STATE OF MAHARASHTRA Vs. SHER ALI MOHAMED SADIQUE

JUDGEMENT

(1.) The proceedings depicts not only transgression of limits by the learned Magistrate of his jurisdiction but more disturbing features is that the impugned order does not contain even a grain of reasoning so as to infer application of mind and one is really constrained to observe that an obviously serious matter has been dealt with in rather a casual manner. An incident occurred at about 8 p.m. on a public street near over head bridge in Santacruz area of this city, which according to prosecution was quite ghastly. It is alleged that one Salauddin was proceeding by the road completely unaware of the tragedy that was to occur when all of a sudden about 5-6 persons, who were present in the vicinity directed their attention towards him as a target. Most of them were armed with words and were brandishing those weapons so that members of the public who were present at the spot would dare not go to the rescue of the victim. After having secured this position, it was Sher Ali Mohamed Sadique, who is the first respondent herein, was more active when he took out a revolver and before the victim could realise the implication, he fired shots at him from a close distance causing injuries to the arm as also the abdomen. It is further disclosed by the material collected by the police that the bullet injury caused in the abdomens was through and through. Inspite of that, the victim mustered some strength and started running from spot shouting loudly, though holding stomach with his hands. As luck would have it some constables were in the vicinity. One out of the miscreates chased the said victim Salauddin and it is alleged that even in that condition he was assaulted with sword. Not only that but as per the allegations, even one of the constables by name Borate was also assaulted by the sword by one of the miscreants and the constable also sustained injuries. Salauddin obviously could not travel a considerable distance and soon collapsed. The intimation was given to the Santacruz Police Station. By the time, however, the police could arrive at the spot, Salauddin was removed to Nanavati Hospital and when the police arrived at the spot they found one person Dinanath equally seriously injured. However, the prosecution are not in a position to affirmatively say that Dinanath was injured in the course of the same transaction and it is stated by the prosecution that case was being investigated on the basis of different C.R. number with same Police Station. That, therefore, need not detain us. Salauddin was medically treated since the injuries were apparently serious. Unfortunately he succumbed to the injuries on December 21, 1982. Initially an offence under section 307 of the Penal Code read with section 149 and other allied offences was registered at the said Police Station under C.R. No. 925 of 1982. This was obviously changed to one under section 302 in view of death of Salauddin on December 21, 1982. Investigation is still in progress. The police have been able to contact nearly four eye witnesses out of whom one or two persons have actually named the three respondents herein as being the members of the unlawful assembly and armed with those weapons, and it was the first respondent, who fired the shots. It may also be observed that after Salauddin was removed to Nanavati Hospital on that night itself his dying declaration was recorded by Police Inspector, which declaration was treated as F.I.R. when the names of those three respondents along with others are expressely mentioned in the same as being the perpetrators of the crime. The medical evidence as reflected through the case papers and the first certificate on the admission of Salauddin as also his autopsy report ex facie support the prosecution case about the assault by means of revolver and swords. There are gun shot wounds as also punctured wounds. Prima facie at least the cause of death can be safely attributed to the said assault though the deceased might have survived for about 10 days. The prosecution also alleged an element of motive inasmuch as Salauddin and his colleagues were earlier prosecuted, though they were acquitted, and these accused persons were interested in securing conviction and thus this enraged them and this furnishes a motive in addition to the alleged long standing enmity between them. The statements of direct witnesses are quite clear. There was adequate light and the incident occurred almost in the open. It is also alleged that to scare the people shots were fired in the air even after the incident. This pertains to the nature of material collected by the police.

(2.) The more disturbing feature comes into existence as per the events that are being referred to hereinafter. The respondent Nos. 1 and 2 were arrested on the same night of incident while respondent No. 3 was arrested on December 24, 1982 as he was absconding.

(3.) It was December 11, 1982, i.e. within 24 hours after the arrest, accused Nos. 1 and 2 were presented before the learned Magistrate at Andheri and they were placed in police custody remand upto December 28, 1982. As stated the nature of offence was changed on December 21, 1982. In between i.e. during the period of remand an interim bail application was filed on behalf of the said two accused on December 17, 1982. This was, however, on the forum of the learned Metropolitan Magistrate, Bandra who was pleased to grant even interim bail in the sum of Rs. 2500/- with a condition annexed to report to the said Police Station on every Monday. This was perhaps as by that time the offence was one under section 307 as the victim was alive. The State however, was not satisfied with the said interim order and, therefore, moved this Court in Criminal Application No. 1448 of 1982 when rule was granted on December 22, 1982 making it returnable on January 10, 1983. The further development, however, is more disturbing, which came into existence after the victim died and the nature of offence was changed. It was on December 22, 1982 that both these accused were rearrested obviously because the offence transpired was one under section 302 and they were again placed before the learned Metropolitan Magistrate, Bandra for remand. Accused No. 3 in the meanwhile came to be arrested on December 24, 1982. He was also placed before the same Magistrate for remand, though on December 25, 1982. The learned Magistrate remanded all the three accused to the police custody upto 5th January, 1983. It is on 5th January, 1983 that an application for bail came to be filed on behalf of all the three accused, which was stoutly opposed on behalf of the prosecution. That application came to be decided on 6th January, 1983 and the learned Magistrate quite surprisingly recorded only a cryptic order that all the three accused be enlarged on bail in the sum of Rs. 5000/- with one surety in the like amount with an option of giving cash bail of Rs. 5000/- stipulation was annexed that they shall not enter into the area which falls within the jurisdiction of Santacruz Police Station and that they shall observe peace wherever they stay and they were further directed to attend the Court on each of the remand dates. It was revealed by the police that these accused were found moving in the prohibited area on January 13, 1983. Therefore, on January 17, 1983 Police Inspector filed an application before the said Court for cancellation of bail on the additional ground that the condition annexed to the bail has been violated. An equally unusual order has been passed by the learned Magistrate, which does not make rather a happy reading. It is rather difficult to reproduce the gist of the order in a faithful manner since it contains more confusion rather than any rationale and, therefore, the best thing would be to reproduce that order verbatim, as