IN THE COURT OF SESSIONS FOR GR.BOMBAY AT MUMBAI
BAIL APPLICATION NO.1712 OF 2022
(CNR NO.MHCC020093162022)
1.
Shoaib Farukh Shaikh @ Sadiyal
Age : 19 years. Occ: Service
Address: Road No.05, Near Raza Masjid,
Janta Nagar, Mandala Mankhurd,
Mumbai 400043.
2.
Sahil Shafik Khan
Age : 19 years. Occ: Service
Address: Road No.04, Near Hanuman Mandir ,
Janta Nagar, Mandala Mankhurd,
Mumbai 400043.
3.
Abul Islam Abdul Kalam Ansari
Age : 20 years. Occ: Service
Address: Lane No.04, Opposite Hanuman Mandir ,
Janta Nagar, Mandala Mankhurd,
Mumbai 400043.
… Applicants
Versus
State of Maharashtra
(At the instance of Mankhurd
Police Station.)
… Respondent.
Ld. Advocate Mr.Sanjay Jadhav for applicants/accused.
Ld.APP Mr.Ramesh Siroya for the State.
CORAM : HIS HONOUR THE ADDL.SESSIONS JUDGE
SHRI.M.S.KULKARNI (C.R.NO.56)
DATED : 20th August, 2022
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(DICTATED AND PRONOUNCED IN OPEN COURT)
ORAL ORDER
1.
This bail application is in respect of C.R.No.638/2022
registered with Mankhurd Police Station for the offences punishable
under Sections 326, 323, 504, 506 r/w. 34 of Indian Penal Code.
2.
Applicants/accused came to be arrested on 29/6/2022.
They were in police custody till 4/7/2022 and from 4/7/2022 they are
in Judicial Custody.
3.
FIR in short is that;
On 25/6/2022 (When the first informant was coming
towards his house) his motorcycle was broken down. So he halted the
Motorcycle at road side and came at his house. He asked his mother to
make money ready to repair the motorcycle. He then went to his friend
Rauf Lala to request him to take his motorcycle, to proceed towards the
place whereat he had parked his motorcycle. Accordingly on relevant
date at 10.30p.m. Rauf Lala and the first informant came at the house of
first informant on motor bike of Rauf Lala. The first informant then took
money from his mother to repair motorcycle, and when they were about
to leave his house the accused who has in fact childinconflictwithlaw
viz.Aftab Shaikh came and demanded key of the motorcycle of the Rauf
Lala. The First Informant denied to give key of motorbike to Aftab, so
Aftab started to assault the first informant with abuses. Meanwhile, the
applicant/accused and his friend Islam and their relatives came at the
place where they all started to assault first informant. Meanwhile
applicant Shoaib gave blow of iron bracelate which he was wearing, on
the right eye and forehead of first informant. Because of that first
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informant sustained bleeding injury at right eye. He also sustained
bleeding injury on his nose. When Rauf Lala tried to intervene he was
also assaulted by Aftab and applicants/accused. Meanwhile, first
informant suffered giddiness and started omitting, seeing such situation
of first informant Aftab and other accused left the spot. The first
informant was taken to Shatabdi Hospital after first aid he was taken to
Sion Hospital.
4.
Applicants/accused are asking for bail on the ground that
they have been falsely implicated in the crime. Investigation is almost
over. They are permanent residents of Mumbai. They are ready to co
operate with prosecution during investigation as well as at the time of
trial. No criminal antecedents against them.
5.
The prosecution has strongly objected bail on the ground
that applicants/accused may threaten the first informant. They would
commit similar offence and they will flee from justice.
6.
I have heard learned advocate Mr.Sanjay Jadhav and
Learned APP Mr.Siroya for State at length. IO has put on record case
diary. I perused the case diary. Medical report available in the diary
disclose that when the first informant was brought to the L.T.N.G. Sion
Hospital at Mumbai, bleeding from the injury was stopped, but
considering nature of injuries the first informant was referred to Opthal
as well as ENT Ward. Medical documents in case diary did not show
that the first informant is still under treatment or he is still hospitalised.
7.
The offence punishable under Section 326 of Cr.P.C. no
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doubt provides maximum punishment of life imprisonment but the
offence is triable by the judicial Magistrate.
8.
In the case of Sanjay Chandra Vs. Central Bureau of
Investigation 2012 CRI.L.J.702 of Hon’ble Apex Court through para
Nos.14,15 and 16 laid down as;
14.
In bail applications, generally, it has
been laid down from the earliest times that the
object of bail is to be secure the appearance of
the accused person at his trial by reasonable
amount of bail. The object of bail is neither
punitive nor preventative.
Deprivation of
liberty must be considered a punishment,
unless it can be required to ensure that an
accused person will stand his trial when called
upon. The courts owe more than verbal
respect to the principle that punishment begins
after conviction, and that every man is deemed
to be innocent until duly tried and duly found
guilty.
From the earliest times, it was
appreciated that detention in custody pending
completion of trial could be a cause of great
hardship.
From time to time, necessity
demands that some unconvicted persons
should be held in custody pending trial to
secure their attendance at the trial but in such
cases, ‘necessity’ is the operative test. In this
country, it would be quite contrary to the
concept of persona liberty enshrined in the
Constitution that any person should be
punished in respect of any matter, upon which,
he has not been convicted or that in any
circumstances, he should be deprived of his
liberty upon only the belief that he will tamper
with the witnesses if left at liberty, save in the
most extraordinary circumstances. Apart from
the question of prevention being the object of a
refusal of bail, one must not lose sight of the
fact that any imprisonment before conviction
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has a substantial punitive content and it would
be improper for any Court to refuse bail as a
mark of disapproval of former conduct whether
the accused has been convicted for it or not or
to refuse bail to an unconvicted person for the
purpose of giving him a taste of imprisonment
as a lesson.
15.
In the instant case, as we have already
noticed that the “pointing finger of accusation”
against the appellants is ‘the seriousness of the
charge’. The offences alleged are economic
offences which has resulted in loss to the State
Exchequer. Though, they contend that there is
possibility of the appellants tampering
witnesses, they have not placed any material in
support of the allegation.
In our view,
seriousness of the charge is, no doubt, one of
the relevant considerations while considering
bail applications but that is not the only test or
the factor: The other factor that also requires
to be taken note of is the punishment that
could be imposed after trial and conviction,
both under the Indian Penal Code and
Prevention of Corruption Act. Otherwise, if the
former is the only test, we would not be
balancing the Constitutional Rights but rather
“recalibration of the scales of justice”. The
provisions of Cr.P. C. confer discretionary
jurisdiction on Criminal Courts to grant bail to
accused pending trial or in appeal against
convictions
since
the
jurisdiction
is
discretionary, it has to be exercised with great
care and caution by balancing valuable right of
liberty of an individual and the interest of the
society in general. In our view, the reasoning
adopted by the learned District Judge, which is
affirmed by the High Court, in our opinion, a
denial of the whole basis of our system of law
and normal rule of bail system. It transcends
respect for the requirement that a man shall be
considered innocent until he is found guilty. If
such power is recognized, then it may lead to
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chaotic situation and would jeopardize the
personal liberty of an individual. This Court, in
Kalyan Chandra Sarkar Vs. Rajesh Ranjan
(2005) 2 SCC 42: (AIR 2005 SC 921),
observed that “ under the criminal laws of this
country, a person accused of offences which
are nonbailable, is liable to be detained in
custody during the pendency of trial unless he
is enlarged on bail in accordance with law.
Such detention cannot be questioned as being
violative of Article 21 of the Constitution, since
the same is same is authorized by law. But
even persons accused of nonbailable offences
are entitled to bail if the Court concerned
comes to the conclusion that the prosecution
has failed to establish a prima facie case
against him and/or if the Court is satisfied by
reasons to be recorded that in spite of the
existence of prima facie case, there is need to
release such accused on bail, where fact
situations require it to do so.
16.
This court, time and again, has stated
that bail is the rule and committal to jail an
exception. It is also observed that refusal of
bail is a restriction on the personal liberty of
the individual guaranteed under Article 21 of
the Constitution. In the case of State of
Rajasthan Vs. Balchand, (1977) 4 SCC 308:
(AIR 1977 SC 2447), this Court opined:
“2. The basic rule may perhaps be tersely put
as bail, not jail, except where there are
circumstances suggestive of fleeing from justice
or thwarting the course of justice or creating
other troubles in the shape of repeating
offences or intimidating witnesses and the like,
by the petitioner who seeks enlargement on
bail from the Court. We do not intend to be
exhaustive but only illustrative.
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9.
In view of the Judgment and Law laid down by Hon’ble
Apex Court as noted by above and the fact is that applicants/accused
have been behind the bar since 29/6/2022. Meanwhile investigation is
over so it will not be proper to keep incarcerated for further period.
They are entitled for bail, if stringent conditions are put to them the
interest of the prosecution would be served. Accordingly, I pass
following order;
ORDER
1.
Bail Application No.1712 of 2022 is allowed.
2.
Accused/applicants Shoaib Farukh Shaikh @ Sadiyal, Sahil Shafik
Khan and Abul Islam Abdul Kalam Ansari are released on bail in
C.R.No.638/2022 on furnishing PB and SB of Rs. 30,000/(Rs. Thirty
Thousand) each with one or two sureties in the same amount.
3.
Provisional cash security of Rs. 30,000/ each is allowed which
will remain in force for two months. Meanwhile applicants/accused
have to furnish surety as directed above.
4.
They shall not flee from justice.
5.
They shall not tamper with the evidence and cooperate with the
investigating officer in investigation.
6. They shall attend Mankhurd Police Station on every Thursday in
between 10.00 a.m. to 11.00 a.m. till filing of chargesheet.
7.
Applicants/accused not to meet the first informant and witnesses
for year.
8.
Bail before trail Court.
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9.
Bail Application No.1712/2022 stands disposed off accordingly.
(M.S.Kulkarni)
Addl.Sessions Judge,
City Civil and Sessions Court,
For Greater Bombay
Date : 20.08.2022.
Dictated on
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Typed on
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Draft checked on :
Retyped on
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Signed on
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20.08.2022.
23.08.2022.
25.08.2022
28.08.2022
29.08.2022
“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
NAME OF STENOGRAPHER
: 29.08.2022 at 5.00 p.m.
: Mrs.Jyoti R. Mane
NAME OF THE JUDGE
HHJ SHRI.M.S.Kulkarni
(C.R.No.56)
Date of Pronouncement of Order
20.08.2022
Order signed by the P.O. On
29.08.2022
Order uploaded on
29.08.2022
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