High Court

Legal Reasoning

BA-1615-2023 with application.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADBAIL APPLICATION NO.1615 OF 2023Rizwan Khan s/o Shafik KhanAge: 28 years, Occu.: Business,R/o. Jam-Parwa Road, Dargah Road,Parbhani, Tq. and Dist. Parbhani... ApplicantVersusThe State of MaharashtraThrough Kotwali Police Station,Tq. and Dist. Parbhani. .. Respondent...WITHCRIMINAL APPLICATION NO.3949 OF 2023IN BA/1615/2023Shaikh Salim s/o Shaikh AmirAge: 32 years, Occu.: Nil,R/o. Kurban Ali Shah Nagar,Darga Road, Tq. and Dist. Parbhani.. ApplicantVersus1.Mohd. Rizwan s/o Mohd.,Age: 36 years, Occu.: Nil,R/o. Darga Road, Parbhani,Tq. and Dist. Parbhani.2.The State of MaharashtraThrough Kotwali Police Station,Parbhani, District Parbhani.. Respondents……….Mr. Vishal A. Bagdiya, Advocate for applicant in Bail Application No.1615 of2023 and for respondent No.1 in Criminal Application No.3949 of 2023.Mrs. V. S. Choudhari, APP for the respondent – State in both theapplications.Mr. S. R. Pande, Advocate for applicant in Criminal Application No.3949 of2023.……….[1] BA-1615-2023 with application.odt CORAM : SMT. VIBHA KANKANWADI, J. RESERVED ON : DECEMBER 22, 2023 PRONOUNCED ON : JANUARY 05, 2024ORDER :- .Criminal Application No.3949 of 2023, filed by the informant seekingpermission to assist learned APP, stands allowed and disposed of.2.Present application has been filed under Section 439 of the Code ofCriminal Procedure. The applicant in present bail application has beenarrested in connection with Crime No.0139 of 2021 registered with KotwaliPolice Station, District Parbhani for the offence punishable under Sections307, 324, 109, 143, 147, 148, 149, 336, 337 of the Indian Penal Code,under Sections 4/25 of Indian Arms Act, under Sections 37(1), 37(3), 135of the Maharashtra Police Act and under Sections 3(1)(ii), 3(2), 3(4) of theMaharashtra Control of Organised Crime Act (hereinafter referred to as the“MCOC Act”). The applicant has been posed as accused No.1 in the FIR.Initially, when the FIR was registered, it was under the Sections of IndianPenal Code, Arms Act and Maharashtra Police Act. Later on, offencesunder the MCOC Act were came to be added. Now, the investigation isover and charge-sheet has been filed before the learned Special Courtunder the MCOC Act. However, as the matter progressed i.e. after thecharge-sheet, it appears that vide application Exhibit-75 in Special CaseNo.154 of 2021, present applicant has been discharged under Section 227[2] BA-1615-2023 with application.odtof the Code of Criminal Procedure of the offence punishable underSections 3(1)(i)(ii), 3(2) and 3(4) of the MCOC Act, yet it is to be noted thatwhen it is there for the co-accused, the matter would still be tried by theSpecial Court under the MCOC Act. 3.It will not be out of place to mention here that the present bailapplication is the second bail application of the applicant. His earlierapplication i.e. Bail Application No.284 of 2022 came to be rejected by thisCourt on 07.06.2022.4.Heard learned Advocate Mr. Vishal A. Bagdiya for the applicant inBail Application No.1615 of 2023 and learned APP Mrs. V. S. Choudhari forthe respondent – State assisted by learned Advocate Mr. S. R. Pande forthe original informant.5.It has been vehemently submitted on behalf of the applicant that theinjured Imran in this case is having Criminal background. The FIR islodged by his friend Shaikh Salim Shaikh Amir. There are two more FIR’sarising out of the same incident. One is Crime No.147 of 2021, whichcame to be lodged by the present applicant – Rizwan Khan on 04.07.2021in respect of the incident dated 24.06.2021 and another FIR vide CrimeNo.138 of 2021 came to be lodged by one Shaikh Ismail Shaikh Yunus forthe offence punishable under Sections 279, 337, 427 read with Section 34of Indian Penal Code and under Section 4, 7 and 27 of the Indian Arms[3] BA-1615-2023 with application.odtAct. From the two other FIRs, it can be certainly said that the injuredhimself had opened the fire and one of the bullet had hit the car of the saidthird person Shaikh Ismail. Therefore, when the injured himself was alsoholding a firearm, it requires no sympathy towards the injured. Thoughcharges under MCOC Act were also invoked, yet the applicant has beendischarged and then the co-accused against whom still the MCOC Actcharges are there i.e. Mohammad Rizwan has been released on bail bythe Hon’ble Supreme Court by order dated 06.11.2023 in Petition(s) forSpecial Leave to Appeal (Crl.) No(s).8629 of 2023. Another co-accusedAsef Khan has been released on bail by the learned SpecialJudge/Additional Sessions Judge-2, Parbhani by common order belowExhibit-10, 12, 13 in Special (MCOCA) Case No.154 of 2021 dated08.02.2022. Under the said circumstance, the applicant now deserves tobe released on bail. He is in jail since 04.07.2021.6.Per contra, the learned APP strongly opposed the application andsubmitted that though as against the present applicant the MCOC Actcharges have been dropped i.e. he has been discharged under Section227 of the Code of Criminal Procedure, yet he would be tried with the co-accused against whom the offence under MCOC Act is made. Further, asregards the merits of the case is concerned, role attributed to the applicantis that he has assaulted the injured Imran with sword. There is electronicevidence against him in the form of CCTV footage. The charge-sheet runs[4] BA-1615-2023 with application.odtin thousands of pages taking into consideration the MCOC Act chargesand the role attributed to the present applicant is different and, therefore,he does not deserve to be released on bail. 7.At the outset, we will have to consider now the position as it isstanding. When this Court had rejected the earlier bail application of theapplicant, at that time, there were MCOC Act charges against him andthereafter he has filed the application Exhibit-75 under Section 227 of theCode of Criminal Procedure to discharge him from the offences punishableunder the MCOC Act. It came to be allowed by the learned Special Judgeby giving reasons on 23.02.2023. However, again it appears that learnedSpecial Judge, Parbhani has passed a separate order below Exhibit-1 inSpecial Case No.154 of 2021 on 16.06.2023 discharging all the accusedfrom the offences under MCOC Act and, therefore, the case was directedto be re-registered as Sessions Case. That means, none of them is liableto face trial under the MCOC Act. Learned APP has not made it clear as towhether both the orders discharging all the accused from the MCOC Actcharges are challenged by the prosecution before this Court or not and,therefore, only the facts in the present case are required to be considered. 8.As regards the facts in this case are concerned as against thepresent applicant, there are allegations that he has assaulted injured Imranwith sword and thereafter that sword was taken by another Rizwan, but his[5] BA-1615-2023 with application.odtname is Mohammad Rizwan @ MR Mohd. Rafiq. It also appears that theinjured Imran, who has criminal cases against him, had opened fire. Imranappears to have received injuries to his both hands, legs and it wasseverely bleeding. There is discovery at the hands of accused. There isevidence in the nature of CCTV footage and also the alleged confessionunder the MCOC Act, however, what would be its evidentiary value nowwill have to be decided by the learned Sessions Judge. The injurycertificate of Imran shows that he had received eight injuries and most ofthem are incised and one is stab injury. Out of them five are grievousinjuries. Investigation is over and charge-sheet is already filed. The furthercustody of the applicant is not required. 9.This Court should now take the decisions which have come up afterthe rejection of the earlier application of the applicant by this Court. Co-accused Mohammad Rizwan came to be released on bail by the Hon’bleSupreme Court on 06.11.2023 taking into consideration his incarcerationfor a period of two years. Further, another co-accused Asef Khan wasearlier released on bail by the learned Additional Sessions Judge-2Parbhani on 08.02.2022, prior to the rejection of bail application of thepresent applicant. But taking into consideration the role at that time theearlier bail application of the present applicant was rejected (the chargesunder MCOC Act were also considered at that time). Under the saidcircumstance, the present application deserves to be allowed. Hence, the[6] BA-1615-2023 with application.odtfollowing order :-ORDER(1)Bail application stands allowed.(2)The applicant – Rizwan Khan s/o Shafik Khan, bereleased on bail in connection with Crime No.139 of 2021 registeredwith Kotwali Police Station, Taluka and District Parbhani for theoffence punishable under Sections 307, 324, 109, 143, 147, 148,149, 336, 337 of Indian Penal Code, under Section 4/25 of theIndian Arms Act and under Section 37(1), 37(3) and 135 of theMaharashtra Police Act, on the same terms and conditions, to beimposed by the trial Court, on which co-accused MohammadRizwan has been released on bail under the orders passed by theHon’ble Supreme Court in Petition(s) for Special Leave to Appeal(Crl.) No(s).8629 of 2023 dated 06.11.2023.(3)Bail before the Trial Court. [ SMT. VIBHA KANKANWADI ] JUDGEscm[7]