IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE B.A. PATIL CRIMINAL PETITION NO.3595/2019 C/W CRIMINAL PETITION NO.3596/2019, CRIMINAL PETITION NO.3332/2019 CRIMINAL PETITION NO.3595/2019 BETWEEN:
Nawfal @ Dealnowfal S/o Abdul Kareem Aged about 26 years R/at Jamas Flate 1st Floor, Borugudde Kannur Village and Post Mangaluru Taluk D.K.District – 575 232. …Petitioner (By Sri. B. Lethif, Advocate) AND The State of Karnataka By Bantwal Rural Police Station D.K. District Represented by State Public Prosecutor High Court building Bengaluru – 560 001. …Respondent (By Sri. K. Nageshwarappa, HCGP) This Criminal Petition is filed under Section 439 of Cr.P.C. praying to enlarge the petitioner on bail in the event of his arrest in Cr.No.296/2017 of Bantwala Rural Police Station, D.K.District for the offence punishable under Sections 143, 147, 148, 341, 427, 324, 326, 307, 302 and 120B read with 149 of IPC. CRIMINAL PETITION NO.3596/2019 BETWEEN:
Thaslim S/o Hammabba Aged about 26 years R/at Ammemmar House Pudu Village, Bantwala Taluk D.K.District – 574 222. …Petitioner (By Sri. B. Lethif, Advocate) AND The State of Karnataka By Bantwal Rural Police Station D.K.District Represented by State Public Prosecutor High Court building Bengaluru – 560 001. …Respondent (By Sri. K. Nageshwarappa, HCGP) This Criminal Petition is filed under Section 439 of Cr.P.C. praying to enlarge the petitioner on bail in the event of his arrest in Cr.No.296/2017 of Bantwala Rural Police Station, D.K.District for the offence punishable under Sections 143, 147, 148, 341, 427, 324, 326, 307, 302 and 120B read with 149 of IPC.
CRIMINAL PETITION NO.3332/2019 BETWEEN:
Jabbar @ Abdul Jabbar S/o Abdul Khadar Aged about 42 years R/at 2-746/6A Sujeer Badigudde House Pudu Post and Village Bantwal Taluk D.K.District – 574 222. …Petitioner (By Sri. Pratheep K.C., Advocate) AND The State of Karnataka By Bantwal Rural Police Station D.K.District Represented by State Public Prosecutor High Court building Bengaluru – 560 001. …Respondent (By Sri. K. Nageshwarappa, HCGP) This Criminal Petition is filed under Section 438 of Cr.P.C. praying to enlarge the petitioner on bail in Cr.No.296/2017 of Bantwala Rural Police Station, D.K.District for the offence punishable under Sections 143, 147, 148, 341, 427, 324, 326, 307, 302 and 120B read with 149 of IPC.
These Criminal Petitions are coming on for Orders, this day, the Court made the following:
ORDER Criminal Petition No.3595/2019 has been filed by the petitioner/accused No.5, Criminal Petition No.3596/2019 has been filed by the petitioner/accused No.11 under Section 439 of Cr.P.C. and Criminal Petition No. 3332/2019 has been filed by the petitioner/accused No.13 under Section 438 of Cr.P.C. to enlarge them on bail and anticipatory bail respectively in CR.No.296/2017 of Bantwala Rural Police Station for the offence punishable under Sections 143, 147, 148, 341, 427, 324, 326, 307, 302, 120B read with 149 of IPC.
2. I have heard learned counsel for the petitioners and learned High Court Government Pleader for the respondent-State.
3. The gist of the complaint is that the complainant was working as a loader in a Cargo at Goa. On 25.09.2017 at about 10.00 a.m., one Appi of Maripalla called the complainant and informed that Panjyothi side persons attacked the Appi and same was informed to Zia. It is further alleged that immediately, one Fayaz, in his rented Swift car along with the complainant, Mustaq, Anees, Chammu, Afzal and Zia went towards Maripalla at about 10.45 p.m., they reached near Parangipete Police Station and at that time, one Innova Car came and stopped in front of the Swift car in which the complainant was proceeding and found one Noufal Faizalnagar, Noufal Kannur, Ammi Kannur, Munna Faizalnagara, Arshad Faizalnagara and Saddam and they were having deadly weapons and attacked the car driver-Faizal and inmate Zia on their heads and other parts of their body. At that time, the complainant, Mustaq, Anees, Chammu, Afzal tried to escape from the said place and one Mustaq and Anees assaulted them with an intention to murder and caused grievous injuries. It is further alleged that among one, Chammu was not seen by the complainant and Afzal got injuries to his leg. It is further alleged that there was an injury to his hand from the broken car glasses. At that point of time, public gathered and the accused persons escaped from the spot and a case has been registered in this behalf.
4. It is the submission of the learned counsel for the petitioner/accused No.11 that earlier he has approached this Court in Crl.P.No.5607/2018 and the said petition was got withdrawn by the petitioner with a liberty to file a fresh petition. It is further submitted that already in similar facts and circumstances, accused Nos.3, 4, 6 to 9 and 12 have been granted bail, on the ground of parity, petitioners/accused Nos.5, 11 and 13 are also entitled to be released on bail. Already charge sheet has been filed and there is no specific overt-act as alleged against each of the petitioners/accused Nos.5, 11 and 13. There is no incriminating material as against petitioners/accused. Since, more than two years the petitioners/accused persons are in custody and accused/petitioners are not required for further investigation or interrogation. It is his further submission that the trial is not yet been fixed and it may take some more time for disposal of main cases.
5. It is further submitted that the petitioners- accused have not assaulted with any deadly weapons and they are ready to abide by any conditions imposed by this Court and ready to offer sureties. On these grounds, he prayed to allow the petition and release him on bail.
6. It is submission of the learned counsel for the petitioner/accused No.13 that now other accused persons have been granted bail under the changed circumstances the second petition has been filed by petitioner/accused No.13. The only allegation as against petitioner/accused No.13 is that he is only a part of conspiracy, even he was not found on the place of alleged incident. His statement has been recorded after two months of the incident. He has only made financial assistance to the accused persons. He further submitted that the petitioner/accused No.13 is ready to abide by any conditions imposed by this Court and ready to offer sureties. On these grounds, he prayed to allow the petition and release him on bail.
7. Per contra, learned High Court Government Pleader vehemently argued and submitted that earlier, petitioner/accused Nos.11 and 13 have approached this Court and this Court after considering the materials placed on record has dismissed the petition. No new grounds have been made out to release them on bail.
8. It is further submitted that the statement of witness clearly indicates that the petitioners/accused Nos.5, 11 and 13 along with other accused persons have participated in the said crime and it is the accused No.13 who is considered to be the main conspirator and he is the master mind behind the alleged incident where two murders have taken place. It is his further submission that petitioner/accused No.13 has not made out new grounds and only on the ground that the other accused persons have been granted bail, is not a ground to again grant the anticipatory bail. If the present accused persons released on bail, they may tamper with the prosecution evidence, they may abscond and they may not be available for trail.
9. It is further submitted that there are injured witnesses and they have also categorically stated about the overt-acts of each of the accused persons. On these grounds, he prayed to dismiss the petition.
10. I have cautiously and carefully gone through the contents of the complaint and submission made by the learned counsel for both the parties and perused the records.
11. It is undisputed fact that already this Court in Crl.P.No.9562/2018, Crl.P.No.8989/2018 c/w Crl.P.No.
1178/2019 and Crl.P.No.8875/2018 c/w Crl.P.No.8497/2018 has granted bail to accused Nos.3, 4, 6, 7, 12, 8 and 9. On close reading of contents of the complaint, it would indicate that the alleged incident has taken place on 25.09.2017 at about 10.00 p.m. and initially the complaint has been registered against ten accused persons and subsequently, name of other accused persons have been incorporated. As could be seen from the contents of the compliant that there is no specific overt-acts or participation in so far accused Nos.5 and 11 are concerned. Under similar facts and circumstances, this Court as quoted supra has released on bail other accused. On the ground of parity, accused No.5 and 11 are entitled to be released on bail. But however, as could be seen from the records, accused No.13 approached this Court in Crl.p.No.8875/2018 and therein this Court has already observed that he was also the member of unlawful assembly and records and statement of witnesses discloses the fact that he is a conspirator and he is the master mind of the commission of the alleged offence. Though he has not participated in the alleged crime, there is material to show that his master mind behind the offence, he is absconding from the date of registration of the case and he is not available for investigation or interrogation.
12. Under such circumstances, I feel that it is not fit case to exercise the power under Section 438 of Cr.P.C. to enlarge the petitioner/accused No.13 on bail. Accordingly, Crl.P.No.3332/2019 is dismissed. However, liberty is given to him if he surrenders and apply for a regular bail, the matter may be considered in accordance with law.
13. In so far Crl.P.No.3595/2019 and Crl.P.No.3596/2019 are concerned petitions are allowed. The petitioners/accused Nos.5 and 11 are enlarged on bail in Crime No.296/2017 of Bantwala Rural Police Station for the offences punishable under Sections 143, 147, 148, 341, 427, 324, 326, 307, 302, 120B read with 149 of IPC, subject to the following conditions:
1. Petitioners/accused Nos.5 and 11 shall execute a personal bond for a sum of Rs.2,00,000/-(Rupees Two lakhs only) each with two sureties each for the likesum to the satisfaction of the trial Court.
2. They shall not leave the jurisdiction of the Court without prior permission.
3. They shall not tamper with the prosecution evidence directly or indirectly.
4. They shall be regular in attending the Court as and when the case may be called out.
5. They shall not indulge in similar type of criminal activities.
Sd/- JUDGE BVK/NR