IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7th DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL PETITION NO.154/2019 BETWEEN :
Sri Byre Gowda S/o Munegowda Aged about 35 years Driver, Araluru Village Jadigenahalli Hobli, Hosakote Taluk Bengaluru Rural District-562 114.
(By Sri H. Ramachandra, Advocate) AND :
… Petitioner 1. The State of Karnataka The Police Inspector, by Thirumalashettyhalli Police Station Bengaluru-560 001.
Represented by State Public Prosecutor High Court Building, Bengaluru-560 001.
2. Smt. Narayanamma W/o late Sriramappa Aged about 35 years R/at Chikkagattiganabbe Grama Kasaba Hobli, Hoskote Taluk Bengaluru Rural District-562 114.
(By Sri M. Divakar Maddur, HCGP) … Respondents This Criminal Petition is filed under Section 438 of Cr.P.C praying to enlarge the petitioner on bail in the event of his arrest in Crime No.83/2018 (Spl.C.C.No.292/2018) of Thirumalashettyhalli Police Station, Bengaluru, for the offences punishable under Sections 143, 147, 148, 363, 324, 355, 302, 506, 327, 114 r/w Section 149 of Indian Penal Code and Section 3(1)(r), 3(1)(s) of SC/ST (POA) Act.
This Criminal Petition coming on for orders this day, the Court made the following:-
O R D E R The present petition is filed by the accused No.3 under Section 438 of Cr.P.C. praying to release him on anticipatory bail in Crime No.83/2018 of Thirumalashettyhalli Police Station for the offences punishable under Sections 143, 147, 148, 363, 324, 355, 302, 506, 327, 114 r/w. Section 149 of IPC.
2. I have heard the learned counsel for the petitioner and the learned HCGP for the respondent- State.
3. The gist of the complaint is that the complainant belongs to Scheduled Caste. She is staying along with her deceased husband and children in Chikkagattiganabbe Village. Her deceased husband was working in the house of Narayana Gowda since three years. Bharath, Manjunath, Ranjit, Shankar, Rajesh and Byregowda were also working with him and they were doing the business of black money. It is further alleged that on 9.4.2018 at about 7.00 p.m., the said persons who were working with the deceased came and took the deceased by telling that Narayanagowda @ Nani has called him. At about 9.30 p.m. , the deceased called his cousin over phone and informed that the said persons have kidnapped him and they have dropped him in a layout near Haraluru Village and he is getting afraid and asked him to come to the said place. Immediately, they went at about 11.00 p.m. and there they found that the accused persons were assaulting the deceased with chappal and abusing him in filthy language and they also abused him by taking the name of his caste. They told that their business secrets have been disclosed and they have suffered loss of Rs.50 to 60 lakhs and if he is left, he will send them to jail and with an intention to commit his murder, they assaulted him with sticks of nilgiri tree, as a result of which deceased sustained injuries to his head and other parts of the body. It is further alleged that some other accused assaulted him with iron rods. Thereafter, the accused persons threatened him and left. The deceased was taken to the hospital there he died on 11.4.2018.
4. It is the submission of the learned counsel for the petitioner that accused No.1 has already been released on bail. He further submitted that charge sheet has been filed and many accused persons have been deleted who are considered to be the main accused in the alleged incident. He further submitted that accused No.1 and other accused persons have already been granted bail and even on the ground of parity the petitioner is entitled to be released on bail. Relying on the decision of the Hon’ble Apex Court in the case of Dataram Singh Vs. State of Uttar Pradesh & another, reported in AIR 2018 SC 980 he further submitted that the custodial continuation of the petitioner is not a rule and the general rule is that the bail has to be granted and the discretion has to be exercised. He further submitted that the petitioner 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 by granting anticipatory bail to the petitioner.
5. Per contra, the learned HCGP vehemently argued and contended that the petitioner along with other accused persons abused the deceased by taking the name of his caste. He has also actively participated to the effect that he assaulted the deceased with nilgiri stick on his head and on the other parts of the body. Even the PM report clearly goes to show that the deceased has gone into coma and ultimately he died due to head injuries. There are eye witnesses to the alleged incident and the presence of the accused also noticed in their statement. He further submitted that the petitioner is absconding and an absconded charge sheet is filed as against him. He was not available for the purpose of investigation and interrogation. If he is released on bail, he may abscond and may not be available for trial. On these grounds, he prayed to dismiss the petition.
6. I have carefully and cautiously gone through the submissions made by the learned counsel for the parties and perused the records including the contents of the complaint and other material. On going through the same, it would indicate that the petitioner was also present and he has assaulted the deceased with nilgiri stick on his head, hands, legs and back thereby he has also actively participated in the alleged incident. PM report also indicates the fact that the death was due to injuries suffered to the head. I have gone through the decision quoted by the learned counsel in the case of Dataram Singh Vs. State of Uttar Pradesh & another (cited supra). At paragraph-3 of the said decision, it has been observed as under:-
“3.There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.”
7. The aforesaid proposition of law has to be kept into view and the discretion has to be exercised by the judge while considering the bail application keeping in view the facts of the case. If that aspect is kept into view and looked into, I am of the considered opinion that there is material to show that the petitioner has actively participated in the alleged crime and this is not a fit case to exercise the discretion under Section 438 of Cr.P.C. to release him on bail when he has been absconded from the date of the complaint. In the aforesaid decision, it has been observed that the accused was present and was not arrested by the Investigating Officer. Under such circumstances, the aforesaid observations has been made. No such situations are existed in the facts of the present case.
In that light, the petition is dismissed.
However, liberty is reserved to the petitioner to surrender himself before the trial Court and move the application for regular bail. If such an application is filed by the petitioner, the trial Court shall consider the said application and dispose of the same in accordance with law without being in any way influenced by any of the observations made during the course of this order.
*ck/-
Sd/- JUDGE