1 APPLN 2271 OF 2010.sxw vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2271 OF 2010. Ashok Lakhumal Wadhwa .. Applicant -versus The State of Maharashtra .. Respondent. Mr. I.S.Thakur with Ms Shraddha Mohite, for the Applicant. Mr. P.A. Pol, Public Prosecutor with Mrs. A. A. Mane, APP for the State. Mr. S. H. Joshi, for intervenor. CORAM: R.C. CHAVAN, J. DATED: 25th August, 2010 P.C. 1. The applicant has filed this fifth application for bail . The first application was rejected by this Court 11th August, 2008, when the chargesheet had already been filed. After considering the entire material and all the arguments, this Court found that the applicant was not entitled to be enlarged on bail. Since the bench deciding this application could not hear successive applications, they were placed before other benches. Thereafter applicant again sought bail on the ground that he wanted to take treatment. This Court ordered that the applicant should be allowed to take treatment in the private hospital under police escort. 2 APPLN 2271 OF 2010.sxw 2. Thereafter the applicant was granted temporary bail for a period of two months for undergoing Liver transplant surgery in Wockhardt hospital which he has not undergone and during which period he carried on his business as builder and had executed an agreement of sale. And, rather than taking treatment, the applicant threatened the complainant. 3. Thereafter the applicant applied for extension of bail by filing Criminal Application no.5392 of 2009, wen this Court found that the documents about his ailment tendered by the applicant were false and therefore, this Court did not accept with the applicant’s version and asked him to surrender. Now the applicant has come up with this fresh bail application since in the order dated 24th September, 2009, liberty was granted to applicant to move the Court after a period of three months for bail. 4. The learned APP and the learned counsel for the applicant original complainant submitted that since the trial has already commenced and since applicant’s bail application was rejected previously after considering merits of the matter, this application should not be entertained. 5. The learned counsel for the applicant points out that since some details had not been pointed out to the Court when the earlier application was decided, in view of the judgment in Babu Singh -vs- State of Uttarpradesh, AIR 1978, 527, this 3 APPLN 2271 OF 2010.sxw application may be entertained. The learned APP as well as learned counsel for complainant have raised a strong objection, stating that in that case, the advocate who argued the matter first should be arguing this matter. Propriety undoubtedly so demanded. Even so, since the matter was argued at length on merits, it may be improper to shut out a scrutiny of the case on merits. 6. The learned counsel for the applicant points out that at worst the allegation against his client is that he engaged his servant Pappu Yadav for breaking hands and legs of victim Bisham Kamara. The statement attributed to Pappu Yadav in the extra judicial confession to Mr. Dayal Bhagwandas Gyanchandani, is that the applicant had engaged Pappu for breaking hands and legs of Kamra. It was the worst that can be attributed to applicant about engaging in conspiracy or instigating Pappu to indulge in criminal act, is about breaking hands and legs of victim and not to kill the victim. 7. The learned counsel for applicant drew my attention to a judgment of Hon’ble Supreme Court in case of Matadin -vs- State of Maharashtra, 1999 (5), Bom. C.R. 468, where the allegation against the abettor was that he said to the assailant “Maro sale ko” and the Court found that this was ambivalent and in the factual context did not mean instigation to kill, but only 4 APPLN 2271 OF 2010.sxw instigation to beat. In the present case the the alleged instigation is specifically restricted to breaking hands and legs. The applicant was admittedly not present when the mission was executed. Thus, as the prosecution case stands, the learned counsel is right in submitting that there is no allegation of applicant conspiring to kill the victim. Incidentally, the learned counsel for applicant pointed out that the dispute which was the cause of this killing was not with applicant but with Prakash Chandwani, who is stated to be applicant’s friend. 8. The assailant Pappu had been taken before a Magistrate for recording confessional statement under section 164 of Criminal Procedure and stated that the present applicant had promised to pay Pappu Rs. 20 lakhs if Pappu stated before Magistrate that Pappu named the applicant because police had beaten Pappu. This may indicate applicant’s complicity, as contended by the learned APP but only in engaging in a conspiracy to break hands and legs of victim for offence punishable u/s 325 of Indian Penal Code. The manner of attack stated in the chargesheet is significant. It was alleged that when victim had started his motorcycle to return home, accused Mahesh pelted a stone of victim’s head and then assailant Pappu stabbed the victim. 9. In this context, question is whether the applicant who has been in jail for 2 years and 8 months now should continue to be 5 APPLN 2271 OF 2010.sxw in jail, pending trial in which first witness was examined on 9th April, 2009 and trial is proceeding at this snail’s space, though, the possibility of the trial being held up because of the applicant, cannot be ruled out. The learned counsel for applicant drew my attention to a Judgment of Hon’ble Supreme Court in case of Manojkumar Saharan -vs- State of Rajastan, 2002 All M.R. (Cri) 429, where the Court had ordered release of an accused on bail when 13 witnesses had already been examined at the trial. Considering this, inspite of the fact that the applicant has misused liberty when released on bail on medical treatment for which he would have to be separately dealt with, the applicant’s detention pending trial may not be warranted and the apprehension about applicant’s interference with the trial or tampering with the witnesses can be taken care of by imposing stringent conditions on the applicant. Hence following order. ORDER. i) The application is allowed. ii) The applicant be released on PR bond of Rs. 1,00,000/- (Rs. One lakh only) with one or more solvent sureties in the like amount with the condition that the applicant himself shall keep away from Thane District till the trial is over and shall enter Thane District for attending the 6 APPLN 2271 OF 2010.sxw trial only on the dates when the trial is fixed and shall promptly leave the limits of Thane District after the hearing of the date is over. iii) The applicant shall also surrender his passport if any before the Trial Court and furnish his all telephone numbers and the place and address where he would be staying till the trial is over, to the Investigating Officer concerned and shall not make any contact with witnesses who are to be examined at the trial. (R. C. CHAVAN, J.)