IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 85 OF 2008 Makkihasan Ajamatullah Khan @ Makki & Anr. ......Petitioners V/s The State of Maharashtra. ..... ...... .....Respondent. Mr.S.M.Oak i/by Mr.Sagar Joshi, Adv. For the petitioners. Mr.Y.S.Shitole, APP For the respondent. CORAM: A.P.DESHPANDE, J. 24/1/08 PC: Rule. Rule made returnable forthwith. Taken up for final hearing by consent. The petitioners are original accused Nos. 1 and 9 respectively. The petitioners are accused in CR No.I-89/05 registered with Mumbra police station. The petitioners were arrested on 30.3.05 under sections 399 and 402 of Indian Penal Code read with section 4, 25 of Arms Act read with section 37(1) of the Bombay Police Act and were produced before the JMFC, Thane. Initially they were remanded to PCR and thereafter to MCR and ultimately came to be released on bail. It is case of the petitioners that they were attending the Court and have remained absent only on few occasions. As the petitioners were absent the trial Court issued non bailable warrant on 21.8.07. The petitioners appeared before the trial Court on 5.12.07 on their own and filed 1 application for cancellation of non bailable warrant by contending that as they had gone to their native place in UP they could not attend the case and hence non bailable warrant was issued against them. The trial Court rejected the applicant by passing an order on 15.12.07. The period of custody has thereafter been extended from time to time and thus the petitioners continue to be in custody. The application for cancellation of non-bailable warrant came to be rejected by trial Court mainly on the ground that on account of absence of the petitioners the case could not be committed. The application moved by the petitioners before the Sessions Judge also came to be rejected and hence the present petition has been filed. The learned counsel for the petitioners has submitted that for reasons beyond their control the petitioners could not attend the trial Court which resulted in issuance of non bailable warrant and ultimately the petitioners have been taken into magisterial custody. He submits that hereafter the petitioners will attend the case on each date without fail so that no inconvenience is caused to the trial Court so also the co-accused. The learned additional public prosecutor has submitted that the petitioners have been habitual in remaining absent and they need not to be shown any leniency. It is alternatively submitted that if and in case petitioners are to be released on bail then the same should be subject to stringent condition that if petitioners remain absent even on one date in the trial Court without seeking permission or exemption from the Court the bail so granted shall stand canceled. Having regard to the totality of the facts and 2 circumstances I am of the view that the petitioners need to be released on bail on the same terms and conditions on which they were earlier released on executing fresh bonds, subject however to a further condition that in case petitioners remain absent before the trial Court on any date without permission or exemption from the trial Court their bail shall stand cancelled. Rule made absolute in above terms. 24.1.08 3