Madhya Pradesh High Court
Nawab Khan vs The State Of Madhya Pradesh on 21 January, 2022
Author: Anil Verma
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
M.Cr.C. No.64143/2021
(Nawab Khan Vs. State of M.P.)
-1-
Indore, dated 21/01/2022
Shri Vikas Rathi, learned counsel for the applicant.
Shri Kapil Mahant, learned panel lawyer for the
respondent/State.
This is third application under Section 439 of Cr.P.C. filed on
behalf of the applicant for grant of bail. The applicant is implicated in
connection with Crime No.181/2021 registered at Police Station-
Satwas, Distt. Dewas (MP) for offence punishable under Section 294,
323, 324, 307 and 506 and 34 of the Indian Penal Code, 1860. The
applicant is in custody since 14/7/2021.
02. As per prosecution story, in the intervening night of 6-
07/05/2021, when Mamur Kha, uncle of the complainant, was going
towards his house, then the present applicant along with other co-
accused armed with deadly weapons like sword, wooden stick and
stone went in front of house of the complainant Munir Ahmad and with
their common intention assaulted the complainant Munir Khan, Nawab
Mahboob and Farookh. When Imran came to rescue the complainant,
he was also assaulted by them. Victim persons sustained simple
injuries. Accused persons also threatened to kill them. Upon lodging
report of the incident at police station - Satwas, aforesaid offences
were registered and they were also arrested.
03. Learned counsel for the applicant contended that applicant is in
custody since 14.07.2021. He is old man aged about 60 years and sole
bread earner of his family. His family members are facing financial
crisis and investigation is over. Prosecution has examined 8 witnesses
before the trial court and all the material witnesses have turned hostile
and not supported the prosecution case. He further submits that the co-
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
M.Cr.C. No.64143/2021
(Nawab Khan Vs. State of M.P.)
accused Noor Khan, Amir Khan and Mehboob have been released on
bail by this Court vide order dated 23.07.2021, 06.08.2021 and
09.09.2021 passed in M.Cr.C. Nos.35344/21, 38118/21 and 42793/21,
hence, on the ground of parity, the present applicant also deserves to be
enlarged on bail.
04. Learned panel lawyer opposes the bail application and prays for
its rejection by submitting that the applicant is habitual offender. There
are 33 criminal cases already registered against him. He was also
externed from the district by the order of District Magistrate and his
earlier two bail applications were rejected on merits by this Court vide
order dated 26.08.2021 passed in M.Cr.C. No.42179/2021 and the
order dated 09.11.2021 passed in M.Cr.C. No.48022/2021, hence, the
present applicant does not deserves for grant of bail.
05. Perused the case-diary as well as the impugned order.
06. Learned counsel for the applicant has placed reliance upon the
judgment passed by the Gujrat High Court in case of Imran Shamsher
Chouhan Vs. State of Gujrat (R/CR.MA/286/2018) decided on
01.02.2018. His contention is that eight witnesses have been examined
before the trial court and all the material witnesses have turned hostile,
hence, the present applicant deserves to be enlarged on bail.
07. In the present case, all the material witnesses have turned hostile
but, this stand is not applicable in the present case. The Hon'ble
Supreme Court in the case of Satish Jaggi Vs. State of Chattisgarh &
Ors. (Cr.A. No.651/2007) decided on 30.07.2007 has held as under:-
"At the state of granting of bail, the Court can only go
into the question of prima facie case established for
granting bail. It cannot go into the question of credibility
and reliability of the witnesses put up by the prosecution.
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
M.Cr.C. No.64143/2021
(Nawab Khan Vs. State of M.P.)
The question of credibility and reliability of prosecution
witnesses can only be tested during the trial."
08. As per the law laid down by the Hon'ble Supreme Court in
Satish Jaggi (supra), this Court can only go into the question of the
prima facie case established for granting bail. At the stage of
consideration of bail, this Court cannot go into the question of
credibility and reliability of the witnesses put up by the prosecution,
therefore, at this stage marshalling of evidence of statements of
witnesses before this Court cannot be done.
09. Considering the facts and circumstances of the case and the
nature and gravity of the allegations and also taking note of the fact
that the applicant's earlier two applications have already been rejected
on merits by this Court vide order dated 26.08.2021 passed in M.Cr.C.
No.42179/2021 and the order dated 09.11.2021 passed in M.Cr.C.
No.48022/2021 by observing that present applicant is a habitual
offender and 33 offences have been registered against him and he was
externed from the district by the district magistrate. Although after
passing of the earlier order, 6 witnesses have been examined before the
trial court and still so many witnesses remain to be examined after
passing the earlier order and this is the 3 rd bail application and the co-
accused persons, who have been released on bail were not similar with
the present applicant, hence, the present applicant does not deserve to
be enlarged on bail. Accordingly, the present third application is hereby
dismissed.
(Anil Verma)
Judge
N.R.
Digitally signed by NARENDRA KUMAR RAIPURIA
Date: 2022.01.28 18:12:39 +05'30'
