abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 4179 OF 2007 Suresh Kalyanji Bhagat .. Applicant V/s The State of Maharashtra & Anr. .. Respondents Mr.A.H.H. Ponda for the applicant. Mr.K.V. Saste, A.P.P. for the State. Mr.M. Desai for the original complainant. CORAM : D.G. KARNIK, J. DATE : 22ND JANUARY 2008 P.C. P.C. P.C. : 1. Heard the learned counsel for the applicant and the learned A.P.P. for the State. I have also permitted and heard the counsel for the informant (complainant). 2. The applicant has been arrested and is in custody since 9th December 2007. in connection with the crime registered with Thane Nagar Police Station under C.R.No.I-383/2007 for the offence punishable under sections 326 and 109 read with 34 of the Indian Penal Code. - 2 - 3. The case of the complainant as stated in the FIR dated 8th December 2007 is that the applicant is on enemical terms with him on account of some complaints lodged by the father of the complainant against the applicant before the Human Rights Commission. The exact nature of the complaints lodged by the father of the complainant against the applicant is however not on record. According to the complainant, on 2nd and 3rd December 2007 threatening calls were received by him on his mobile phone. On 8th December 2007, two unknown persons, one of whom was called as Babu by another, assaulted the complainant with a weapon (razor) and they ran away in a black coloured car. The registration number of the car was not noted by him. Before the assault, one of the assailants had threatened the complainant saying that since complaint was filed against "Sureshbhai" they would kill him and his father. The complainant therefore suspected that the assailants were hirelings of the present applicant whose first name is "Suresh". 4. It is not appropriate to discuss the merits of the complaint in greater detail. Suffice it to say that though threats were allegedly received by the complainant on mobile on 2nd and 3rd December 2007, no FIR was lodged by him. Further more, in the FIR the complainant has not disclosed the telephone number from - 3 - which he received the threatening calls on his mobile nor produced his mobile telephone nor disclosed his mobile number to enable police to trace the caller. The two assailants have not been identified and the complainant does not know them. It is only his conjecture that they must have been sent by the applicant and that inference is based on two circumstances, namely (i) the assailants used the name "Sureshbhai" and the first name of the applicant is also Suresh, and (ii) the complainant’s father had lodged two complaints against suresh in the Human Rights Commission and therefore Suresh had a motive for the assault. There is no other evidence showing involvement of the applicant in the alleged crime. 5. As stated earlier, the applicant was arrested on 9th December 2007 and is in custody till today. Out of the said period, the applicant was in police custody for 5 days and during this period also the police has not been able to get any material showing involvement of the applicant in the crime. Except the apprehension of the complainant that the assault was made on him at the instance of the applicant, there is no other material against him. 6. Learned counsel for the applicant referred to and relied upon a decision of the Supreme Court in - 4 - Bhagirathsinh Jadeja v. State of Gujarat, reported in Bhagirathsinh Jadeja v. State of Gujarat, reported in Bhagirathsinh Jadeja v. State of Gujarat, reported in AIR 1984 SC 372 AIR 1984 SC 372 AIR 1984 SC 372, wherein the Supreme Court has observed thus:- "5. ...... We fail to understand what the learned Judge of the High Court desires to convey when he says that once a prima facie case is established, it is necessary for the court to examine the nature and gravity of the circumstances in which the offence was committed. If there is no prima face case there is no question of considering other circumstances. But even where a prima facie case is established, the approach of the court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence. ..... 6. ..... And the trend today is towards granting bail because it is now well-settled by a catena of decisions of this Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a - 5 - situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence......" 6. Taking an overall view of the matter, in my view, the applicant is entitled to conditional bail. Hence, I pass the following order:- ORDER ORDER ORDER The applicant be released on bail in connection with the offence mentioned above on executing personal bond of Rs.30,000/- with two sureties of the like amount subject to the following conditions:- (a) The applicant shall cooperate with the investigation and attend the concerned police station once a week on every Monday between 6.00 and 7.00 p.m. for a period of 8 weeks and also on such other date and time as may be specifically summoned by the police. (b) The applicant shall not give any threats to the complainant, his father or relatives and shall not make any contact with them. The applicant also shall not make any inducement nor give any threats to any of the prosecution witnesses and shall not in any manner tamper - 6 - with the prosecution evidence. (D.G. KARNIK, J.)