Arbazkha S/O Ajharkha Pathan vs State Of Maharashtra Thr Pso., Ps … on 23 March, 2026

    0
    37
    ADVERTISEMENT

    Bombay High Court

    Arbazkha S/O Ajharkha Pathan vs State Of Maharashtra Thr Pso., Ps … on 23 March, 2026

    2026:BHC-NAG:4622
    
    
                                                            1                      16-Cr.BA-263-2026
    
    
                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      NAGPUR BENCH, NAGPUR.
                             CRIMINAL APPLICATION [B.A.] NO. 263 OF 2026
                                            Arbazkha S/o Ajharkha Pathan
                                                     -- VERSUS --
                                                 State of Maharashtra
             __________________________________________________________________________
            Office Notes, Office Memoranda of Coram,
            appearances, Court's orders of directions       Court's or Judge's orders.
            and Registrar's Orders.
    
                                           Mr. A.C. Jaltare, Advocate for the Applicant.
                                           Ms. S.Z. Haider, A.P.P. for the Non-applicant/State.
    
    
                                           CORAM :          M.M. NERLIKAR, J.
                                           DATE         :   MARCH 23, 2026.
    
                                                            Heard.
    
                                           2.               The present application is filed seeking
                                           regular bail in Crime No.87/2022 for the offence
                                           punishable under Sections 307, 395, 147, 148, 149
                                           and 323 of the Indian Penal Code, 1860, read with
                                           Sections 4 and 25 of the Indian Arms Act, 1959,
                                           Section 135 of the Maharashtra Police Act, 1951, and
                                           Sections 3(1)(ii), 3(2) and 3(4) of the Maharashtra
                                           Control of Organized Crime Act, 1999, registered
                                           with Police Station Kurkheda, District Gadchiroli.
    
                                           3.               The crime is registered on the basis of
                                           report lodged by Manoj Nilkant Dunedar, on an
                                           allegation that on 28/05/2022 at about 6.30 p.m.
                                           while he was returning towards his village Kurkheda,
                                           on the way the fuel in his motorcycle ran out,
                  2                   16-Cr.BA-263-2026
    
    
    therefore, he was waiting for somebody to bring the
    fuel. At the relevant time, he heard the noise of
    quarrel   between   some       persons   near   Goshala,
    therefore, he went near Goshala and witnessed the
    present applicant along with other co-accused
    assaulting one person working in the Goshala. As he
    went to intervene he was assaulted with knife and
    stone by the co-accused while the applicant threw
    stone on his cheek. Further, the applicant has also
    caused injury to the informant with the help of wheel
    disk of car. It is further alleged that the present
    applicant along with others have also committed
    robbery by snatching Rs.11,000/- from the pocket of
    the informant. On the basis of said report, the police
    have registered the crime against the present
    applicant.
    
    4.           At the outset, the learned counsel
    appearing for the applicant raises two grounds.
    Firstly, this Court, by its order dated 16/01/2024, has
    granted bail to two applicants, (i) Mukesh s/o
    Bhanudas Karade in Criminal Application [B.A.]
    No.255/2023 and (ii) Nikesh @ Nikku Chagan
    Meshram      in     Criminal      Application     [B.A.]
    No.683/2023, and accordingly, he submits that the
    applicant also deserve to be granted bail on the
    ground of parity. He further submits that apart from
    the merits of the case, the applicant also deserves to
                 3                    16-Cr.BA-263-2026
    
    
    be granted bail on the ground of "delay in trial" as
    the applicant is arrested on 02/06/2022. He submits
    that, till today, even the charges are not framed and,
    therefore, he submits that considering the long
    incarceration, the applicant deserves to be granted
    bail, as he is in jail for more than three years and
    nine months.
    
    5.              On the other hand, the learned A.P.P.
    concedes to this fact and submits that this Court has
    granted bail to two accused persons, namely, Mukesh
    s/o Bhaudas Karade and Nikesh @ Nikku Chagan
    Meshram. The present applicant is also similarly
    situated. The only difference is that the applicant has
    caused injury on the informant with the help of wheel
    disk of car, which is grievous in nature. She further
    submits that Rs.11,000/- was stolen from the pocket
    of the informant and there are antecedents against
    the applicant. No doubt, the applicant is in jail since
    02/06/2022, however, considering the serious nature
    of allegations, the applicant does not deserve to be
    granted bail.
    
    6.              I have considered the rival submissions.
    Admittedly, while granting bail to two accused
    persons, Mukesh s/o Bhaudas Karade and Nikesh @
    Nikku Chagan Meshram, this Court has scanned the
    material in detail. It appears that the injuries
    sustained by the informant are not life threatening
                    4                  16-Cr.BA-263-2026
    
    
    injuries, though it is grievous. The injured is already
    discharged from the hospital. It further appears that
    the role played by one of the accused, Nikesh @
    Nikku Chagan Meshram, is similar to the present
    applicant. The reasons which are given in those
    applications while granting bail to two co-accused,
    they would be applicable to the present application
    also.
    
    7.              Apart from this, it is further to be noted
    that the applicant is behind bars since 02/06/2022.
    Therefore, even on ground of delay the applicant
    deserves bail.
    
    8.              The Hon'ble Supreme Court in the case
    of Javed Gulam Nabi Shaikh VS State of Maharashtra
    and Another, (2024) 9 SCC 813; has in para no.17
    held as under:
    
            "17.     If the State or any prosecuting agency
            including the court concerned has no
            wherewithal to provide or protect the
            fundamental right of an accused to have a
            speedy trial as enshrined under Article 21 of the
            Constitution then the State or any other
            prosecuting agency should not oppose the plea
            for bail on the ground that the crime committed
            is serious. Article 21 of the Constitution applies
            irrespective of the nature of the crime."
    
                    Further in case of Sheikh Javed Iqbal VS
    State of Uttar Pradesh, (2024) 8 SCC 293; it has been
    held in para no.42, by the Supreme Court as under :
                 5                  16-Cr.BA-263-2026
    
    
        "42.     This Court has, time and again,
        emphasized that right to life and personal
        liberty enshrined Under Article 21 of the
        Constitution of India is overarching and
        sacrosanct. A constitutional court cannot be
        restrained from granting bail to an Accused on
        account of restrictive statutory provisions in a
        penal statute if it finds that the right of the
        Accused-undertrial Under Article 21 of the
        Constitution of India has been infringed. In that
        event, such statutory restrictions would not
        come in the way. Even in the case of
        interpretation of a penal statute, howsoever
        stringent it may be, a constitutional court has to
        lean in favour of constitutionalism and the Rule
        of law of which liberty is an intrinsic part. In the
        given facts of a particular case, a constitutional
        court may decline to grant bail. But It would be
        very wrong to say that under a particular
        statute, bail cannot be granted. It would run
        counter to the very grain of our constitutional
        jurisprudence. In any view of the matter, K.A.
        Najeeb (supra) being rendered by a three Judge
        Bench is binding on a Bench of two Judges like
        us."
    
                 Even in the recent judgment in case of
    Anoop Singh .vrs. U.T. of J and K (SLP (Cri)
    No.1398/2026 ) vide order dated 03/02/2026 has in
    paragraph no.8 held as under :
    
         "8.     The report is extremely disturbing. The
         report highlights the sorry state of affairs at the
         end of the prosecuting agency. We are at pains
         to note that in last 7 years, the prosecution has
         been able to examine only 7 witnesses.
         Prosecution still intends to examine 17 more
         witnesses. We wonder who are these 17
         witnesses who are yet to be examined and if
         not examined, what would be the adverse effect
                  6                 16-Cr.BA-263-2026
    
    
         on the case of the prosecution. However, the
         most unfortunate part of the report of the Trial
         Court is that past 82 hearings, not a single
         witness has been examined."
    
    9.           Considering the above exposition of law
    and the fact that the applicant is behind bars since
    02/06/2022 and further the charges are yet to be
    framed, I am inclined to grant bail by imposing
    stringent conditions. Hence, the following order:-
    
                          ORDER
    

    (i) The Criminal Application is
    allowed;

    (ii) The applicant/accused (Arbazkha
    S/o Ajharkha Pathan) be released on regular
    bail in connection with Crime No.87/2022 for
    the offence punishable under Sections 307, 395,
    147, 148, 149 and 323 of the Indian Penal Code,
    1860, read with Sections 4 and 25 of the Indian
    Arms Act, 1959, Section 135 of the Maharashtra
    Police Act, 1951, and Sections 3(1)(ii), 3(2) and
    3(4) of the Maharashtra Control of Organized
    Crime Act, 1999, on his furnishing a P.R. bond of
    Rs.25,000/- (Twenty Five Thousand Rupees)
    with one solvent surety in the like amount;

    SPONSORED

    (iii) The accused shall not directly or
    indirectly make any inducement, threat or
    promise to any person acquainted with the facts
    7 16-Cr.BA-263-2026

    of the case, as also shall not tamper with the
    evidence;

    (iv) The accused shall provide his
    residential address and cell number to Police
    Station concerned and shall not change his place
    of residence without prior intimation to the
    Investigating Agency;

    (v) The accused shall attend each and
    every date of trial regularly. If he fails to attend
    the trial for two consecutive dates, or fails to
    comply with the aforesaid conditions, his default
    would entail the State to ask for cancellation of
    bail or even trial Court can suo moto take
    cognizance of this and cancel the bail;

    (vi) The applicant shall not indulge in
    similar types of activites;

    (vii) Pending Misc. Application(s), if
    any, also stand disposed of.

    [ M.M. NERLIKAR, J ]
    Piyush Mahajan



    Source link

    LEAVE A REPLY

    Please enter your comment!
    Please enter your name here