1 1 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1285 OF 2009 Sameer Safarali Virani .. Applicant. Vs. State of Maharashtra .. Respondent. Mr.Shirish Gupte, Sr.Counsel i/b Mr.Ganesh Gole for the applicant. Mrs.S.D.Shinde A.P.P. for the State. Mr.S.S.Gade for the original complainant. CORAM : D.B.BHOSALE, J. CORAM : D.B.BHOSALE, J. CORAM : D.B.BHOSALE, J. DATED : 17TH APRIL, 2009. DATED : 17TH APRIL, 2009. DATED : 17TH APRIL, 2009. P.C.: . Heard learned counsel for the parties and learned A.P.P. for the State. 2. The applicant is seeking anticipatory bail in C.R.No.I-427 of 2008 of Mumbra police station. The said crime has been registered against the applicant and others for having allegedly committed an offence punishable under sections 307, 120(B), 143, 147, 148, 149 of IPC and under section 37, 135 of Bombay Police Act, 1951. 3. It is the prosecution case that the complainant, Kamar Ashraf Khan and the present applicant were in the business of development in partnership. Six months prior to the alleged incident, they had purchased a plot of land for Rs.80 lakhs, for which, it is alleged, the applicant did not contribute and, therefore, the complainant and Kamar 2 2 2 Khan had removed the applicant from the said partnership, and on that count the applicant had grudge against the complainant. It is alleged that on 31.10.2008 at 1.45 am the complainant with his friend Sayyad, after watching the movie at Thane, the complainant came home, and after parking his car, while he was climbing the staircase he saw the applicant, one Nisar Khan and one unknown person. It is alleged that Nisar Khan fired one shot at the complainant from a Gavathi Katta (country made revolver). It is further alleged that the said bullet brushed the complainant’s shoulder. Thereafter he fired second shot, which was missed, and therefore, the applicant allegedly took the said Katta from Nisar and fired 2 shots at the complainant. It is alleged that one bullet stuck in the waist belt of the complainant and the second bullet missed. Mr.Gupte, learned senior counsel for the applicant invited my attention to several documents on record and more particularly statements of Laxman Bhadek, Reshma Hanerkar and Sayyed Ali Sayyed Anwar to contend that the case of the prosecution is false and submitted that the present applicant was not present at the scene of offence, and the incident did not occur in the manner in which the complainant has stated in the FIR. According to the complainant the incident occurred at about 2.30 am. Mr.Gupte further submitted that at 2.35 am one Reshma, and at 2.39 am and 2.45 am 3 3 3 one Sayyad Ali made calls on the complainant’s mobile, and to them both, the applicant did not disclose about the alleged incident of living. Insofar as the statement of Laxman Bhadek is concerned, he submitted that he was a watchman of the building where the applicant has residential house, and according to this witness, the applicant was at his residence between 12 in the night and 4 am on 31.10.2008. Thus, according to Mr.Gupte, the applicant was not present at the scene of offence which occurred sometime around 2.30 am. It would not be possible at this stage to examine the defence of alibi for more than one reasons. Firstly, it is quite possible that Reshma and Sayyad Ali, might have made calls before the alleged incident, and secondly, the statement of the applicant’s watchman was recorded after 3-4 days of the incident. It is always open to the applicant to raise the defence of alibi during the course of trial. Moreover, the complainant in the FIR has not stated that the incident occurred exactly at 2.30 am. However, I would not like to express any positive opinion on this aspect at this stage. The fact remains, the complainant sustained injuries, as described by the doctor at Wockhardt Hospital, which support the prosecution case. In the circumstances I am not inclined to grant this application for anticipatory bail. The application is accordingly rejected. It is open to the applicant to 4 4 4 surrender and then apply for regular bail. If any such application for regular bail is filed by the applicant after his arrest, the same may be considered by the Sessions Court on merits in accordance with law and without being influenced by the observations made in this order. 4. At this stage Mr.Gupte, learned senior counsel on behalf of the applicant seeks a week’s time to surrender. Mrs.Shinde, learned A.P.P. has no objection for granting the time as prayed. Hence, the applicant shall not be arrested till 24th April, 2009 in connection with C.R.No.I-427 of 2008 of Mumbra police station, District Thane. (D.B.Bhosale, J.) (D.B.Bhosale, J.) (D.B.Bhosale, J.)