Order 1

Order Details: Bail Order
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ORDER BELOW BAIL APPLICATION IN CC NO.70/PW/2020
CR NO.440/2019 U/S 387, 504, 506 OF IPC, 37(1), 135 OF
MUMBAI POLICE ACT OF NIRMAL NAGAR PS
1. Perused application. Say of APP. Heard both sides at
length.
2. This is second bail application of accused after filing of
chargesheet. His first application was rejected by this court as per order
dt. 24.12.2019, despite the fact that the informant had filed affidavit
giving no objection for granting bail and alleging that police obtained
his signature on FIR to implicate accused. It was observed that there is
possibility of threats to the informant in view of his antecedents and the
antecedents of the accused. They both are coaccused in a murder trial
and having committed various other offences. It was also observed that
no independent witnesses were appearing in view of terror of accused
and investigation was in progress. Thus, the affidavit of the informant
was not relied upon.
3. The FIR shows that on 20.04.2019 at about 12.15 a.m. to
12.30 a.m. accused knocked the door of informant and shouted
threatening him to come outside and pay him Rs.2000/ otherwise he
will kill him. When the informant peeped from the gap of door, he
found accused stood outside holding a knife. The informant was
knowing that accused is the goon having various crime and used to
extort by threatening the people. As the accused was continuously
shouting and threatened the informant, the persons passing from the
lane frightened and they were started running. At that time, police
came there and hold accused from behind and took out knife from his
hand. When they made inquiry with the informant, the informant
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narrated the above incident to them. Accordingly, police took informant
and accused to the police station and lodged present crime.
4. Ld. Advocate for the accused Mr. Bagoria argued that the
accused has been falsely implicated. Without proper investigation, the
police hastily submitted chargesheet within 19 days of FIR to avoid
investigation. According to him, the investigating officer should atleast
wait for 60 days to see whether any independent witness would come
forward. He also pointed out that the arrest is shown at about 2.37 a.m.
when allegedly incident was occurred on 01.15 a.m. The arrest
panchanama shows the date 19.12.2019 when the incident occurred on
20.12.2019. Though knife was recovered as the alleged spot of incident,
it was shown recovered in the personal search panchanama made in the
police station. Therefore, he argued that these all aspects highlights the
intention of police to falsely implicate the accused. Therefore, according
to him, the affidavit of the informant shall be relied upon to release
accused on bail. He also argued that the investigation being now
completed, no reason to deny bail by imposing stricter conditions. Even
accused ready to left the jurisdiction of Nirmal Nagar police station.
5. Prosecution opposed bail claiming that the offence is
serious. There is an attempt to tamper the informant. Ld. APP argued
that the affidavit of informant has been procured by the defence
advocate as he himself filed before the court. Thus, she submitted that
there is no reason to rely upon the affidavit as same is procured by
threatening the informant. If accused released on bail, he would
certainly tamper the prosecution witnesses. She also argued that there
is no reason to disbelieve the case of prosecution merely because there
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is no independent witness. So also, there is no reason to disbelieve the
police witnesses. She thus sought to reject the bail.
6. Having heard both sides at length and having gone through
the chargesheet, it can be seen that no independent witness examined
by the investigating officer. The reason is obvious and clear that the
antecedents of accused and his terror in the vicinity. This reason quoted
by the police cannot be disregarded qua the antecedents of accused and
the informant. As rightly argued by the Ld. APP, there is no reason to
doubt the police witnesses or the case of prosecution for nonexamining
the independent witnesses.
7. The argument that there is delay in arrest appears not
reasonable and too technical to follow. As far as, the seizure panchnama
of knife is concern, same is named as personal search panchanama of
the accused. However, the contents shows that the knife recovered by
the police witnesses from the spot of alleged incident has been
merely/formally seized in the presence of witnesses immediately on
production of accused in the police station. No where said panchanama
speaks that the search of accused was conducted in the police station.
Thus, the argument that the panchanama is falsely prepared despite the
knife was taken out from the accused at the spot of alleged incident
itself is not acceptable.
8. The argument that the informant has been threatened and
thus he filed affidavit cannot be ruled out as same stand has been taken
by the police. When informant himself is not deposing against the
accused, there is possibility that other witnesses, if any, would not turn
out despite rejecting first application.
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9. Therefore, there appears no haste in filing the charge
sheet. Same is the duty of police to investigate the crime, as early as
possible. The law does not contemplate any time limit. Section 167 of
Cr.P.C. prescribes limitation to accrue indefeasible right of bail, in case
investigation not completed within 60/90 days as the case may be.
10. In view of the above facts and circumstances and
considering the possibility of tampering prosecution evidence qua
antecedents of the accused, it is not proper to release accused on bail.
Accordingly, following order is passed :
ORDER
Application stands rejected.
Date – 15.01.2020 ( Sudhir N. Shinde )
Place – Mumbai Metropolitan Magistrate, 32nd Court,
Ssl. Bandra, Mumbai.
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