STATE OF MAHARASHTRA Vs. ABDUL RASHID

JUDGEMENT

(1.) As a consequence of the incident occuring on 20th June, 1986, the Vaijapur Police Station registered offence under Sections 147, 148, 149, 323, 337, 338, 307 and 395 of the Indian Penal Code. Saventeen persons who are Respondents before me came to be arrested by the police immediately after the occurrence. Police custody remands were obtained and then the accused were remanded to magisterial custody. All these 17 persons then applied before the Sessions Court, Aurangabad, for bail under Section 439 of the Criminal Procedure Code. The learned Additional Sessions Judge, Aurangabad, by his reasoned order passed on 1-6-1986 released all these persons on bail on the terms and conditions detailed in the concluding paragraph of his order. It is this order which has been the subject matter of challenge before this Court in this petition. Though the Public Prosecutor has not been very clear as to whether he is challenging the legality of the order passed by the trial Court taking it as a revision proceeding, he, however, positively urged before me that he is applying for cancellation of bail as contemplated under sub-section (2) of Section 439 of the Criminal Procedure Code.

(2.) The facts giving rise to this litigation do not require much elaboration. As already stated on 20th June, 1986, there were communal riots at Borsar in Vaijapur tahsil. It was the contention of prosecution that the present accused along with some other persons formed an unlawful assembly, the object whereof was to threaten and initimidate the other community in the village. It was their contention that the mob (of which the present Respondents-accused were the constituents) raided the house of one Karbhari and attempted to set it on fire. It was also the prosecution case that attempt was made to set on fire the daughter of Karbhari. During the the course of incident one Babu came to interven but he was man-handled, stoned and brick-bated by the mob as a result of which he fell on the ground. Intimation was given to the police to send the police force to the village. The injured persons were sent to the police station and then to the Local Hospital. However, Babu's physical condition became serious and he was removed to the Medical College Hospital at Aurangabad. Babu could not survive long inspite of best efforts on the parts of authorities of the Medical College and he breathed his last on 25th June, 1986.

(3.) The Police registered the offence and arrested these 17 persons in connection with this crime. It is not much disputed that the police custody remond was obtained from the Court by the police and after the lapse of that remand, the accused were remanded to magisterial custody. It means that Police no longer wanted the personal presence of the accused for further in vestigation or that the Court did not think it necessary the presence of thea accused for investigation. That is why, they were remanded to magisterial custody. While the accused were in the magisterial custody, they moved for bail before the Sessions Court at Aurangabad. The learned Additional Sessions Judge heard the Counsel of the respective parties and passed the order. As this order has not been challenged before this Court, by way of revision, it will not be correct to scrutinise the propriety of this order. 1 take it as a proceeding under sub-section (2) of Section 439 of the Criminal Procedure Code and not a proceeding of revision. Even treating it under the former provision, the learned Judge has given sufficient reasons which prompted him to release the accused on bail. The reasons were (1) that there was no clinching material to assume that the accused are guilty of the offence publishable under Section 302 of the Indian Penal Code ; (2) that the presence of the accused before the investigation machinery is not necessary ; and (3) that the accused are not likely to abscond and thus to abuse the liberty. It appears that this rationale is quite sound and it needs no interference.