Bombay High Court
Mahmood Khan S/O. Wasal Khan Pathan And ... vs The State Of Maharashtra on 19 September, 2018
Author: V. K. Jadhav
Bench: V. K. Jadhav
921-ABA-933-18
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
921 ANTICIPATORY BAIL APPLICATION NO. 933 OF 2018
WITH APPLN/2633/2018 IN ABA/933/2018
1. MAHMOOD KHAN S/O. WASAL KHAN PATHAN
2. MUSTAK KHAN S/O WASAL KHAN PATHAN
3. SHARUKH KHAN S/O MAHEMOOD KHAN PATHAN
4. SAJOBEE @ SAJEEDABANU W/O MUSTAK KAHAN
5. SHAHEDABEE W/O MAHEMOOD KHAN
VERSUS
THE STATE OF MAHARASHTRA
.....
Advocate for Applicants : Mr. Ghanekar Nilesh S.
APP for Respondent-State : Mr. P. K. Lakhotia
Advocate to assist the APP : Mr. Tungar H. V. & Mr. Pawar H. B.
.....
CORAM : V. K. JADHAV, J.
DATED : 19th SEPTEMBER, 2018
PER COURT:-
1. Heard the learned counsel appearing for the applicant in
criminal application no. 2633 of 2018. For the reasons stated in the
application, the same is allowed in terms of prayer clause "C" and
disposed of accordingly.
2. The applicants in anticipatory bail application no. 933 of
2018 are seeking pre-arrest bail in connection with crime no. 56 of
2018 registered with Tamsa Police Station, Nanded for the offences
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punishable under Sections 302, 498(A), 323, 504, 506, 34 of IPC
and under Sections 3 and 4 of the Maharashtra Prevention and
Eradication of Human Sacrifice and other Inhuman, Evil and
Aghori Practices and Black Magic Act, 2013 (for short, "the Act of
2013"). Their application with similar prayer bearing Misc.
Criminal Bail Application No. 541 of 2018 came to be rejected by
the Additional Sessions Judge-2, Nanded by order dated
14.08.2018.
3. Learned counsel for the applicants submits that the
allegations in the complaint as against the present applicants are
restricted to the extent of the offence punishable under Section
498-A of IPC and under the provisions of the Act of 2013 as against
applicant no.5 Shahedabee. Learned counsel submits that marriage
of the deceased with co-accused Nazir was performed way back in
the year 2011. In view of the same, even the presumption under
Section 113A of the Indian Evidence Act is also not attracted in the
present case. learned counsel submits that there is hardly any
evidence against the applicants so as to connect them with the
alleged crime of commission murder. Learned counsel submits that
even the death is not stated as homicidal one in the postmortem
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report. Learned counsel submits that the applicants are entitled to
be released on pre-arrest bail. Co-accused Nazir, who is husband of
the deceased, is under custody and he is not released on bail.
4. Learned APP, assisted by Advocate Mr. Tungar and Advocate
Mr. Pawar, has strongly resisted the application on the ground that
names of the applicants are specifically mentioned in the FIR and it
has been specifically alleged in the complaint that the applicants
were demanding certain amount for various purposes and deceased
was subjected to ill-treatment on account of non-fulfillment of the
said demand. Even the applicant - Shahedabee was pretending
about certain black magic administered by the deceased and
therefore, the deceased was subjected to ill-treatment by the
applicants on that count also. Learned APP submits that custodial
interrogation of the applicants is required.
5. On careful perusal of the contents of FIR and also the
investigation papers, I find that so far as the charge under Section
302 of IPC is concerned, there is hardly any evidence to attract the
said provision. The cause of death as explained in the postmortem
report does not say positively about homicidal death. Though there
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are certain allegation against the applicants with respect to cruelty
as defined under Section 498-A of IPC and against applicant no.5
with respect to the provisions under the Act of 2013, the
allegations are vague in nature. Thus, by imposing certain
conditions, the applicants are entitled for pre-arrest bail. Hence,
the following order:
ORDER
I. The anticipatory bail application is hereby allowed.
II. In the event of arrest of applicant nos. 1 to 5 i.e. Mahmood Khan s/o Wasal Khan Pathan, Mustak Khan s/o Wasal Khan Pathan, Sharukh Khan s/o Mahemood Khan Pathan, Sajobee @ Sajeedabanu w/o Mustak Khan and Shahedabee w/o Mahemood Khan Pathan in connection with crime no. 56 of 2018 registered with Tamsa Police Station, Nanded for the offences punishable under Sections 302, 498(A), 323, 504, 506, 34 of IPC and under Sections 3 and 4 of the Maharashtra Prevention and Eradication of Human Sacrifice and other Inhuman, Evil and Aghori Practices and Black Magic Act, 2013, they be released on bail on their furnishing P.B. of Rs.15,000/- each with one surety each of the like amount on the following conditions;
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b. Applicant nos. 1, 2 and 3 shall attend the concerned police station once in a week on every Sunday between 8.00 am to 11.00 am till filing of charge sheet.
c. Applicant nos 4 and 5 shall make themselves available for further investigation, if any, as and when required by the Investigating Officer.
III. Criminal application is disposed of accordingly.
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