(1) CRI.APP. 4226.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 4226 OF 2010 1. Shakilkhan Bashirkhan, Age : 33 years, Occu.: Driver, 2. Shaikh Salim Shaikh Naeem Age : 28 years, Occu.: Labourer, 3. Umarkhan Bashirkhan, Age : 25 years, Occu.: Business All R/o Pinjarwada, Pachora, Tq. Pachora, Dist. Jalgaon .. Applicants VERSUS The State of Maharashtra .. Respondent ... Mr. H.S. Bali, Advocate for the Applicants Mr. B.J. Sonawane, APP for the respondent-State ... CORAM : V.R. KINGAONKAR, J. DATED : 19TH OCTOBER, 2010 ORAL ORDER:- 1. The applicants have filed Application under section 438 of the Code of Criminal Procedure. 2. Allegedly on 6.5.2010 at about 17.30 hours injured informant Ejaz Abdul Sattar was assaulted in Shivaji Chowk, Pachora by Sherifkhan and others. The main accused Sherifkhan assaulted him by means of an (2) CRI.APP. 4226.2010 iron rod (tommy) whereas Bashirkhan caught his hands and dealt a blow of stone on his head. The applicant no.2 Shaikh Salim dealt blow of bicycle chain on his back and others also joined the assault. 3. The learned Advocate for the applicants would submit that while passing the order on Criminal Application no. 936 of 2010 the learned Sessions Judge has observed that there was fight between the two groups and injuries on the person of informant were not likely to endanger his life. That order is rendered in context of regular Bail Application after considering the fact that the arrested accused were in custody since 6.9.2010. The present applicants however have eluded arrest. The bicycle chain is yet to be recovered from the applicant no.2. Their involvement in the alleged assault is prima facie clear from the recitals of the FIR. At such a premature stage, it is difficult to determine the particular criminal liability. It is important to notice that group of the applicants and other three main accused had obstructed the informant while he was proceeding towards Police Station. The informant (3) CRI.APP. 4226.2010 was on motorcycle which was stopped in the Shivaji Chowk and he was assaulted. Thus, there is prima facie evidence to show that there was common intention of the group of persons including the applicants to obstruct the informant and to assault him at the relevant time. 4. In such a situation, the discretionary relief available under section 438 of the Code of Criminal Procedure cannot be granted to the applicants. The Application is therefore dismissed. Sd/- [V.R. KINGAONKAR, J.] arp