1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO.1468 OF 2010 Prashant s/o Shivaji Jadhav ... APPLICANT VERSUS The State of Maharashtra ... RESPONDENT ..... Shri Sandeep S. Deshmukh, Advocate for the applicant Mrs. Vaishali More More, A.P.P. for respondent ..... CORAM : SHRIHARI P. DAVARE, J. DATED : 29h April, 2010 PER COURT: 1. Heard Mrs. Sandeep Deshmukh, learned counsel for the applicant as well as heard Mrs. Vaishali More, learned A.P.P. for the respondent. 2. This is an application preferred by the applicant, seeking anticipatory bail, apprehending his arrest under C.R. No.I-52/2010, registered at Newasa Police Station, District Ahmednagar for the offences punishable under Sections 302, 323, 504, 506, 143, 147 and 148 of the Indian Penal Code and Section 37(1)(3) and 135 of the Bombay Police Act. 2 3. It appears that, the offence has been registered on the complaint lodged by the complainant namely Babu Suresh Deshmane on 28/2/2010, alleging that the complainant and deceased Dhanraj Sapkal were conducting Hotel Shivleela at Kukana since last six months, which was owned by accused Shivaji Deshmukh. It is also alleged that, on 27.2.2010, at about 1.30 p.m., when the complainant and deceased were at Hotel, sons of Shivaji Deshmukh namely Jitendra and Vilas along with his friend namely Dharmendra and one unknown person came to the said hotel Shivleela, they consumed liquor and also ate dinner. The maternal uncle of the complainant was on the counter of the said hotel, who demanded the bill, but the co-accused persons refused to pay the same. The maternal uncle also stated that the previous bill was pending and insisted for the payment of the amount of the said bill. However, it is alleged that, the accused persons got angry and stated that they were the owners of the hotel and still bill was being demanded from them. The complainant and his maternal uncle tried to convince the accused persons, but they did not pay any heed and started breaking the articles in the hotel. Meanwhile, Jitendra called his father and took iron Kavach and inflicted the same on the head, chest and back of victim Dhanraj and thereby caused injuries to him. It is further alleged that, the complainant intervened, but co-accused Vilas took the said Kavach from Jitendra and inflicted blow thereof on the face, chest and nose 3 of the complainant. Moreover, the maternal uncle sustained heavy injuries and bleeding and, therefore, he became unconscious. Thereafter, accused persons fled away from the spot. 4. On the aforesaid background, the learned counsel for the applicant canvassed that the name of the applicant has not been reflected in the complaint lodged on 28.2.2010 as well as even in subsequent remand yadi dated 1.3.2010, 2.3.2010 and 5.3.2010, his name has not been disclosed, but it is stated therein that one unknown person along with the co-accused persons. It is submitted by learned counsel for the applicant that, his name was reflected first time in the remand yadi dated 18.3.2010 and prosecution has not given any explanation how name of applicant has been surfaced therein. It is also submitted that, co-accused Shivaji has been already released on bail and the recovery has been made from the other co-accused persons No.1 to 4. it is canvassed that, there is every possibility of false implication of the applicant in the alleged offence and, therefore, submitted that the present application be allowed, confirming the interim protection granted to the applicant. 5. The learned A.P.P. opposed the present application vehemently and submitted that, the supplementary statement of the complainant was recorded on 7.3.2010, wherein the name of the applicant was disclosed and role has been attributed to him therein 4 that he assaulted to the victim by leg kicks and fist blows. It is also canvassed that, the test identification parade of the applicant is yet to be conducted and, therefore, present application deserves to be rejected. it is also submitted that, investigation is under progress and same has not been completed and, therefore, present application bears no substance and urged that, it be rejected. It is also submitted that, blood sample of the applicant is required to be taken for the further progress in the investigation and, therefore also, his custody is necessary. 6. On perusal of investigation, papers and considering the rival submissions advanced by both the learned respective counsel for the parties, as submitted by learned counsel for the applicant, the name of the applicant has not been reflected in the complaint dated 28.2.2010 and also not reflected in the subsequent remand yadi dated 1.3.2010, 2.3.2010 and 5.3.2010 and his name was surfaced first time in the remand yadi on 18.3.2010 and the said remand yadi does not disclose how name of the applicant was surfaced therein. Apart from that, the supplementary statement dated 7.3.2010 of the complainant discloses the name of the applicant for the first time as unknown person who was present at the time of occurrence of the incident. Considering the said position and delay in recording the supplementary statement of the complainant, i.e. about 10 days, apparently the possibility of false implication of the applicant in the place of unknown person at the 5 time of occurrence of the incident cannot be ruled out. Moreover, the recovery has been made from the other co-accused persons i.e. accused Nos.1 to 4 and as contended by learned counsel for the applicant, the co-accused Shivaji has been already released on bail. As regards the contention of the learned A.P.P. that test identification parade of the applicant is yet to be conducted, it is necessary to note that, for conducting test identification parade, custody of the applicant is not necessary and necessary directions can be given to the applicant to attend the concerned police station and to cooperate in the investigation, if the present application is allowed. Besides that, the alleged role attributed to the said unknown person in the occurrence of the incident is assault by leg kicks and fist blows and allegedly the applicant has been named as the said unknown person in the supplementary statement of the complainant and the said role attributed to the applicant appears to be of lesser degree, compared to other co-accused persons. 7. In the circumstances, considering the accusations made against the applicant, I am of the view that, present application deserves to be allowed, confirming the interim protection granted to the applicant. 8. In the result, present application is allowed and interim protection granted to the applicant by order dated 15.4.2010 is confirmed and it is directed that, in the event of arrest of the 6 applicant under C.R. No.I-52/2010, registered at Newasa Police Station, District Ahmednagar, the applicant be released on bail on furnishing surety in the sum of Rs.15,000/- and on executing P.R. bond in the like amount, on the following conditions : (i) The applicant shall attend the concerned police station as and when required, on written intimation, till filing of the charge sheet and shall cooperate in the investigation. (ii) The applicant shall not tamper with the evidence and/or influence upon the witnesses directly/ indirectly. 9. Needless to say that above anticipatory bail granted to the applicant is till filing of the charge sheet. It is further made clear that, the above observations are prima facie in nature and shall not come in way of any Court while deciding the matter on merits. (SHRIHARI P. DAVARE) JUDGE fmp/cri146810