IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.8837/2018 C/W CRIMINAL PETITION NO.8498/2018 In Crl. P. No.8837/2018 BETWEEN:
Safwan @ Chappu S/o Late Ismail, Aged about 21 years, R/at: Site No.207, D.No.4/50, 4th Block, Krishnapura, Near Badariya Masjid, Katipalla, Mangaluru, D.K. District – 575 105. (By Sri. B. Lethif, Advocate) AND:
The State of Karnataka By Surathkal Police Station, D.K. Mangaluru, Rep. by SPP, High Court Building, Bengaluru – 560 001.
(By Smt. Namitha Mahesh B.G., HCGP) ...Petitioner ...Respondent In Crl. P. No.8498/2018 BETWEEN:
Mohammed Nawaz @ Pinki Nawaz, S/o Late Mayyadi, Aged about 23 years, R/at: 7th Block, Krishnapura, Katipalla, Mangaluru Taluk, D.K. District – 575 105. (By Sri. B. Lethif, Advocate) AND:
The State of Karnataka By Surathkal Police Station, D.K. Mangaluru, Rep. by SPP, High Court Building, Bengaluru – 560 001.
(By Smt. Namitha Mahesh B.G., HCGP) ...Petitioner ...Respondent These Criminal Petitions are filed under Section 439 of the Code of the Criminal Procedure Code praying to enlarge the petitioners on bail in Cr.No.2/2018 of Surathkal Police Station, Mangaluru City for the offence punishable under Sections 341, 302, 120B read with 34 of IPC.
These Criminal Petitions coming on for Orders, this day, the Court made the following:
O R D E R Criminal Petition No.8837/2018 has been filed by petitioner-accused No.13 and Criminal Petition No.8498/2018 has been filed by petitioner-accused No.1 under Section 439 of Cr.P.C. release them on bail in Crime No.2/2018 of Surathkal Police Station for the offences punishable under Sections 341, 302, 120(B) read with Section 34 of IPC.
2. I have heard the learned counsel for the petitioner and the learned High Court Government Pleader for respondent-State.
3. Gist of the complaint is that on 03.01.2018, the complainant was working as Assistant Manager at MRPL Power Net at about 1.55 p.m., the complainant got an information that Deepak got assaulted brutally by unknown persons near his working place and he went along with his friend to the place near the house of the owner Abdul Majeed, there was a huge gathering of public and found blood stains on the spot. After coming to know the said fact, he enquired and there he came to know that on the same day at about 1.15 p.m., the deceased-Deepak came on his motorbike bearing No.KA- 19-EH-6518 and reached near the house of Majeed. At that point of time, a white colour Car came and four persons alighted from the said car and assaulted with deadly weapons and ran away towards Katipalla. On such assault, deceased-Deepak died. On the basis of the complaint, a case was registered and after the investigation, chargesheet has been filed.
4. It is the submission of the learned counsel for the petitioner that at the first instance, a complaint was registered against only four unknown persons. Subsequently, a chargesheet has been filed against 13 persons. He further submitted that as per charge sheet material CWs.2 and 3 are the eye witnesses. Their statement discloses that even though they have witnessed the incident but they did not inform the same to anybody immediately after the alleged incident. He further submitted that the test identification parade has taken place after two months that too, after names and photos have been published in the newspaper. He further submitted that recovery has been done after two months of the arrest of the accused persons that too in a police station. He further submitted that the only allegations as against the petitioner-accused No.13 is that he was a member of conspiracy and the conspiracy has been held three days prior to the alleged incident. The said fact has to be tested during the course of trial. He further submitted that already accused Nos.6, 5 to 12 have been released on bail even on the ground of parity petitioner-accused Nos.1 and 13 are entitled to be released on bail. He further submits that insofar as petitioner-accused No.1 is concerned, there are no overt-act and that he has not involved in the alleged commission of offence and they are ready to abide any of the conditions imposed on them by this Court and ready to offer sureties. On these grounds, he prayed to allow the petition and to release the petitioner-accused Nos.13 and 1 on bail.
5. Per contra, it is the submission of learned HCGP that accused No.1 is the main perpetrator of the alleged crime and he hatched a plan and it caused communal clash, he conspired with other accused persons to eliminate the Hindu community leader and they committed murder of the deceased. She further submitted that police have chased the accused persons on the spot and at that time accused No.2 has been apprehended and even the accused persons tried to attack on the police. She further submitted that long and other weapons have been seized at spot of crime. CWs.2 and 3 are the eye witnesses to the alleged incident and even there is direct material to show the involvement of accused persons which is punishable with death or imprisonment for life. She further submitted that statement under Section 164 of Cr.PC has also been recorded and the owner of the car has also stated that it is accused No.6 who secured the car along with accused No.13. She further submitted that there are as many as four cases against accused No.1. He is having criminal antecedents. If he is released on bail, he may indulge in similar type of criminal activities. She further submitted that there are as many as 56 injuries over the body of the deceased and that itself clearly goes to show the heinousness of the offence of murder committed by the accused persons. She further submitted that the ground of parity is not applicable to the present facts of the case on any of accused Nos.13 and 1. On these grounds, she prayed to dismiss the petition.
6. I have carefully and cautiously gone through the contents of the complaint and other materials and submission made by learned counsel appearing for the parties.
7. As could be seen from the contents of the complaint on 03.01.2018, while the deceased-Deepak was returning to shop at about 1.15 P.M., accused Nos.1 to 4 intercepted his motor cycle and accused Nos.1 to 4 indiscriminately assaulted the deceased with talwars, causing his instantaneous death.
8. On going through the materials, it discloses the fact that CWs.2 and 3 are the eye witnesses to the alleged incident and even the weapons have also been seized on the spot. Though it is the contention of the learned counsel for the petitioner that CWs.2 and 3 are not the eye witnesses to the alleged incident as they have not informed about the incident to anybody as per the statement made. They cannot be treated as eye witnesses cannot be considered at this juncture. This matter has to be considered and appreciated only at the time of trial but not at premature stage. When there are eye witnesses to the alleged incident to the effect that accused Nos.1 to 4 have brutally assaulted and caused death of deceased-Deepak then under such circumstances, ground of parity cannot be exercised insofar as accused No.1 is concerned.
9. As could be seen from the material produced insofar as accused No.13 is concerned the only allegations made against them is that they have conspired with accused persons it is accused No.13 who secured the car and abetted the commission of the offence but actually he is not involved in any assault or any overt-act has been mentioned in his behalf. Under the similar facts and circumstances, accused Nos.6, 5 and other accused persons have been released on bail.
In that light, accused No.13 has made out a case to release him on bail.
10. Before this order was released, the learned HCGP brought to the notice of this Court that number of communal incidents and criminal cases have occurred, there is Lok Sabha Elections, 2019 and in that area it may create communal tensions and disturbances. As such, she prays to incorporate some more conditions. On the contrary, the learned counsel for the petitioner-accused No.13 submitted that in other cases no such conditions have been imposed, it violates Article 14 and 21 of the Constitution. He prays to impose same conditions. After considering the above said submissions, I feel that if an externment order is passed after declaration of elections till elections are over it will meet the ends of justice. Depending upon peculiar facts and circumstances, the Court can impose different conditions to each of the accused separately.
11. Taking into consideration the above facts and circumstances, Criminal Petition No.8498/2018 is dismissed as there are no grounds to release the petitioner-accused No.1 on bail. In so far as Criminal Petition No.8837/2018 is concerned, the same is allowed. Petitioner/accused No.13 is ordered to be released on bail in Crime No.2/2018 of Surathkal Police Station for the offences punishable under Sections 341, 302 and 120B read with Section 34 of IPC subject to the following conditions:
1. Petitioner/accused No.13 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 appear before the Court regularly till the trial is concluded.
3. He shall not threaten or tamper with the prosecution evidence in any manner.
4. He shall not enter the said place of incident after declaration of Lok Sabha elections till they are over.
5. He shall not leave the jurisdiction of the Court without prior permission.
6. He shall not indulge in similar type of activities.
7. He shall mark his attendance once in 15 days between 10.00 a.m., to 5.00 p.m., before the jurisdictional police till the trial is concluded.
Sd/- JUDGE UN