IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.9614 OF 2018 BETWEEN:
Sri.Abhin Rai @ Abhi S/o Ashok Raj, Aged about 23 years R/at Sri Sai Nivasa Mundadka House Thenkabelluru Village Bantwal Taluk PIN-574 169. ...Petitioner (By Sri.Aruna Shyam.M, Advocate) AND:
The State of Karnataka Through Bantwal Town Police Station Represented by its State Pubic Prosecutor, High Court of Karnataka, Bengaluru-560001 ...Respondent (By SriK.P.Yoganna, HCGP) This Criminal Petition is filed under Section 439 of the Code of the Criminal Procedure Code praying to enlarge the petitioner on bail in Crime No.169/2017 of Buntwala town police station, D.K., District for the offence punishable under Sections 143, 147, 148, 447, 448, 302, 120B, 201 read with 149 of IPC.
This Criminal Petition 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.7 under Section 439 of Cr.P.C. seeking his release on regular bail in Crime No.169/2017 of Bantwal Police Station for the offence punishable under Sections 143,147,148, 447,448,302, 120B, 201 read with Section 149 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 21.06.2017, when the complainant and other went near Ramanagara in search of deceased Ashraf, they saw four persons assaulting the deceased with talwar and two persons were also standing there. By seeing the complainant and others, all of them were fled away. Immediately, the deceased was taken to hospital, but there he was succumbed to death. Hence, a case was registered and complaint came to be filed.
4. Submission of the learned counsel for petitioner-accused No.7 is that initially, a case was registered against unknown persons. The earlier petition filed by the petitioner-accused No.7 was came to be dismissed by this Court and against the said order, he has preferred SLP.NO.6986/2018 and the Hon’ble Apex Court by order dated 03.12.2018 has given liberty to this Court to consider the said fact with reference to the facts and circumstances of the case. He further submitted that identification of the said witness and after arrest of the petitioner discloses that they came to be known to them and his name is not mentioned in the complaint. He further submitted that already other accused persons, under similar facts and circumstances, were released on bail. On the ground of parity, the petitioner-accused No.7 is also entitle to be released on bail. On these grounds, he prays to allow the petition and release the petitioner-accused No.7 on bail .
5. Per contra, learned High Court Government Pleader vehemently argued and submitted that the charge sheet came to be filed would show that the petitioner-accused along with other accused persons by constituting an unlawful assembly, assaulted the deceased brutally with talwar and caused grievous injuries and as a result of the same, he died. He further submitted that the witnesses have identified the assailants and even identification parade was held in this behalf. He further submitted that there is prima facie material as against the accused-petitioner. On these grounds, he prays to dismiss the petition.
6. I have carefully and cautiously gone through the contents of the complaint and other materials, which have been produced along with the petition.
7. It is not in dispute that earlier, the petitioner-accused No.7 moved this Court for grant of bail and the same was rejected. Against the said order, petitioner filed SPL No.6986/2018. In the said petition, the Hon’ble Apex Court has passed the order. By going through the said order, it indicates that leave has been granted to the petitioner to move the Court for grant of bail afresh, if he is so preferred, to re-consider the bail application which has been filed by him. Same has been already rejected. As could be seen from the records that general allegations have been made against the accused persons by constituting an unlawful assembly, assaulted the deceased with talwar. There is no specific over-acts stated against each of the accused persons. Be that as it may, under the same facts and circumstances, some of the accused persons are already released on bail by this Court as well as by the learned District Judge. Under the said facts and circumstances on the ground of parity, the petitioner-accused No.7 is also entitled to be released on bail.
8. Though it is contended by the learned High Court Government Pleader that there is material as against accused No.7, but that is also similarly with that of the remaining accused, it has to be considered at the time of trial. Under the said facts and circumstances, petition is allowed and the petitioner- accused No.7 is ordered to be released on bail with following conditions.
Petitioner/accused No.7 is ordered to be enlarged on bail in Crime No.169/2017 of Bantwal Police Station for the offences punishable under Sections 143, 147, 148, 302, read with Section 149 of IPC subject to the following conditions:
1. Petitioner-accused No.7 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 leave the jurisdiction of the Court without prior permission.
3. He shall not tamper with the prosecution evidence directly or indirectly.
4. He shall regularly appear before the Court during the trial.
Sd/- JUDGE ag