1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No.1267/2010 ( Siraj Mohd. @ Siraj Ahmed S/o Abdul Bashir ..Vs.. State of Maharashtra, through PSO, PS. Sitabuldi, Nagpur & others ) Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. A.S. Mardikar, Adv. for applicant. Mr. V.P. Thakre, A.P.P. for respondent no.1/State. Mr. S.Z. Qazi, Adv. for respondent nos.2 and 3. CORAM : M.N. GILANI, J. DATED : 22.6.2011. 1. This is an application under section 439(2) of the Criminal Procedure Code for cancelling the bail granted to the non-applicants 2 and 3 who are involved in Crime No.164/2010 under sections 143, 147, 148, 307 of the Indian Penal Code. 2. On the F.I.R lodged by the applicant on 14/5/2010, the aforesaid offence came to be registered. It is alleged that on 14/5/2010 when the applicant was proceeding to his house after attending the Court case and when he reached near the National Fire Service College, he was attacked by the non-applicants 2 and 3 and others. One Abid Ali had thrown chilly powder in the eyes of the applicant. The applicant no.2 (original accused no.2) dealt blow of sword on the head of the applicant. The applicant ran for shelter. The applicant no.3 (original accused no.4) had again thrown 2 chilly powder in his eyes. All these three accused persons and others ran behind him. The applicant sustained four lacerated wounds, three were on the head and one was on the finger. He was admitted as indoor patient on the same day i.e. on 14/5/2010 and discharged on 20/5/2010 within six days from his admission. After investigation the chargesheet was filed. Learned counsel for the applicant informed, on instructions, that the charges have already been framed and within a short time the trial will begin. 3. Learned counsel for the applicant invited my attention to the order dated 17/6/2010 whereby learned Ad-hoc Additional Sessions Judge, Nagpur rejected the application of non-applicant no.2 by observing that there is a direct evidence against the applicant and that the complainant had sustained several injuries. Learned Additional Sessions Judge further observed that offence is of serious nature and investigation is in progress. Thereafter he concluded that in such circumstances it would not be just and proper to enlarge the applicant (non-applicant no.2 herein) on bail. 4. In the second bail application moved by non-applicants 2 and 3 which was decided on 15/7/2010 learned Additional Sessions Judge, Nagpur observed that “say given by the prosecution indicates that the investigation against the applicants is practically completed. Except the name of the applicants figured in the FIR nothing has come on record to connect them with this crime. The applicants are in custody from last two months and they are only earning member of their family. In such circumstances, in my opinion it will not just and proper to keep the applicants behind bar and it is a 3 fit case to enlarge the applicants behind bar and it is a fit case to enlarge the applicants on bail by putting some conditions.” 5. Learned counsel for the applicant contended that there was no justification on the part of learned Additional Sessions Judge in changing the stand just within a month and that too by observing that the names of non-applicants only figure in the F.I.R. which, according to him, is de-hors the record. It is his contention that in F.I.R. the complainant has categorically stated that the non-applicant no.2 had dealt blow of axe on his head and non-applicant no.3 had thrown chilly powder in his eyes. Then others attacked him with weapons and he was mercilessly beaten by members of an unlawful assembly, as such it is insignificant that what role each accused played. In an unlawful assembly each is vicariously responsible for the act done by the other member of an unlawful assembly. He, therefore, contended that learned Additional Sessions Judge was not within his jurisdiction to enlarge the non-applicants on bail. 6. The considerations which should weigh with the Court while enlarging the accused on bail are different from the considerations which should weigh with the Court while ordering cancellation of bail. Only when a person to whom bail has been granted either tries to interfere with the course of justice or attempts to tamper with evidence or witnesses or indulges in similar activities which would hamper smooth investigation or trial, bail granted can be cancelled. 4 7. Although the complainant was brutally assaulted he could survive and therefore, ultimately, the offence with which the accused have been charged is under section 307 of the Indian Penal Code. The complainant was discharged within six days of his admission to the hospital. The complainant is also facing the case under section 302 of the Indian Penal Code for committing murder of brother of non-applicant no.2. This seems to be the genesis of the incident. The other relevant factor is the bail order, the correctness of which is being assailed before this Court, was passed on 15/7/2010 and since then the non-applicants are enjoying the liberty of bail and have been attending the trial. Thus in the facts and circumstances of the case, it would not be justified to cancel the order of bail granted in favour of the non-applicants 2 and 3 and take them in custody. Application is rejected. JUDGE Tambaskar.