IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF OCTOBER 2019 BEFORE THE HON’BLE MR. JUSTICE K.N.PHANEENDRA CRIMINAL PETITION NO.6541 OF 2019 BETWEEN:
GADDAR @ GUMMADI VITTAL S/O.GUMMADI SHESHAIAH AGED ABOUT 73 YEARS R/AT DOOR NO.1-23-125/1 JANAMPATA NEAR POCHAMMA TEMPLE BHUDEVI NAGAR VENKATAPURAM SIKANDARABAD TELANGANA-500 015 …PETITIONER (BY SRI HANUMANTHARAYA C.H., ADVOCATE) AND:
STATE OF KARNATAKA BY THIRUMANI POLICE STATION REP. BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU-560 001 …RESPONDENT (BY SRI ROHITH B.J., HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 438 OF CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON ANTICIPATORY BAIL IN THE EVENT OF HIS ARREST IN CC.NO.360/2019 (CRIME NO.07/2005) FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 143, 144, 147, 148, 307, 302, 353, 396, 332, 333, 109, 120, 121, 121(A), 121(B) READ WITH SECTION 149 OF IPC AND SECTIONS 3, 4 AND 5 OF THE PROHIBITION OF EXPLOSIVE MATERIAL ACT, NOW PENDING ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC COURT, PAVAGADA TALUK, TUMKUR DISTRICT.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard the learned counsel for the petitioner and the learned HCGP for the respondent-State. Perused the records.
2. The petitioner is arraigned as accused No.11 in the charge sheet filed by the respondent-Police in CC.No.360/2019. Though, the first information report was registered in Crime No.7/2005 for the offences punishable under Sections 143, 144, 147, 148, 307, 302, 396, 353, 120, 121, 121A, 120B, 109, 332, 333 read with Section 149 of IPC, Sections 3, 4 and 5 of the Prohibition of Explosive Substances Act and Sections 10 and 13 of the Prevention of Unlawful Activities (Prevention) Act, 1967, but ultimately the Police have filed the charge sheet against as many as 19 accused persons which later culminated after committal proceedings in SC.No.1/2016 and the remaining accused persons were shown as absconding. The petitioner though arraigned as accused No.11 in the charge sheet, he was not sent for trial because he was also shown as an absconding accused.
3. The factual matrix of the case is that on 10.02.2005 at about 10.30 p.m. in Venkatammanahalli village of Pavagada Taluk, the accused persons who are the members of naxalite group armed with rifles, country bombs, carrier bombs, hand grenades, country pistols and also having the facilities of wireless etc. formed into an unlawful assembly and on abetment of accused Nos.11 and 12, they attacked the Police personnel, KSRP battalion who were campaigning at Venkatammanahalli village and in fact blasted bombs and shot at the Police personnel who were at the camp resulted in so many deaths and injuries to the Police personnel.
4. On the above said allegations, about 19 accused persons were tried by the trial Court, and vide judgment dated 29.10.2011 in SC.No.31/2006, the accused persons were acquitted. Subsequently, it appears a split up charge sheet has been registered against the petitioner in CC.No.360/2019 for the above said offences.
5. The petitioner approached the Sessions Court for grant of anticipatory bail on the ground that no prima facie case has been made out against him. Even considering the charge sheet as well as the judgment rendered by the trial Court, he failed to get the bail order. Hence, he is before this Court.
6. Sri C.H.Hanumantharaya, learned counsel for the petitioner brought to my notice the charges framed by the trial Court incorporating even the names of accused Nos.11 and 12 as they are the abettors of the crime and on the basis of the abetment by accused Nos.11 and 12, the other accused persons have actually formed into an unlawful assembly with deadly weapons and attacked the Police personnel.
7. It is trite to say here that the common allegations have been made in the charges leveled against the accused persons and also the petitioner, who is said to be an abettor of the crime. The trial Court, in fact, has passed a very lengthy judgment and it has discussed at paragraphs 329 and 330 with regard to the allegations made against the petitioner. It has specifically stated that on careful scrutiny and appreciation of entire evidence adduced by the prosecution, there was absolutely no evidence worth consideration to prove that accused Nos.11 and 12 in the charge sheet had abetted the commission of the offences. Moreover, it is also observed that accused Nos.11 and 12 were not arrested even though sufficient opportunity was there to PW.112.
8. Looking to the above said facts and circumstances, there must be a strong prima facie material available against the petitioner in order to reject the bail. The existence of prima facie case is a harbinger to the criminal case. If no prima facie case is available, as a matter of right, the accused is entitled to be enlarged on bail. If prima facie case is available, then the Court has to look into the other circumstances whether the petitioner is readily available to the trial and whether he has got any root in the society and all other conditions prevailing for the purpose of granting of bail.
9. In this particular case, as could be seen from the charge sheet and in judgment of the trial Court, the trial Court considering the allegations made against the petitioner, has categorically held that there was absolutely no evidence to establish the same. Therefore, it cannot be said that the prosecution has got a strong unbeatable prima facie case against the petitioner so as to refuse the grant of bail.
10. Under the above said circumstances, in my opinion, the petitioner is entitled to be enlarged on bail on certain conditions. Hence, the following:
O R D E R The petition is allowed. Consequently, the petitioner (accused No.11) shall be released on bail in the event of his arrest in connection with CC.No.360/2019 (Crime No.07/2005) of Thirumani Police Station, Pavagada Taluk, Tumkuru District subject to the on following conditions:-
i) The petitioner shall surrender himself before the Investigating Officer within Ten days from the date of receipt of a certified copy of this order and he shall execute personal bond for a sum of Rs.1,00,000/- (Rupees One Lakh Only) with two sureties for the like-sum to the satisfaction of the concerned Jurisdictional Court;
ii) The petitioner shall not indulge in tampering the prosecution witnesses;
iii) The Petitioner shall appear before the Court on all the future hearing dates unless exempted from the Court for any genuine grounds; & iv) The Petitioner shall not leave the country without prior permission of the jurisdictional Court till the case registered against him is disposed of.
Sd/- JUDGE LB