1
BA 1881/22
CNR NO : MHCC020102572022
IN THE COURT OF SESSIONS FOR GREATER BOMBAY
BAIL APPLICATION NO.1881 OF 2022
Mr. Haroon Iqbal Khan
Age 48 years, Occ – Driver
R/a R.No.9, Bldg. No.142,
Begum Mullani Chawl, Pipe Road,
Kurla (w), Mumbai 400 070.
The State of Maharashtra
(Through Kurla P. Stn.
vide Cr. No.621/2022)
… Applicant / Accused
Versus
… Respondent
Appearance :
Moin Khan Advocate for accused
Lade, A.P.P. for respondent /State
J. Jamkhandi for Intervener
CORAM : SHRI. S.D. KULKARNI,
ADDITIONAL SESSIONS JUDGE,
COURT ROOM No. 30.
DATED : 23/08/2022.
ORDER
1.
This is an application filed by the accused u/sec.439 of
Criminal Procedure Code for releasing him on bail in connection with
CR.No.621/2022
registered
with
Kurla
Police
Station
for
the
commission of offence u/sec.307,452 r/w 34 of Indian Penal Code.
2.
It is alleged by the applicant / accused that applicant /
accused is a Auto Rickshaw driver and not having any criminal
antecedent. The applicant / accused only present at the spot of incident
other than that he has not played any role in the commission of offence.
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BA 1881/22
The applicant / accused was arrested on 17.07.2022. He has undergone
police custody till 22.07.2022 and since then he is in judicial custody. It
is further alleged by the applicant / accused that there was civil dispute
pending in between the applicant / accused and informant family. The
victim Shibu was previously arrested for the commission of offence of
kidnapping and with Section of POCSO Act. In the said case the
applicant / accused acted as a panch witness therefore to pressurise the
applicant / accused informant lodged false report against him therefore,
applicant / accused prayed for releasing him on bail.
3.
The prosecution and intervener opposed the application on
a ground that at the time of commission of offence accused alongwith
present applicant / accused had been to the house of informant. The
other accused instigated Firoz to beat the informant and his family
members. In the said beating accused Firoz gave knife blow on the head
of Usman @ Shiboo. He also sustained fracture injury. It is further
alleged by the prosecution that if accused release on bail he will
threaten the prosecution witnesses. As accused also residing in the same
chawl, where the informant and witnesses resided. Hence, prayed for
rejection of the application.
4.
Perused application, say filed by the intervener and PSO of
Kurla Police Station. Heard all the advocates at length.
5.
The advocate for the applicant / accused relied on the ratio
laid down in the case of Hamlet Alias Sasi and Ors. V/s. State of
Kerala (2003) 10 SC Cases 108 therein the Hon’ble Supreme Court
held that none the accused using any deadly weapon on any vital part
of the deceased. The fact that accused only kick the deceased after fall
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BA 1881/22
also supports this inference of oars similarly accused interference of
ours similarly accused A2 to A4 used iron rod and hit the deceased on
limbs only and not any vital part of the body. All these facts shows that
the intention of accused to cause grievous hurt only and not to cased to
death. The advocate for the applicant / accused further submitted that
the coaccused Farida was released on anticipatory bail.
6.
I have gone through the FIR therein it is specifically
mentioned that there was previous enmity on account of property
dispute in between the parties. On the day of incident at about night
8.00 p.m. all accused had been to the house of informant at that time
accused Firoz hold knife in his hand. This act itself shows that the
intention of all accused is to caused injury to the injured and their
family members. It also shows that they have common intention to
come to the house of informant and after coming to the house of
informant immediately the scuffle starts. So in my opinion this act itself
shows that this applicant / accused and other absconded accused have
common intention to caused injury to the family members of the
informant. One of the accused holding knife in his hand and he has
given blow on the head of Shibu shows clear intention of the accused.
Therefore, in my opinion at the prima facie stage it could not be said
that the intention of the applicant / accused only to caused grievous
hurt to the injured and not to caused his death.
7.
It is also come on record that the injured shibu @ Usman
sustained fracture injury. He has taken treatment as a indoor patient
from 17.07.2022 to 21.07.2022 therefore I did not agree with the
submission of the applicant / accused that offence u/sec.307 is not
applicable to the present accused. If there is premeditating of mind and
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BA 1881/22
by that if accused persons assaulted the informant and other witnesses
then the over act of each cases can not be bifurcated. In this case also
all accused persons had been to the house of informant alongwith knife
and after arrival immediately started scuffle itself shows that the ill
intention of accused.
8.
It is come on record that accused persons and informant
residing in the same chawl admittedly witnesses also residing in the
same chawl. Therefore, in my opinion if accused release on bail there is
possibility of threatening the prosecution witnesses. The investigation is
not completed. The main accused person is still absconded. The
statement of informant is yet to be recorded as per Section 164(5) of
the Cr.P.C. therefore, in my opinion if accused release on bail there is
possibility of threatening prosecution witnesses. It will also affect on the
collection of the evidence. The offence is serious in nature and it needs
to be investigated properly. Therefore, in my opinion applicant /
accused is not entitled to be release on bail. Considering this, I pass the
following order :
ORDER
1]
Bail Application No.1881 of 2022 stands rejected.
2]
Bail Application No.1881 of 2022 is disposed off accordingly.
SANTOSH
DIGAMBAR
KULKARNI
Date : 23/08/2022.
Dictated on
Transcribed on
Signed by HHJ on
: 23.08.2022
: 24.08.2022
: 25.08.2022
Digitally signed
by SANTOSH
DIGAMBAR
KULKARNI
Date:
2022.08.26
15:03:04
+0530
( S.D. KULKARNI )
Additional Sessions Judge,
Gr. Mumbai.
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BA 1881/22
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
ORDER.”
23/08/2022
02.00 p.m.
UPLOAD DATE
TIME
J.S. Chavan
NAME OF STENOGRAPHER
Name of the Judge (With Court H. H. Additional Sessions Judge Shri.
Room No.)
S.D. Kulkarni,
Court Room No. 30.
Date of Pronouncement of ORDER 23/08/2022
ORDER signed by P.O. on
25/08/2022
ORDER uploaded on
26/08/2022