Abdul Hameed Abdul Rashid vs The State Of Mha. Thr. Pso Ps ...
2022 Latest Caselaw 8978 Bom

Citation : 2022 Latest Caselaw 8978 Bom
Judgement Date : 8 September, 2022

Bombay High Court

Abdul Hameed Abdul Rashid vs The State Of Mha. Thr. Pso Ps ... on 8 September, 2022

Bench: V. G. Joshi

                                   1



        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  NAGPUR BENCH, NAGPUR.

         CRIMINAL APPLICATION (APL) NO. 1226 OF 2022
         Abdul Hameed Abdul Rashid, Aged
         about    42     years,  occ.   Lecturer,
         Mangrulpir, Tq. Dist. Washim, At present
         Chaprasipura, Camp Amravati, Tq. &
         Distt. Amravati.
                                                     ... APPLICANT

                              VERSUS
         State of Maharashtra, through Police
         Station Officer, Police Station,
         Mangrulpir, Distt. Washim

                                                    ... NON-APPLICANT.
_____________________________________________________________
        Shri R.L. Khapre, Senior Advocate a/b Shri Pushkar
       Deshpande, Advocate for the applicant.
       Mrs. M.H. Deshmukh, A.P.P. for non-applicant/State.
______________________________________________________________

                       CORAM           :   VINAY JOSHI, J.

                       DATED.          :   08.09.2022.

ORAL JUDGMENT :

Heard. ADMIT. Heard finally by consent of learned

Counsel appearing for both parties.

2. The Applicant has challenged the order dated

06.09.2022 passed by the Additional Sessions Judge whereby the

interim protection has been refused in an application filed by the

applicant for grant of pre-arreest bail in terms of Section 438 of

the Code of Criminal Procedure (the Code). The learned Senior

Counsel appearing for the applicant has heavily criticized the

order under challenge by stating that the Trial Court without

considering the factual aspect, alleged role and a plea of alibi

substantiated by documents has refused to exercise discretion in

granting interim protection.

3. The non-applicant/State resisted application by

contending that the Trial Court was right in refusing to grant

protection since the applicant's name was mentioned in the First

Information report and his overtact has been specified. Moreover,

it is reiterated that the plea of alibi cannot be considered while

deciding the pre-arrest bail application.

4. At the instance of report lodged by the informant-lady

Crime No.704 of 2022 was registered against in all 13 persons

including the applicant for the offences punishable under Sections

307, 436, 452, 143, 147, 148, 149, 294 and 506 of the Indian

Penal Code. In anticipation of arrest the applicant who is

numbered as accused no.3 in the First Information Report has

applied to the Court of sessions for grant of pre-arrest protection.

When the matter has came up before the Trial Court, it has

declined to grant interim protection, but postponed the matter on

12.09.2022 by issuing notice to the State. It is submitted that the

modus adopted by the Trial Court is against the law since in terms

of Section 438 of the Code, the Court either ought to have rejected

the application forthwith or issued an interim protection to the

applicant. It is apparent that the Trial Court has not rejected the

application at once but thought it fit to call the report of State by

declining interim protection.

5. The learned Senior Counsel by placing reliance on the

attendance certificate issued by the Government Polytechnic

College, Murtizapur agitated the plea of alibi. He placed reliance

on some decisions of different High Courts to contend that the

plea of alibi can be considered at the time of bail for which there

is no legal bar. Since the main application is pending, I refrain

myself from making any comments on the said aspect.

6. Perusal of First Information Report indicates that the

role ascribed to the applicant is of assaulting injured Shahebaz

Khan by fighter at his chest. The main allegation of assaulting by

means of knife at the chest are against the co-accused Javed. The

learned Senior Counsel has pointed out that at the same time, in

fact there was assault on the group of applicant for which the First

Information Report bearing Crime No.703 of 2022 was already

registered at 1.34 am of 03.09.2022. According to him, though the

incident in questioned took place on 02.09.2022 at 12.00 noon,

the existing First Information Report has been belatedly lodged on

03.09.2022 at 4.21 am i.e. after getting the knowledge of counter

First Information Report.

7. The limited challenge exists in this petition is about the

grant of interim protection. I am purposefully not dwelling upon

the facts in detail as well as the issue canvassed about

consideration of plea of alibi, for the reasons as stated above that

the main application is pending.

8. Having regard to the role ascribed to the applicant his

liberty can be protected since the matter is fixed after three day

i.e. on 12.09.2022 by the Trial Court for final hearing. In view of

that, the following order is passed :

(a) The application is allowed.

(b) The impugned order dated 06.09.2022 passed in Application No. 260 of 2022 is quashed and set aside.

(c) In the event of arrest, applicant/accused Abdul Hameed Abdul Rashid be released on interim bail in connection with the Crime No. 704 of 2022 registered with the Mangrulpir Police Station, District Washim for the offence punishable under Sections 307, 436, 452, 143, 147, 148, 149, 294 and 506 of the Indian Penal Code on his furnishing P.R. bond of Rs.15,000/- with one surety in the like amount.

(d) The applicant shall attend the concern Police Station on every alternate day commencing from tomorrow i.e. from 09.09.2022 in between 10.00 am to 12.00 noon till further orders.