SAYAD NOOR SYED MUSA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BY this criminal application, the applicants challenge the order passed by the Additional Sessions Judge, Amravati, whereby he had allowed the application under section 439(2) of the Criminal Procedure Code for cancellation of bail.

(2.) THE present accused/applicants face a charge for an offence under section 302 of the Indian Penal Code, on the allegation that they committed murder of one Abdul Rashid Abdul Gani at the Railway Bridge, Amravati, in broad day light at about 6.00 p.m., causing multiple injuries to the said Abdul Rashid with lethal weapon. Prior to committing of this offence, the accused persons are alleged to have attempted to cause murder of the younger brother of Abdul Rashid and a separate Crime No.110/95 was registered for an offence under section 307 read with section 34 of the Indian Penal Code by Nagpuri Gate Police Station, Amravati. THE accused in this case were arrested on 6.6.1995 and the charge-sheet was actually filed before the Court on 30.8.1995 and it was on 6.9.1995 that the accused persons moved an application before the Judicial Magistrate, First Class, Court No.1 under section 67(2) of the Criminal Procedure Code for being released on bail. THE trial Court allowed this application though, in fact, the charge-sheet was already filed on record, on the ground that the accused were not produced before it and the cognizance of it was not taken by it within the prescribed period of 90 days. In fact, the Magistrate relied upon the reported decision of this Court in Khimbahadur Palshiram Thapa.v.State of Maharashtra (1989(3) Crimes 543). THE prosecution, therefore, challenged this order of grant of bail under section 167 of the Criminal Procedure Code before the Sessions Court, Amravati, by filing an application under section 439(2) of the Criminal Procedure Code. THE said application came to be allowed by the Additional Sessions Judge, Amravati, by the impugned order, dated 14.11.1995, and the bail granted to the applicants/accused was cancelled. It is this order which is in challenge in the present application under section 482 of the Criminal Procedure Code.

(3.) SHRI Dhote, learned Additional Public Prosecutor, appearing on behalf of the prosecution, however, pointed out that it would not be necessary to decide this application at all, as it has become infructuous on account of the fact that the bail application of this accused for the other offence under section 307 read with section 34 of the Indian Penal Code has been rejected by both the trial Court as well as this Court. SHRI Dhote points out that during the pendency of this application before this Court, an application for bail for the offence under section 307 read with section 34 of the Indian Penal Code came before this Court, and this Court also has rejected the same. In that view of that matter, according to him, if even otherwise the applicants were not liable to be released due to their involvement in the other offence, vide Crime No.110/95 registered by the Nagpuri Gate Police Station, Amravati, then the decision on the correctness or otherwise of the order of the Additional Sessions Judge would be merely academic. According to him, even if the order of the Additional Sessions Judge was set aside, that would, at the most, render the order of the Magistrate granting the application of the accuse d under section 167 of the Criminal Procedure Code, valid; but even then since the accused were already involved in another offence under section 307 read with section 34 of the Indian Penal Code, they cannot be released on bail with the aid of the order passed by the Magistrate and therefore, it would not be proper for this Court to decide the correctness or otherwise of the order passed by the Additional Sessions Judge. Another limb of the arguments of SHRI Dhote is that even otherwise, the order passed by the learned Additional Sessions Judge was right as now the charge-sheet has been filed and the right of the accused to be released on bail stands defeated because of the subsequent filing of the charge-sheet. He, therefore, urges that even if there is an order passed under section 167(2) of the Criminal Procedure Code, since the accused have not been released on bail factually, their right to be released on bail would stand frustrated and defeated because of the subsequent filing of the charge-sheet and the accused will have to earn their bail only on merits. SHRI Dhote, in support of his argument, relies upon the three Supreme Court decisions in - (1) Sanjay Dutt.v.The State (1994(5) Judgment Today - S.C.-540); (2) Mohamed Iqbal Madal Sheikh.v.The State of Maharashtra (1996(1) Crimes 4) and (3) State through CBI-v.Mohd,.Ashhraft Bhat (1996(1) Supreme 77). He submits that at any rate because of filing of the charge-sheet, the right of the accused now stands defeated and at this stage now the accused cannot be released on bail.