buses in the said incident. That being the position, present applicants are entitled to be released on bail on the ground of parity. 6. Mr Shinde, the learned APP appearing on behalf of the State has strenuously urged before me that the present applicants were the main conspirators and they were responsible for the entire incident since they had actively opposed the construction of Police Station on the said site. He read the statement of the complainant who had 5 recorded CR No.100 of 2006. Perusal of the said FIR clearly indicates that no role has been attributed to the present applicants save and except the initial instigation at the incident which took place near the Police Station. There is no witness who has mentioned about the presence of the present applicants at the time of the incident mentioned in CR No.100 of 2006. That being the position, in my view, applicants deserve to be released on bail, particularly because the charge-sheet already has been filed. The learned APP, however, has expressed his apprehension that the applicants being leaders of instigating members of the public cannot remain quiet if they are allowed to return to the City on bail being granted. It is, therefore, submitted that suitable conditions may be imposed against the present applicants. There is some substance in the said submission. 7. Under these circumstances, taking an overall view of the matter, applicants be released on bail in the sum of Rs 10,000/- each with one or two sureties in the like amount subject to the following conditions. (i) Applicants shall not enter Bhiwandi Taluka for a period of six months from today. (ii) Applicants shall give their new residential address to the police and shall report to the nearest Police Station once in a week from their new address for a period of six months. (iii) After expiry of six months from today, applicants shall report to Bhiwandi Police Station twice in a month. 6 (iv) Applicants shall not tamper with evidence or threaten any of the prosecution witnesses. (v) Applicants shall not take part in any procession (morcha) or demonstrations in respect of the issue which is pending in the civil court about construction of the Police Station. If applicants take part in such procession (morcha), that would be considered as one of the grounds for cancellation of bail if the application for cancellation of bail is filed. (vi) If any complaint is received against the applicants, liberty is granted to the police to apply for cancellation of bail. 8. Application is disposed of. (V.M. KANADE, J.)