1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2283/2009 1) Babu s/o Shankar Bhalerao and others. - PETITIONERS VERSUS The State of Maharashtra. - RESPONDENT ***** Mr.N.N.Shinde, Advocate for Petitioners; Mr.V.D.Godbharale, APP for State. ----- CORAM : K.U.CHANDIWAL, J. DATE : 8TH October,2009. PER COURT : 1) Heard learned Counsel for the petitioners and learned APP extensively. 2) In an accident dated 2nd June, 2009, the complainant alleged that the accused/petitioners restrained him when he was proceeding on a motor- cycle, by use of an auto rickshaw bearing No.MH-38/A-116. The petitioners herein after alighting from the auto rickshaw encircled the complainant, caught hold with neck, abused in filthy language and he was beaten by fists, slaps. His gold chain, weighing one Tola worth Rs.14,000/- was snatched including cash of Rs. 2 810/-, giving rise to crime, vide C.R.No.61/2009 registered at Hatta Police Station, for the offence under Section 395 of Indian Penal Code, the accused/petitioners urge for prearest bail. 3) Mr.Shinde, while elaborately dealing with the submissions, did not spare the earlier A.P.P., representing the State, making personal allegations against him. He was blunt to the Investigator Mr.Shaikh about his political linkage or about his joining hands with the rival group or implicating innocent persons in serious offence for personal score. He also flashed newspaper item of the agitation raised by Bar Association against the said officer. 4) Learned APP has contended that this Court should not entertain all such allegations, hurled either against the A.P.P. or against the Police Officer Mr.Shaikh, who is not a party before this court and I find substance in such submission. 5) It is naturally expected to have some refrain at some level while castigating, at least a brother in the profession. 6) Then comes the incident. The police papers indicate, there are two eye-witnesses, 3 namely, Gajanan and Pradeep for the incident. Injury Certificate is annexed with the papers, showing that the complainant – Pradip has suffered four injuries, though recorded as simple, but the user of the weapon is hard and blunt, issued by Primary Health Centre, Hatta, Tq. Tq. Basmath, District Hingoli dated 2nd June, 2009, having examined him at 3.10 p.m. 7) There was a counter to the Crime No. 61/2009 by Babu and others, taking recourse to the provisions of Section 3(1)(x) of the Scheduled Castes, Scheduled Tribes (Prevention of Atrocities) Act, 1989, in which the respective applications of those of the accused were rejected being Criminal Application Nos. 2115/2009 and 2466/2009. In fact, these details are immaterial for the present order, however, since repeated reference thereof is made, it is reproduced in condensed form. 8) The fact remains some incident has taken place on 2nd June, 2009 in which the present accused/applicants with their associates have played pivotal role. The snatched gold chain locket is to be seized. That apart, recovery of cash is to be made. I need not emphasize that the criminal record of the applicants/accused – Babu or Pradip, though may be a habitual offender 4 throughout, however, the fact remains in the present case, Crime No.61/2009, there is primary evidence against the accused/petitioners and this follows that discretion in terms of Section 438 of Cr.P.C. is not desirable, nor legally enforceable to be coined. 9) Counsel placed reliance to the Judgment of the Apex Court in the matter of Gurubaksh Singh Sibbia Vs. State of Punjab, reported in 1980 Cri.L.J. 1125; judgment in the matter of Salauddin Abdulsamad Shaikh Vs. State of Maharashtra, reported in 1996 AIR SCW 531 ; and to the judgment in the matter of Savitri Agarwal and Ors. Vs. State of Maharashtra and Anr. reported in 2009 AIR SCW 5092. 10) The matter of Savitri Agarwal was relating to cancellation of bail granted in terms of Section 438 cr.P.C. and effect of 439 of Cr.P.C. The observations of the Apex Court in last paragraph of the said judgment are material which has indeed no relevance to the present case and eventualities therein. In the matter of Salauddin Abdulsamad Shaikh Vs. State of Maharashtra (cited supra) parameters of grant of anticipatory bail and fixing the outer limit was the root cause and the formulation was effected by the Hon’ble 5 Lordships. In the matter of Gurubaksh Singh Sibbia Vs. State of Punjab (cited supra), the powers of the High Court in relation to exercise of powers in terms of Section 438 Cr.P.C. were elaborately discussed. A distinction between grant of bail and pre-arrest bail was highlighted. 11) With respect, I endorse that these judgments are not applicable to the facts of the present case. 12) In the end, I find there being a prima facie evidence against the accused/petitioners and the recovery, as indicated above, is to be effected, custodial interrogation only will resolve the controversy. Consequently, Criminal Application rejected. Interim protection vacated. The observations are prima facie in nature. 13) Time to surrender extended till 25th October, 2009. ( K.U.CHANDIWAL ) JUDGE bdv/cran2283.09