JUDGMENT - S.P. KURDUKAR, J.:---Both these petitions under Article 226 of the Constitution of India can be disposed of by this common judgment since they arise out of a common judgment dated December 20, 1991 in Discharge Application No. 171 of 1991 in Tada R.A. No. 52 of 1991. Both the petitioners are challenging legality and correctness of the impugned order. Impugned order is at Exhibit A to the compilation. Compilation taken on record.

2. Pursuant to a complaint dated 31st January, 1991 filed by Jayantilal Nanji of M/s Dedhia Jewellers, at Matunga Police Station, Bombay, Crime No. 113 of 1991 came to be registered against the 6 unknown and unidentified persons for offence punishable under section 395 of the Indian Penal Code read with section 25(3) of the Arms Act. Pursuant to this complaint, investigation commenced and statements of various witnesses came to be recorded. During investigation, suspected accused were also arrested which include the present petitioners. Charge-sheet also came to be filed by the investigating officer in respect of the incident dated 31st January, 1991 in which the petitioner in Criminal Writ Petition No. 223 of 1991 is shown as accused No. 4 whereas applicant in Criminal Application No. 694 of 1992 is shown as accused No. 5. Both these petitioners will be hereinafter referred to as Accused Nos. 4 and 5 respectively.

3. In the complaint lodged with the Matunga Police Station it was alleged that on 31-3-1991 at about 16.30 Hrs. in a business premises known as Dedhia Jewellers, Laxminarayan Lane, Matunga, Bombay 19, a dacoity was committed by 6 unknown persons of the age group of the age group of 25 to 30 years. These 6 persons entered the shop premises, 5 persons were having deadly weapons like chopper in their hands and one person was having revolver. At the point of these deadly weapons, these 6 accused ransacked the business premises of Dedhia Jewellers and thereby committed an offence punishable under section 395 of the I.P.C. read with section 25(3) of the Arms Act. In this incident, the accused are alleged to have ransacked the gold ornaments and cash worth Rs. 58,64,000/-. Details of ornaments and cash amount were also furnished in the compliant. The Matunga Police Station registered the case being C.R. No. 113/91. During investigation suspected accused came to be arrested and as stated earlier, petitioner in Writ Petition No. 223/92 is accused No. 4 whereas applicant in Criminal Application No. 694 of 1992 is accused No. 5. During the investigation property which is subject matter of dacoity was also recovered at the instance of various suspected accused persons. In the proceeding before us, we are concerned, with accused Nos. 4 and 5. Charge sheet submitted by the police in Court relating to these accused persons reads as under :

"THAT THE accused No. 1 to 3 and six absconding accused on the day of 31st January, 1991 between 15.20 Hrs. and 15.35 hrs. at Dedhia Jewellers, Laxminarayan Lane, Matunga, Bombay-19 committed dacoity in respect of 17 kgs. of gold ornaments and cash of Rs. 15,83,500/-by using fire arm and choppers and thereby committed an offence punishable under section 395 I.P.C.

SECONDLY that the accused Nos. 1, 2, 3, and six other absconding accused on the aforesaid day and aforesaid time did commit dacoity in respect of aforesaid ornaments and cash by using deadly weapons to wit, firearm and chopper. Out of them two choppers were recovered, and aid and abeit one another for committing the offence and thereby committed an offence punishable under section 397 of I.PC.

THIRDLY that the accused Nos. 1, 2, 3 and six absconding accused on the aforesaid date and time and aforesaid place did commit dacoity in respect of gold ornaments and cash by using deadly weapons to wit. a fire arm (not recovered) and choppers (out of that two choppers were recovered) and aid and abeit one another for committing the offence and thereby committed an offence punishable under section 398, 34 I.P.C.

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