IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.4449/2019 BETWEEN:
Phillip S/o Kumar Aged about 26 years R/at 9th Cross Kushal Nagar Shampur Main Road Bengaluru – 560 045. ... Petitioner (By Sri. Anees Ali Khan, Advocate) AND:
State by Commercial Street Police Station Bengaluru Represented by The State Public Prosecutor High Court of Karnataka 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 CR.No.119/2016 of Commercial Street Police Station, Bengaluru for the offences punishable under Sections 143, 144, 147, 148, 120(b) and 302 read with Section 149 of IPC.
This Criminal Petition is coming on for Orders, this day, the Court made the following:
O R D E R The present petition has been filed by the petitioner/accused No.5 under Section 439 of Cr.P.C., praying to enlarge him on bail in Crime No.119/2016 (S.C.No.132/2017) of Commercial Street Police Station, Bengaluru for the offences punishable under Sections 143, 144, 147, 148, 120(b) and 302 read with Section 149 of IPC.
2. I have heard the learned counsel for the petitioner/accused No.5 and learned High Court Government Pleader for the respondent-State.
3. The gist of the complaint is that the mother of the deceased is the complainant in this case. She has stated that her younger son-Ilias Shareef was in love with one Fathi, for which, the brothers of said Fathi were opposing. So, they posed life threat that they are going to eliminate him. On 01.10.2016, at 4.00 p.m., the accused persons called the complainant’s son Ilias Shareef to Shivajinagar stating that they want to speak to him and on the same day, at about 5.15 p.m., Ilias Shareef called the complainant over phone and informed that at Shivajinagar, M.K.Street in front of tea stall, accused No.1-Nazeem and his supporters have picked up quarrel with him and he was weeping and immediately, the phone got disconnected. After sometime, Imtiyaz-the elder son of the complainant called her and informed that accused No.1-Nazeem and his supporters committed murder of the younger brother Ilias Shareef and the dead body is in the Bowring hospital. The complainant immediately went to the said hospital and found that her son Ilias Shareef had sustained injury to the head, neck and other parts of the body. On the basis of the said complaint, a case was registered initially against accused Nos.1 to 4 and others.
4. It is the submission of the learned counsel for the petitioner/accused No.5 that already charge sheet has been filed and since 2016, the petitioner/accused No.5 is languishing in jail. There is no material placed by the prosecution to show that the petitioner/accused No.5 is involved in commission of the alleged offence. He further submits that the name of the petitioner/accused No.5 was not found when the first complaint was filed. Subsequently, only when accused No.1 was apprehended, his voluntary statement was recorded, thereafter, the petitioner has been implicated as accused No.5 in the case. It is his further submission that the statement of the witnesses have been recorded after lapse of eight days of the alleged incident. This Court, vide order dated 27.03.2017 and 25.01.2018 had rejected the bail applications filed by the present petitioner. Under similar facts and circumstances, accused No.6 had also approached this Court in Crl.P.No.3066/2018, this Court by its order dated 17.07.2018 has granted bail.
Under such circumstances, on the ground of parity, petitioner/accused no.5 is entitled to be released on bail. He is ready to abide by any of the conditions imposed by this Court and ready to offer sureties. On these grounds, he prayed to allow the petition and release the petitioner/accused No.5 on bail.
5. Per contra, learned High Court Government Pleader for the respondent-State vehemently argued and opposed the application by contending that there are eyewitnesses to the alleged incident. The petitioner/accused No.5 has already approached this Court for two times, this is the third successful bail application and earlier two applications were dismissed on 27.03.2017 and 25.01.2018. There are no changed circumstances to reconsider the bail application. Accused No.5, who assaulted with dragger on the front portion of neck as such, the deceased died due to multiple injuries. Recovery of the said dragger has also been done at the instance of accused No.8. It is further submitted that if the petitioner/accused No.5 is enlarged on bail, he may tamper with the prosecution evidence. On these grounds, he prayed to dismiss the petition.
6. I have carefully and cautiously gone through the contents of the complaint and submission made by the learned counsel for both the parties and perused the records.
7. As could be seen from the statement of CWs.8 and 9, they are alleged eyewitnesses on the side of the prosecution and that their statements have been recorded after lapse of eight days after the incident. There are serious allegations made against accused No.5 for having assaulted the deceased with dragger on front portion of the neck. But the charge sheet material clearly goes to show that even though there are serious overt acts as against accused Nos.4, 6, 7 and 9 also, under similar facts and circumstances they have been already enlarged on bail. On the ground of parity, petitioner/accused No.5 is entitled to be released on bail. Under the said facts and circumstances, this Court is of the opinion that by imposing some stringent conditions if the petitioner/accused No.5 is enlarged on bail, it would meet the ends of justice.
8. Accordingly, Criminal Petition is allowed and petitioner/accused No.5 is ordered to be released on bail in Crime No.119/2016 (S.C.No.132/2017) of Commercial Street Police Station, Bengaluru for the offences punishable under sections 143, 144, 147, 148, 120(b) and 302 read with Section 149 of IPC, subject to the following conditions:-
1. The petitioner/accused No.5 shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs Only) with two sureties for the likesum to the satisfaction of the trial Court.
2. He shall not tamper with the prosecution evidence directly or indirectly.
3. He shall not leave the jurisdiction of the concerned Court without prior permission.
4. He shall be regular in attending the trial on all the dates of hearing.
5. He shall mark his attendance on every first day of the month between 10:00 a.m to 5:00 p.m till the trial is concluded.
6. He shall not indulge in similar type of criminal activities during pendency of the trial.
Sd/- JUDGE NR/-