Bombay High Court
Shaikh Akram Shaikh Aarif @ Ajju ... vs The State Of Maharashtra on 23 November, 2022
Author: N.J.Jamadar
Bench: N.J.Jamadar
Digitally signed by
SWAROOP SWAROOP SHARAD
SHARAD PHADKE
Date: 2022.11.24
PHADKE 19:30:25 +0530
17 aba 3077 of 2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
ANTICIPATORY BAIL APPLICATION NO.3077 OF 2022
Shaikh Akram Shaikh Aarif @ Ajju Lasanwal ... Applicant
versus
The State of Maharashtra ... Respondent
WITH
ANTICIPATORY BAIL APPLICATION NO.3078 OF 2022
Shaikh Akram Shaikh Aarif @ Ajju Lasanwal ... Applicant
versus
The State of Maharashtra ... Respondent
Mr. Sanjeev P. Kadam with Mr. Prashant P. Raul i/by Mr. Mahendra Sandhyanshiv
and Mr. Himanshu Pujari, for Applicant.
Mr. S.V.Gavand, APP, for State.
CORAM: N.J.JAMADAR, J.
DATE : 23rd NOVEMBER, 2022
P.C.
1. The Applicant who is arraigned in C.R.Nos.74 of 2021 and 75 of 2021
registered with Malegaon City Police Station for the offences punishable under
Sections 120B, 307, 353, 332, 143, 144, 147, 148, 149, 427, 186 of the Indian Penal
Code, Sections 3 and 4 of Police (Incitement to Disaffection) Act, 1922, Section 37(1)
(3) read with Section 135 of the Maharashtra Police Act, 1951, Section 3(2) of
Prevention of Damage to Public Property Act, 1984 and Sections 83(2) and 87 of the
Juvenile Justice (Care and Protection of Children) Act, 2015, has preferred these
second Applications for pre-arrest bail.
SSP 1/6
17 aba 3077 of 2022.doc
2. The earlier Applications being Nos.1296 of 2022 and 1297 of 2022 in
connection with C.R.Nos.74 of 2021 and 75 of 2021 were rejected by this Court by an
order dated 11th May, 2022.
3. The indictment against the Applicant and the co-accused is that on 12 th
November, 2021, since morning, people started to assemble at Hussain Seth
Compound, Malegaon, to protest against the alleged atrocities on the members of the
Applicant's community in the State of Tripura and disrespect to the Prophet. The
co-accused Mohd. Yusuf Mohd. Ilyas and his associates and the members of the Raza
Academy allegedly instigated a huge mob of about 2000 persons to march to Shahid
Tower. Eventually, at Dudh Bazar, Old Agra Road, the mob of around 1500 persons
became violent and pelted stones on the government vehicles, damaged public and
private properties and assaulted the police officers/officials resulting in grievous
injuries to many police officers/officials. Mr. Pintya J. Pavara, Police Constable and
Mr. Sureshkumar T. Ghusar, Police Inspector Malegaon City Police Station, thus,
lodged reports with Malegaon Police Station leading to registration of C.R.Nos.74 and
75 of 2021 for the aforesaid offences.
4. Apprehending arrest, the Applicant had initially preferred Applications
for pre-arrest bail before the Court of Session. By an order dated 29 th April, 2022, the
learned Sessions Judge was persuaded to reject the Applications. This Court also
rejected the above numbered Applications for pre-arrest bail holding, inter alia, that
SSP 2/6
17 aba 3077 of 2022.doc
the Applicant and the co-accused therein, were specifically named as the members of
the unlawful assembly. Overt acts were attributed to the Applicant and the co-
Applicants. There were statements of witnesses wherein specific roles were
attributed. This Court further noted that even a person namely Anwar Khan who
tried to reason with the Applicant and the co-applicants was assaulted branding him as
a police sympathizer. It was also noted that few of the police officers/officials had
sustained grievous injuries and valuable public/private properties were damaged.
Resultantly, this Court found that custodial interrogation of the Applicant and the co-
applicants was necessary for effective investigation.
5. It appears the Applicant thereafter again approached the learned
Additional Sessions Judge, for pre-arrest bail. By an order dated 19 th October, 2022,
the learned Sessions Judge, Malegaon, was again persuaded to reject the Application.
6. Mr. Kadam, learned Counsel for the Applicant, would urge that there is
material change in circumstances which justifies reconsideration of the prayer for pre-
arrest bail. Firstly, according to Mr. Kadam, while rejecting earlier applications which
the Applicant had preferred along with co-accused, this Court had taken into account
the role attributed to the co-accused and not the Applicant. If properly considered,
according to Mr. Kadam, the statements of the witnesses recorded under Sections 161
and 164 of the Code of Criminal Procedure, do not at all incriminate the Applicant.
7. Secondly, post rejection of the Applications, this Court has in a series of
SSP 3/6
17 aba 3077 of 2022.doc
applications granted regular bail to a number of co-accused. Inviting attention of the
Court to the orders passed in Bail Application No.1332 of 2022 and connected matters
dated 7th October, 2022 and Bail Application No.1795 of 2022 and connected matters
dated 7th October, 2022, Mr. Kadam submitted that this Court has, inter alia, recorded
that the injuries sustained by the witnesses were simple and the invocation of Section
307 of the Penal Code was debatable.
8. Thirdly, in the charge sheet filed against the co-accused, it is not
mentioned that the Applicant is absconding.
9. Mr. Kadam took pains to take the Court through the statements of
witnesses recorded under Sections 161 and 164 of the Code to bolster up his
submissions.
10. As against this, Mr. Gavand, learned APP submitted that there is no
change in circumstances. Filing of chargesheet against the co-accused does not
constitute a change in circumstance, especially when the Applicant has made himself
scarce. Mr. Gavand submitted that despite diligent efforts the Applicant could not be
traced as the Applicant has been evading arrest. Mr. Gavand further submitted that
specific role has been attributed to the Applicant in the FIRs.
11. I have considered the submissions canvassed across the bar and perused
the material on record. At the outset, it is imperative to note that the allegations are of
serious nature. Police personnel who were trying to maintain law and order were
SSP 4/6
17 aba 3077 of 2022.doc
attacked and public and private properties were damaged by a huge mob. Had it been
a case that the Applicant was merely alleged to be an unknown member of the mob,
without the Applicant being named specifically, different considerations would have
come into play.
12. In FIR No.74 of 2021 lodged by Mr. Pintya J. Pavara, the Applicant has
been named as first of the five persons whom the first informant had known from
before and who, along with other persons, was pelting stones and damaging the public
properties. The Applicant was specifically named as one of the persons who was
indulging in rioting.
13. In FIR No.75 of 2021 the Applicant was named as one of 26 persons
whose identity was established after the images in the CCTV footage were viewed.
Again role of committing rioting along with the named accused and unnamed persons
has been attributed to the Applicant.
14. In the backdrop of the nature of the accusation where police
officers/officials were assaulted and few of them sustained grievous injuries, the fact
that the Applicant had been named in both the FIRs cannot be said to be immaterial.
Indeed in the statements of few of the witnesses, specific role of assault has not been
attributed to the Applicant. However, the setting of the matter cannot be lost sight
of. Likewise, the fact that few of the co-accused were released on regular bail, post
their arrest, by itself, does not constitute a change in circumstance to claim the relief
SSP 5/6
17 aba 3077 of 2022.doc
of pre-arrest bail.
15. For the foregoing reasons, I am not persuaded to exercise discretion in
favour of the Applicant. Hence, the following order :
ORDER
The Applications stand rejected.
( N.J.JAMADAR, J. ) SSP 6/6