Liyakat Shahid Bagwan vs The State Of Maharashtra And ...
2021 Latest Caselaw 975 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                      923 BAIL APPLICATION NO.1575 OF 2020
                               WITH APPLN/87/2021


             SHAHRUKH SHAIKH S/O KALIM PATVE AND OTHERS
                                        VERSUS
                             THE STATE OF MAHARASHTRA
                                            ...
                          Mr. S.S. Kazi, Advocate for applicants
                           Mr. N.T. Bhagat, APP for respondent
                       Mr. G.R. Syed, Advocate for assist to APP
                                            ...

                                     CORAM :      SMT. VIBHA KANKANWADI, J.
                                     DATE :       15th JANUARY, 2021.


ORDER :

1 Criminal Application No.87 of 2021 moved for assist to APP is

allowed and disposed of.

2 Applicants have been arrested, in connection with Crime

No.807/2020 dated 13.09.2020 registered with Nandurbar City Police

Station, Dist. Nandurbar, for the offence punishable under Section 302, 307,

324, 323, 427, 452, 504, 506, 143, 147, 148, 149 of the Indian Penal Code

and under Section 37(1)(3) read with Section 135 of the Maharashtra Police

Act. Hence, they have filed the present application under Section 439 of the

2 BA_1575_2020

Code of Criminal Procedure, 1973.

3 Heard learned Advocate Mr. S.S. Kazi for applicants and learned

APP Mr. N.T. Bhagat for respondent/State.

4 It has been vehemently submitted on behalf of the applicants

that even if the contents of the First Information Report are taken as it is; yet,

it can be seen that the applicants are not responsible for death of one Harun

Yusuf Qureshi. As per the contents of the FIR, one Nazim Kalim Patve had

pelted stone on the chest of Harun, as a result of which, Harun had become

unconscious at the spot. Thereafter, he was shifted to hospital. However,

during treatment he expired. Said Nazim is not before this Court in this

application. As regards the present applicants are concerned, the informant

contend that all the accused persons had attacked his house when they were

armed with sticks, iron rod and pipe. At one place it is stated that some of

the accused persons cumulatively assaulted with sticks to injured persons

including the informant. Others had manhandled the injured and even

deceased Harun. Applicant No.2 Naeem had assaulted one Shahdab with

iron pipe. All the accused persons had destroyed two vehicles, abused and

threatened the informant and witnesses. Now, the investigation is over and

charge sheet has been filed, therefore, the physical custody of the present

applicants is not required for the purpose of investigation. The Post Mortem

3 BA_1575_2020

Report of the deceased would show the cause of death as due to Blunt chest

trauma (unnatural). Even if it is taken that Harun's death is homicidal in

nature, yet, even as per the contents of the FIR and the statements of the

witnesses, it was due to the alleged act of throwing stone on the chest of

deceased by accused Nazim. As regards other injured persons are concerned,

the injury certificates show that they have received only simple injuries, and

therefore, the further physical custody of the present applicants is not

required. They are ready to abide by the terms of the bail.

5 Per contra, the learned APP, well assisted by learned Advocate

Mr. G.R. Syed for the informant, strongly opposed the application and

submitted that the overt act on the part of the present applicants can be seen;

yet, it is said that the applicants had attacked informant and his family

members at about 10.30 p.m. by entering into the house of the informant.

Weapons used in the commission of the crime are the sticks, iron rod and iron

pipe. When all of them had come together, it can be said that they had

formed unlawful assembly to commit crime and in furtherance of their

common object they had entered the house of the informant, assaulted the

informant and others including the deceased. The applicants cannot get

away by saying that the death of Harun is due to the act of Nazim.

6              At the outset, it is to be noted that even as per the contents of




                                         4                                     BA_1575_2020

the FIR it appears that an incident had earlier taken place at about 8.00 p.m.

on 12.09.2020, on account of flying kites. But then the informant has stated

that the other side has gone to Police Station to lodge report and he had also

followed them. There was mediation at the Police Station and the dispute

was settled. Then he says that at about 10.30 p.m. in all 12 persons

including the present applicants came to his house, armed with sticks, iron

pipes and iron rods, pelted stones on his house and by entering into the

house the applicants and others had started assaulting informant, his mother,

maternal uncle and aunt. Thereafter, the informant was dragged outside the

house and then he was assaulted with sticks. His uncle was assaulted by

some of the present applicants and then the accused Nazim lifted stone lying

by the side and hit it on the chest of Harun, as a result of which Harun

became unconscious on the spot. Thereafter, applicant No.2 Naeem assaulted

Shahdab Qureshi with iron pipe. Two vehicles were damaged. Accused

persons had abused and threatened the informant and others. Other persons

from the same vicinity came and intervened. Thereafter, accused persons left

the spot. Harun was shifted to hospital, but then succumbed to his injuries

while undergoing treatment.

7 It will not be out of place to mention here that from the side of

the accused it appears that complaint has been lodged against the informant

5 BA_1575_2020

and his relatives. It may not be permissible, at this stage, to go into the

contents of that proceedings. However, only a fact is required to be noted

that in that FIR also it is stated that the informant and his relatives had

assaulted the accused persons. The reason, as to why two groups fought with

each other, appears to be trifle in nature i.e. on the point of flying kites. Now,

as regards death of Harun is concerned, it is to be noted that even as per the

contents of the FIR as well as statements of the witnesses it was due to the

throwing of stone by Nazim, who is not before this Court. As regards role

attributed to the present applicants are concerned, it is either assault by iron

rod or sticks or by means of manhandling, but at the same time, we are

required to see that the medical certificates of the informant and other

injured witnesses are concerned, all of them are stated to have received

simple injuries, and it has not been pinpointed by the learned APP as to on

the basis of which statement and injury certificate it can be said that

ingredients of Section 307 of the Indian Penal Code are also attracted. The

documents on record do not show application of Section 307 of the Indian

Penal Code against the present applicants. Thereafter, the remaining sections

are concerned, sufficient opportunity has already been given to the

Investigating Officer to make investigation and accordingly after investigation

was over charge sheet has been filed. There is no possibility of applicants

getting absconding, and therefore, as per the parameters laid down in various

6 BA_1575_2020

catena of Judgments of the Hon'ble Supreme Court as well as this Court, the

application deserves to be allowed with stringent conditions. Hence,

following order.

                                      ORDER


1              Application stands allowed.


2              Applicants viz. 1) Shahrukh Shaikh s/o Kalim Patve, 2) Naeem

Shaikh s/o Kalim Patve, 3) Sameer Shaikh s/o Kalim Patve, 4) Altamash

Shaikh s/o Kalim Patve, 5) Shaikh Salim Abul Hasan @ Muna Isak Patve, 6)

Mohsin Kalim Patve and 7) Kalim Patve @ Shaikh Kalim s/o Shaikh Kasam

Patve, who have been arrested, in connection with Crime No.807/2020 dated

13.09.2020 registered with Nandurbar City Police Station, Dist. Nandurbar,

for the offence punishable under Section 302, 307, 324, 323, 427, 452, 504,

506, 143, 147, 148, 149 of the Indian Penal Code and under Section 37(1)

(3) read with Section 135 of the Maharashtra Police Act, be released on P.R.

of Rs.25,000/- (Rupees Twenty Five Thousand only) each with one solvent

surety in the like amount.

3 The applicants shall not tamper with the evidence of the

prosecution, in any manner.

4              They shall not indulge in any criminal activity.




                                             7                                     BA_1575_2020



5                If they commit any breach of above terms of bail, the prosecution

is at liberty to move the Trial Court under Section 439(2) of the Code of

Criminal Procedure for cancellation of bail.

6 They shall not enter the jurisdiction of Nandurbar till the

conclusion of trial. They should reside elsewhere, and before submission of

bail papers, the applicants should give complete address of their proposed

residence with their mobile number. So also they should comply with the

requirements under paragraph Nos.12 (1) to (6) of Chapter I of Criminal

Manual, (whichever are applicable).

7                Bail before Trial Court.




                                            ( Smt. Vibha Kankanwadi, J. )



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