1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CRIMINAL APPLICATION (BA) NO. 623/2011 Rajesh Jumman Methiya..vs.. State of Maharashtra, thr. PSO P.S. Ramnagar, Dist. Gondia - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. R. M. Daga, Advocate for applicant. Mr. M. J. Khan, A.P.P. for State. CORAM : M.N.GILANI, J. DATE : NOVEMBER 28, 2011. 1. Heard learned counsel for the parties. 2. This is an application under Section 439 of the Code of Criminal Procedure for releasing the applicant on bail against whom an offence bearing Crime No. 16/2011 is registered with Police Station, Ramnagar, Dist. Gondia for the offences punishable under Section 147, 148, 302, 307, 324 read with Section 149 of the Indian Penal Code. 3. One Harikisan Choudhari, who is the complainant, runs Sharda Hotel and Bar at Gondia. On 06.03.2011 at about 10.00 p.m. while he was in the hotel, his neighbour-Surendra's wife approached him. Her grievance was that 10-12 persons had come to her house and they were insisting upon her to vacate the residential house. She pleaded with the complainant for having a word with those persons since it was not possible for her to vacate 2 the house in the night. Accordingly, the complainant, his elder brother Ramkisan Choudhari (since deceased) and one Sanjay Meshram requested those persons that at such night time they should not insist upon Mrs. Surendra to vacate the premises. All those persons were armed with weapons like sword, iron rods, hockey sticks etc. The exchange of words between them followed into attack on the complainant and his brother Ramkisan (deceased) and Sanjay Meshram. 4. Ramkisan was removed to the hospital. On examination, Doctors declared him dead. Sanjy Meshram and the complainant sustained injuries. On the night intervening 06.03.2011 and 07.03.2011, the First Information Report was lodged with Police Station, Ramnagar, Gondia. 5. On examination, incised wounds were noticed on the person of the deceased Ramkisan Choudhari. His death was due to injury to his vital organs, i.e. brain and head injury. Injuries like incised wounds and bone deep bleeding injuries on forehead, multiple punctured wounds on legs were found on the person of Sanjay Meshram. On the person of complainant-Harikisan lacerated wounds were noticed on eyebrows and hand. 6. All the accused have been charged with the aid of Section 149 of the Indian Penal Code. It is the contention of 3 learned counsel for the applicant that the role attributed to the applicant Rajesh Methiya is only of holding iron rod. This Court (Coram: U.V. Bakre, J.) vide order dated 21.09.2011 released co- accused Lokesh @ Kallu Yadav, who according to the First Information Report, was holding hockey stick. According to him, the Sessions Court, vide order dated 29.04.2011, released Bhavani Yadav on bail. As per the First Information Report, he was holding sword. The next contention of the learned counsel for the applicant is that there was a counter case in respect of the same incident and for that an offence under Section 307 read with Section 149 of the Indian Penal Code is registered against the complainant and his associates. Copy of the chargesheet in the counter case is perused. It seems that 5-6 persons had sustained injuries. 7. After considering the First Information Report and also chargesheet pertaining to the counter case, what appears is that there was a free fight between two groups. At this stage, it cannot be determined as to which group initiated the assault. However, the genesis of the incident was that the accused persons had come to the house of Surendra and were insisting upon his wife to vacate the premises and because of that the complainant, his brother and friend had intervened. Prima facie, it appears that the 4 accused persons, in this case, were already armed with deadly weapons and wanted the premises to be vacated in the night itself. 8. In that light of the matter, there is a reason to believe that the accused persons, including the applicant, were members of the unlawful assembly and the fact that one person died of injuries and two persons sustained injuries is relevant. At this stage, it can be inferred that the object of the assembly was to cause such serious injuries which are sufficient to cause death. It is stated in the reply of the non applicant-State that: “The applicant-accused is an accused in (1) Crime No. 165/2002 under Sections 302 read with 34 of Indian Penal Code. The applicant-accused was convicted by the learned trial Court vide judgment and order dated 28.9.2004. Life imprisonment and fine of Rs.5,000=00 awarded and sentence of 10 days in default of payment of fine (2) Crime No. 328/2006 under Sections 147, 148, 149, 323 of Indian Penal Code read with Section 135 of the Bombay Police Act; (3) Crime No. 203/2009 under Sections 143, 147, 148, 149, 324, 207 of the Indian Penal Code. Proposal vide Proposal No. 1/2007 under Section 56 (A) of the Bombay Police Act for externment of the applicant-accused was also moved against the applicant- accused and he was externed by the Sub-Divisional Officer, Gondia. Subsequent to commission of offence listed at Serial No. 3 supra, fresh proposal for externment of the applicant-accused under Section 56 (B) of the Bombay 5 Police Act was made to the Sub-Divisional Officer, Gondia which is presently pending decision. There is no improvement in behaviour of the applicant-accused who bears absolute disregard for law and judicial process.” 9. Under the facts and circumstances, I am not at all convinced that on the ground of parity the applicant should be released on bail. The order passed by the learned Additional Sessions Judge issuing directions under section 438 of the Criminal Procedure Code in respect of one of the accused in the facts and circumstances of the case, cannot be the ground before this Court to release the applicant on bail. 10. The application is rejected. 11. Considering the fact that the applicant and other accused are under trials, the learned trial Judge shall make an endeavour to complete the trial as expeditiously as possible and in any case within a period of six months from the date of receipt of this order. 12. Compliance be reported to this Court. JUDGE kahale.