1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO.1377 OF 2010 Afsar Khan s/o Yasim Khan ... APPLICANT VERSUS The State of Maharashtra & anr. ... RESPONDENTS ..... Shri Rajendra Deshmukh, Advocate for the applicant Shri D.V. Tele, A.P.P. for the respondents Shri S.G. Ladda, Advocate for original complainant ..... CORAM : SHRIHARI P. DAVARE, J. DATED : 30h April, 2010 PER COURT: 1. Heard Mr. Rajendra Deshmukh, learned counsel for the applicant as well as heard Mr. D.V. Tele, learned A.P.P. for the respondents and Mr. S.G. Ladda, learned counsel for the original complainant. 2. This is an application preferred by the applicant, seeking anticipatory bail, apprehending his arrest under C.R. No.I-07/2010, registered at Begumpura Police Station, Aurangabad, for the offence punishable under Section 307 read with Section 34 of the 2 Indian Penal Code and under Sections 3 and 4 of Arms Act. 3. It appears that, the offence has been registered on the complaint lodged by the complainant namely Abdul Aziz Mohd. Nahdi Chaus on 11.1.2010 in respect of the incident allegedly occurred on the same day. It is alleged in the said complaint that, at about 1.30 p.m. to 1.45 p.m. on 11.1.2010, when complainant was proceeding towards his farm at Makai Gate on motorcycle, and when he reached at Begumpura Chowk, somebody cracked the fire crackers, and while he was proceeding from the said place, the applicant namely Afsar Khan and co-accused Alimkhan and Hussainkhan, who were armed with sword like edged weapon and iron rod, rushed towards the complainant and halted him and stated to him angrily that "Tum Court Se Chhute To Kya Hua Hamare Court Se Abhi Nahi Chhute", and thereupon the applicant assaulted the complainant by sword on his head, and co-accused Alimhan assaulted the complainant on his legs and hands by sword and thereupon the complainant's palm was cut as well as co-accused Hussainkhan assaulted the complainant by iron rod on his hands and legs and thereby he was seriously injured and became unconscious. It is also stated in the said complaint that when he regained the consciousness, he found himself in Ghati Hospital under medical treatment and came to know that Vishal Nikalje and his brother Abdul Rahman brought him to Ghati Hospital, Aurangabad. 3 4. On the aforesaid background, the learned counsel for the applicant canvassed that, there is cross complaint filed by one Mr. Akram Khan Nabu Khan in respect of the same incident at about 18.20 Hrs. i.e. after 10 minutes of the F.I.R. in question, on 11.1.2010, under C.R. No.8/2010. It is also submitted that, the applicant is an active political worker and he was to contest the elections of Agriculture Produce Market Committee (A.P.M.C.) and due to political rivalry, present complaint has been lodged against him falsely with a view to implicate him in a false case. It is further submitted that, the co-accused in the present C.R. has been already released on bail by the learned Sessions Court. It is also urged that, during the course of investigation, statements of number of witnesses have been recorded and about 19 witnesses have fortified the applicant in their respective statements, contending that, the applicant was not present on the spot at the time of the alleged incident. 5. As regards the complaint filed against the applicant on 28.1.2010 by one Yasir Ahmed Nahdi, the applicant contends that, the said complaint also has been lodged against the applicant falsely and although the alleged incident occurred on 24.1.2010 as per the said complaint, the said complaint came to be lodged belatedly after four days i.e. on 28.1.2010, which itself indicates 4 that the said complaint has been lodged after concoction against the applicant falsely. 6. While opposing the present application vehemently, the learned A.P.P. submitted that, there are three eye witnesses to the occurrence of the incident namely Vishal Nikalje, Yasir Ahmed and Shaikh Talib, who witnessed the occurrence of the incident, and the statements of the said eye witnesses connect the applicant with the alleged crime. The learned A.P.P. submitted that, the injury certificate of the complainant discloses that he sustained three fractures, one stab wound and around four C.L.Ws., and the nature of the injuries sustained by the complainant is grievous and, therefore, the charges levelled against the applicant are serious and investigation is under progress and same has not been completed and, therefore, custodial interrogation of the applicant is necessary. It is further urged by learned A.P.P. that since the name of the applicant has been reflected in the complaint and specific role and overt act has been attributed to him, there is no question of any false implication of the applicant in the present crime. Besides that, learned A.P.P. submitted that, after filing the present application, interim relief was granted to the applicant and during the course of the said interim relief, the applicant has produced one sword, allegedly used in the crime, and same has been seized and report dated 26.4.2010 to that effect has been 5 shown during the course of argument by learned A.P.P. Accordingly, the learned A.P.P. submitted that the accusations made against the applicant are serious and, therefore, present application deserves to be rejected. 7. Mr. Ladda, learned counsel appearing for original complainant opposed the present application vehemently, and pointed out that, although the incident in question occurred on 11.1.2010, the applicant has filed the present application for anticipatory bail after the lapse of about 2 ½ months i.e. on 22.3.2010, which speaks volumes for itself. Mr. Ladda, learned counsel for the original complainant showed some photographs annexed to his application, which was filed with request to intervene in the present matter, and submitted that, the said photographs themselves disclose how severely the complainant was assaulted during the occurrence of the aforesaid incident. Mr. Ladda, learned counsel for the original complainant submitted that, during the period of interim protection, the applicant deliberately produced the sword, allegedly used in the aforesaid incident to avoid the custodial interrogation. Mr. Ladda, learned counsel for the original complainant further submitted that applicant is an influential person and even he could get access to the injury certificate of the complainant and copy thereof has been produced at Page 53 in the present application. 6 8. On perusal of investigation papers and after considering the rival submissions advanced by learned counsel for the respective parties, at the outset, the contents of complaint dated 11.1.2010 lodged by the complainant namely Abdul Aziz reflect the name of the applicant categorically, as well as specific role and overt act has been attributed to the applicant therein and, therefore, apparently, there is no possibility of false implication of the applicant in the present crime or to malign his reputation by lodging the present complaint. Moreover, there are three eye witnesses to the occurrence of the incident namely Mr. Vishal Nikalje, Yasir Ahmed and Shaikh Talib and on perusal of the contents of their statements, it is apparent that, the said statements connect the applicant with the alleged crime. As regards the arguments canvassed by learned counsel for the applicant that there are other 19 witnesses, who fortify the applicant, and stated that applicant was not present at the time of occurrence of incident, the said aspect can be considered and dealt with appropriately at the time of trial after appreciating the evidence, and not at this stage. 9. Besides that, the injury certificate of the complainant discloses that he sustained three fractures, one stab wound and four C.L.Ws., and the nature of the said injuries is grievous. In the said context, the learned counsel for the applicant submitted that, 7 the co-accused, who allegedly caused fracture injuries to the complainant, has been released on bail and the injury No.8 i.e. C.L.Ws. at the most can be attributed to the applicant, which is on parioto occipital region and not beyond that. However, the fact remains that, the complainant sustained aforesaid three fracture injuries, one stab wound, 4 C.L.Ws. and even considering the C.L.Ws., which at the most can be attributed to the applicant, is on parioto occipital region i.e. on the head and which admeasures 4 x 0.5 x 0.5 cms., which is within 24 hours, also appears to be serious, since it is on the vital part of the body. Moreover, the nature of the said injury, as stated in the said injury certificate, is grievous, and hence, the said injury certificate is one of the pieces of incriminating evidence against the applicant. 10. True it is that there are cross complaints in respect of the same incident and the complaint in the present application i.e. C.R. No.I-07/2010 has been lodged at about 18.10 Hrs. on 11.1.2010 whereas the cross complaint has been lodged at 18.20 Hrs. on the same day i.e. 11.1.2010 in C.R. No.8/2010 by the complainant namely Akram Khan, but the filing of cross complaint will not absolve the liability of the applicant in the present complaint, and as per the contents of the present complaint, as mentioned herinabove, name of the applicant has been reflected therein, as well as specific role and overt act has been attributed to 8 the applicant that he assaulted the complainant by an edged weapon like sword and, therefore, the accusations against the applicant are of serious nature. 11. As regards the contention of the learned counsel for the applicant that the applicant is active political worker and is President of A.P.M.C. and, therefore, the present complaint has been lodged against him falsely out of political rivalry to implicate him in the present case. However, considering the contents of the present complaint and specific role attributed to the applicant therein as mentioned hereinabove, apparently, the said contention does not bear substance. On the aforesaid background, Mr. Ladda, learned counsel for the original complainant submitted that, there are inasmuch as 14 criminal complaints filed against the applicant and same are pending against the applicant. However, learned counsel for the applicant submitted that, the said contention is made during the course of arguments and he is not given any opportunity to reply the same, and also submitted that, such contention was not raised by learned A.P.P. Apart from that, whether said 14 criminal cases are pending against the applicant or not, admittedly, C.R. No.16/2010 filed by Yasir Ahmed Nahdi on 28.1.2010 is pending against the applicant in respect of offences punishable under Sections 452, 504 and 506 read with Section 34 of the Indian Penal Code and the alleged delay of four days caused 9 in filing the said complaint can be considered at the time of trial of the said case, but fact remains that, said case is pending against the applicant. 12. Having the comprehensive view of the matter, and considering the facts and circumstances, I am of the view that, the accusations made against the applicant are of serious nature and apparently, there is no possibility of false implication of the applicant in the present offence and, therefore, custodial interrogation of the applicant is necessary for the further progress in the investigation in proper perspective and, therefore, present application deserves to be rejected. 13. In the result, present application being sans merits, stands dismissed. 14. Needless to say that the above observations are prima facie in nature and shall not come in way of any Court while deciding the matter on merits. 15. Mr. Rajendra Deshmukh, learned counsel for the applicant made submission that, since the applicant was protected earlier by learned District Judge-5, Aurangabad till 6.4.2010, by interim protection, as well as since this Court also has granted 10 interim protection to the applicant on 6.4.2010, which is effective till today, the learned counsel for the applicant requested that the said interim protection be extended for a reasonable period to enable the applicant to approach to Apex Court. 16. Mr. D.V. Tele, learned A.P.P. opposed the said prayer and submitted that the said request be rejected since this Court has passed reasoned order on merits. 17. Mr. Ladda, learned counsel for the original complainant also opposed the said request and supported the contention of learned A.P.P., and submitted that, the said request be rejected since it bears no substance as the reasoned order has been passed by this Court on merits. 18. Considering the rival submissions, since the District Judge-5, Aurangabad had granted the interim protection to the applicant on 26.3.2010, which was effective till 1.4.2010 and thereafter same was extended till 6.4.2010, and further, since this Court granted interim protection to the applicant on 6.4.2010, which is in force and effective till today, the principles of natural justice warrant that the said interim protection be extended for the reasonable period to enable the applicant to approach to Hon’ble Supreme Court, if required and, therefore, it is directed that, interim 11 protection granted in the present application on 6.4.2010 stands extended till 7th May 2010, but simultaneously the applicant is directed to attend the concerned police station as and when required, on written intimation, till the said date, and cooperate in the investigation and shall not tamper with the evidence and/or influence upon the witnesses directly/ indirectly during the said period. 19. Parties to act on copy of this order, duly authenticated by Sheristedar of this Court. (SHRIHARI P. DAVARE) JUDGE fmp/cri13772010