IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE B.A. PATIL CRIMINAL PETITION NO.7750/2019 BETWEEN:
MR.MASOOD KHAN @ GIDDA MASOOD, S/O *WAZEER KHAN, AGED ABOUT 21 YEARS, R/AT NO.7TH CROSS (LEFT SIDE), TIPPUNAGAR, SHIVAMOGGA – 577 205.
...PETITIONER (BY SRI.PRASHANTH H.S., ADVOCATE) AND:
THE STATE BY ITS DODDA PETE POLICE STATION, DODDAPETE, SHIVAMOGGA. REPRESENTED BY S.P.P., HIGH COURT BUILDING COMPLEX, AMBEDKAR BEEDI, BENGALURU – 01.
…RESPONDENT (BY SRI.M.DIWAKAR MADDUR, HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.410/2018 (SPL.C.C.NO.893/2018) OF * Corrected vide Chamber order dated 10.01.2020 DODDAPETE P.S., SHIVAMOGGA FOR THE OFFENCE P/U/S 143, 147, 384, 511, 307, 120B, 114, 109 READ WITH 149 OF IPC SECTION 25 AND 27 OF INDIAN ARMS ACT AND SECTION 3 OF KCOCA ACT.
THIS CRIMINAL PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This petition is filed under Section 439 of Cr.P.C. by the petitioner – accused No.7 seeking to enlarge him on bail in crime No.410/2018 (Spl.C.C.No.893/2018) registered by Doddapete Police Station, Shivamogga, for the offences punishable under Sections 143, 147, 384, 511, 307, 120-B, 114, 109 r/w. 149 of IPC, Sections 25 and 27 of Indian Arms Act, 1959 and Section 3 of the Karnataka Control Of Organised Crime Act, 2000 (hereinafter referred to as ‘the KCOCA Act’).
2. I have heard the learned counsel for the petitioner – accused No.7 and the learned High Court Government Pleader for respondent - State.
3. The case of the prosecution is that one Khalim Pasha filed a complaint on 4.6.2018 stating that he is into real estate business. He received a mobile call from mobile phone number 8747069459. The caller introduced himself as Jabbu from Tumkur and informed that some persons from Shivamogga have given supari to kill him and they have also given the photo and his mobile number. He further informed that his boys are staying at Bhadravathi and they will come to his house at about 10.00 a.m. He also demanded an amount of Rs.20 lakhs, for which the complainant told that he is ready to pay the amount. Thereafter, the complainant did not receive any calls and as such, he kept quiet. It is further case of the prosecution that one month after receipt of the said call, again he received a call demanding money and thereafter, the phone call was disconnected. Three days thereafter, again complainant received a call and the caller started asking whereabouts of the complainant and further told him to come near Gopalapuradal Road. It is further case of the prosecution that on the next day, again he received a call and the said person abused and threatened the complainant with dire consequences and thereafter, disconnected the phone call. It is further case of the prosecution that after four days, at about 7.30 p.m. complainant’s friend Abdul Rub’s car was parked in front of his house. At that time, some unknown persons came and damaged the glass of the said car and in that context, a complaint has been filed before Doddapete Police. It is further case of the prosecution, that on 3.6.2018, at about 9.40 p.m., the complainant received a call to his number 9900601406 from mobile number 7624899969 and the caller introduced himself as Mujju and told the complainant to come near Ayodhya Hotel to which complainant told that he is in Bengaluru and at that time, phone call was disconnected. After 15 minutes, again he received the phone call and the said person told him that his guys are following him, they are also watching his movements and they are going to enter his house and the phone call was disconnected. It is further case of the prosecution that at about 12.00 p.m., in the midnight, the complainant slept and at about 4.00 a.m. when he woke up for having food as he was fasting in Ramzan month, at about 4.40 a.m., from the same mobile number i.e., 7624899969, the complainant received a call and the said person asked his whereabouts, to which the complainant replied that he has to go to Mosque for namaz; the called told him that he will not go to Mosque but he will be going to some other place and so also he told to peep from the widow. By hearing the same, the complainant peeped through the window to see as to whether anybody was there but he did not find anybody outside the house. Thereafter, he opened the door. Immediately, two persons came on a motorbike covering the face with towel and fired towards the complainant. The said bullet hit to the gate and immediately complainant closed the gate and rushed inside the house. Thereafter, he received a call that today he has escaped but if money is not paid, next time they would finish him. On the basis of the said complaint, a case has been registered in the above said crime.
4. Learned counsel for the petitioner – accused No.7 submitted that the name of the petitioner was not found in the complainant or FIR. It is further submitted that accused Nos.1 to 4 and 10 approached this Court in Crl.P.No.5816/2019 and this Court by order dated 21.10.2019 has allowed the said petition. Subsequently, after the disposal of the petition, the present petitioner – accused No.7 has filed the petition to enlarge him on bail . On the ground of parity, petitioner – accused No.7 is also entitled to be released on bail. It is his further submission that already the charge sheet has been filed and only allegation made in the charge sheet is that, the motorcycle belonging to accused No.7 has been given to accused Nos.1 and 2 and they have used for the purpose of commission of the offences and conspiracy has been alleged against him. But there are no ample material to connect the petitioner - accused No.7 to the alleged crime.
It is his further submission that it is the first case which has been filed against the accused and he cannot be attributed to the alleged crime as he is the member of the organised crime and the provisions of the KCOCA Act cannot be invoked as against the petitioner – accused No.7. It is his further submission that the major offence punishable under Section is 307 of IPC and the said offence is not punishable with death or imprisonment for life. It is his submission that to attract the provisions of Section 307 of IPC the prosecution has to establish the same only at the time of the trial. He further submitted that the petitioner is ready to abide by the conditions to be imposed by this Court and also offer the surety. On these grounds, he prayed to allow the petition.
5. Per contra, learned High Court Government Pleader vehemently argued and submitted that the petitioner - accused No.7 is an habitual offender and he is involved in 15 cases. He is a member of organized crime and there is lot of incriminating materials as against the accused to show that he is conspired with the accused persons. It is further submission that the petitioner – accused No.7 is enlarged on bail, he may again indulge in similar kind of criminal activities and there are already many cases pending against him. On these grounds, he pray to dismiss the petition.
6. I have carefully and cautiously considered the submissions of the learned counsel for the petitioner and learned Government Pleader and perused the records.
7. On going through the records, it indicate that earlier, accused Nos.1 to 4 and 10 have approached this Court and this Court taking into consideration about the applicability of KCOCA Act has come to conclusion and held that it is very difficult to draw any inference that there is an organized crime committed by the accused persons, therefore, the commission of KCOCA Act is doubtful, the same has to be established beyond reasonable doubt during the course of full dressed trial and by vide order dated 21.10.2019, granted bail to the said accused. In view of the fact that the offences alleged are not punishable with death or imprisonment for life, I am of the considered opinion that the only allegation made against petitioner - accused No.7 is that he has conspired with other accused persons and he has delivered his motorbike to accused Nos.1 and 2. Though it is not considered to be a serious allegation as against the petitioner – accused No.7 is concerned and even on the ground of parity also, the petitioner is entitled for bail.
8. In that light, petition is allowed. The petitioner – accused No.7 is enlarged on bail in crime No.410/2018 (Spl.C.C.No.893/2018) registered by Doddapete Police Station, Shivamogga, for the offences punishable under Sections 143, 147, 384, 511, 307, 120-B, 114, 109 r/w.
149 of IPC, Sections 25 and 27 of Indian Arms Act, 1959 and Section 3 of the KCOCA Act, subject to the following conditions:-
i) Petitioner shall execute a personal bond for Rs.2,00,000/- (Rupees Two Lakhs only) with two local sureties for the likesum to the satisfaction of the jurisdictional Court.
ii) He shall not tamper with the prosecution evidence in any manner till the disposal of the case.
iii) He shall not leave the jurisdiction of the Court without prior permission.
iv) He shall be regular in appearing before the Court till the trial is concluded v) He shall mark his attendance once in fifteen days before Doddapete Police Station between the office hours of 10.00 a.m. and 5.00 p.m. till the trial is concluded.
vi) He shall not indulge in similar kind of criminal activities, failing which, the trial Court is at liberty to take the petitioner into custody.
Sd/- JUDGE nvj