Shaikh Sarvar Shaikh Nur v. The State Of Maharashtra And Others

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD APPLICATION FOR CANCELLATION OF BAIL NO.70 OF 2018 Shaikh Sarvar Shaikh Nur, Age-34 years, Occu-Service, R/o-Varphal, Tq. Partur, Dist. Jalna.

.. APPLICANT

VERSUS

1.

State of Maharashtra Through Senior Police Inspector Police Station Aashti Tq. Partur, Dist. Jalna.

2.

Siddharth s/o. Mungaji Shejul, Age-37 years, Occu: Labour 3.

Badrinarayan s/o.Daulat Parkhe, Age: 45 years, Occu:Labour, Both 2 & 3 R/o.Sirasgaon, Tq.Partur, Dist. Jalna. .. RESPONDENTS ...

Mr.A.S.Usmanpurkar, Advocate for the applicant Mr.S.Y.Mahajan, Addl.P.P. for the respondent no. 1 - State Mr.P.P.More, Advocate for respondent nos.2 and 3.

...

CORAM: V.M.DESHPANDE,J.

DATE : 05.04.2019

ORAL JUDGMENT:

1] Rule. Rule made returnable forthwith and heard finally by the consent of the parties.

2] Heard Shri A.S.Usmanpurkar, learned counsel for the applicant, Shri S.Y.Mahajan, learned Additional Public Prosecutor for the respondent-State and Shri P.P.More, learned counsel for respondent nos.2 and 3.

3] By the present Application, the applicant, who is the first informant, is seeking cancellation of the bail granted by the learned Additional Sessions Judge-3, Jalna, in favour of respondent nos.2 and 3 on 22nd March, 2018, in Criminal Misc. Petition [Bail] No.226/2018.

4] On the basis of report lodged by the present applicant, Shaikh Sarvar Shaikh Nur, an offence was registered with Ashti Police Station, District Jalna, on 10th February, 2018. On the basis of report lodged by the present applicant, offence was registered against one Ramesh Tayade and Angad and other unknown persons, vide Crime No.10/2018, for the offences punishable under Sections 302, 323 r/w.34 of the Indian Penal Code.

5] The first informant - present applicant is the brother of the deceased Munwar. From the First Information Report, it is clear that he is not eye witness and he got information that Munwar was in the company with the main accused, namely, Ramesh Tayade, and they had drinking session and in that certain dispute arose. The First Information Report is completely silent about the presence of respondent nos.2 and 3. Even,

Mauli, a friend of the deceased, who gave information about the drinking session and altercation between the deceased and others, does not disclose the name of the present respondent nos.2 and 3.

6] The respondent nos.2 and 3 were arrested on 10th February, 2018, and they were in police custody for 10 days i.e. till 20th February, 2018. Thus, the custodial interrogation was completely done when they were in the custody of the police.

Thereafter, they were taken in the magisterial custody remand.

7] After respondent nos.2 and 3 were taken in the magisterial custody remand, they moved an application for bail. The learned Judge of the trial Court, by the impugned order, found that during the course of custodial presence, the entire investigation

qua respondent nos.2 and 3 was already over and there is no direct evidence against respondent nos.2 and 3. It appears that the said weighed in the mind of the learned Judge of the trial Court and in my view, correctly, and released the respondent nos.2 and 3 on bail. However, while releasing respondent nos.2 and 3 on bail, the Court below has imposed certain conditions upon respondent nos.2 and 3 and those conditions are not flouted, since it is not the case of the applicant that respondent nos.2 and 3 have committed any breach of the said conditions.

8] The learned counsel for the applicant invited my attention to the Objection Petition filed by the present applicant before the Court below at the time of consideration of the Bail Application filed by respondent nos.2 and 3. Perusal of the said would show that the bail was

primarily opposed on the ground that if the respondent nos.2 and 3 are released on bail, then, there is every possibility that they will tamper with the prosecution case and will cause harm to the prosecution witnesses and the present applicant. The apprehension in the mind shall have to be certain foundation. There being no foundation, in my view, the sole factor of apprehension cannot be a ground for canceling the regular bail.

Further after release of respondent nos.2 and 3, till today, no untoward incident has occurred at the hands of respondent nos.2 and 3. Consequently, there is no merit in this Application and the Application is rejected. Rule is discharged.

[V.M.DESHPANDE] JUDGE DDC