1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION NO. 65 /2011 (Syed Aslam Syed Usman vs. State of Maharashtra ) .................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ..................................................................................................................................................................... CORAM : A.P.BHANGALE, J. DATED : 15th April, 2011. Heard Mr. R M Daga, learned counsel for the applicant and Mr J.B. Jaiswal, learned Additional Public Prosecutor for respondent-State. By this application, the applicant prayed for grant of bail in connection with Crime No. 126 /2009 reported at Achalpur Police Station, Dist. Amravati for offence punishable under sections 147, 148, 302, 323 read with section 149 of the Indian Penal Code. It is contended on behalf of the applicant that Sessions Trial No. 53/2010 is pending before the Sessions Court, Achalpur. The incident had occurred on 1.12.2009 at about 8.00 p.m. in respect of which a counter complaint was also lodged as Crime No.127/2009 under section 324 IPC etc. On merits, it is contended that the first informant in Crime No. 126/2009 reported the incident to Achalpur Police Station alleging that certain persons had thrown offal in front of the house of first informant, which was objected to by Sk. Biram, father of the first informant Sk. Usman. On that pretext, the present applicant Syed Asalm objected Sk. Biram and a scuffle had 2 taken place between the present applicant and Sk. Biram. At that time, some more persons had gathered at the spot. The younger brother of the first informant by name Sk.Irfan, who was awakened, went on to intervene in the quarrel. At that time, it is alleged that Syed Aslam and Syed Usman had stabbed Sk. Irfan in the abdomen and he was injured and fell on the ground. It is also alleged that the first informant had tried to save his brother and in that frantic attempt also received minor injuries. According to learned Advocate for the applicant, the applicant himself was injured and had lodged a complaint bearing FIR No. 127/2009 at the same police Station. He was referred to and remained as an indoor patient in the hospital till 16.12.2009 before he was shown arrested in this present case. According to learned Advocate for the applicant the deceased had received injuries as a result of his intervention and he had also assaulted the applicant. It appears that the applicant had received incise wounds 5” x 2” x ½ inch on left forearm which may have been caused by a sharp edged weapon at the time of the incident. In the FIR lodged by the present applicant in respect of the same incident ( FIR No. 127/2009 reported at Achalpur Police Station), it is alleged that on the day of the incident a bag containing waste of mutton (offal) was lying near the wall which was in a torn condition. When applicant had questioned about it to one Bablu, he had hurled vulgar vituperative and unprintable expletives in the name of his mother. He went back to his house and brought one sharp edged weapon (Chhuri). His brother Usman, Bablu, Irfan etc, had assembled there and were saying that the bag was placed by one Javed at that spot and when Javed came he was assaulted. Since Javed was brother of the 3 applicant, he had tried to intervene when Bablu had assaulted him. Thus, in respect of the incident there appears another version from the view point of applicant side, which was recorded as a counter- complaint. It is contended on behalf of the applicant that a counter case in respect of the same incident which was initiated by present applicant and the fact that the applicant was inside the Hospital for about 16 days and the other co- accused are granted benefit of bail. Reliance is placed upon the ruling Bashisht Singh and another vs. State of Bihar reported in AIR 2002 SC 487 in order to submit that since the counter case is also filed in respect of the same incident by the present applicant he can be released on bail during the trial period subject to certain conditions. It appears that in the case cited supra in identical fact-situation where counter case was also filed, benefit of conditional bail was granted in favour of the accused. Learned APP objected grant of bail on the ground that accusations are serious and the accused who were granted benefit of bail are not attending the trial which has resulted in delay in trial. According to learned APP there is possibility that the applicant may tamper with the evidence of the eye witnesses and, therefore, learned Addl. Sessions Judge Achalpur, had rejected bail during plea by the present applicant considering the seriousness of the accused. After hearing submissions of the parties, it does appear that in the present case also, the applicant had lodged a complaint which gave rise to Cr. No.127/2009 under section 4 324 IPC etc., while in respect of the case against the present applicant Cr.No. 126/2009 was registered at the same Police Station. Considering the fact that the applicant himself was injured and had to remain as indoor patient in the Achalpur before he was shown arrested on 16.12.2009, in my opinion, he is entitled for conditional bail considering the ruling cited supra. Regarding apprehension expressed on behalf of the prosecution that applicant may tamper with the evidence or may avoid the trial, stringent conditions would be imposed against him so as to ensure his presence at the trial and to abide by the conditions of bail. According to learned APP other -co accused are avoiding trial. If that is so, the prosecution can move for breach of bail conditions in respect of other accused who remained absent on the dates fixed for proceedings in the trial that cannot be a ground to deny benefit of bail in favour of the present applicant particularly considering that a counter case was initiated by him and he himself was an injured person undergoing treatment for about 16 days in the Hospital. Therefore, notwithstanding the seriousness of the accusations and in the facts and circumstances of the case, I am inclined to grant conditional bail as follows :- Order The applicant shall be released on bail in respect of Crime No. 126 /2009 reported at Achalpur Police Station Dist.Amravati, upon executing a PR bond in the sum of Rs. 50,000 /- with one or more surety in the equal amount; provided further that he shall attend the Investigating Officer as and when required. He shall cooperate with the Investigating Officer and shall inform his permanent address 5 with Telephone/Cell Number, if any, to the I.O. concerned as well as Presiding Officer of the Court below and shall not misuse the liberty in any manner. Application is disposed of. JUDGE sahare