IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1st DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL PETITION NO.6705/2018 BETWEEN :
Sri Mohammed Shameer S/o Aliyabba Aged about 27 years R/at Near Abbaka circle Near Salafi Masjid, Ullal Mangaluru-575 003.
(By Smt. Haleena Ameen, Advocate for Sri S.Vishwajith Shetty, Advocate) AND :
State of Karnataka by South Police Station, Mangaluru, Represented by State Public Prosecutor High Court Buildings Bengaluru-560 001 (By Smt. Namitha Mahesh B.G., HCGP) … Petitioner … Respondent This Criminal Petition is filed under Section 439 of Cr.P.C praying to enlarge the petitioner on bail in Crime No.7/2018 (C.C.No.2455/2018) South Police Station, Mangaluru City, for the offences punishable under Sections 448 and 302 r/w. Section 34 of Indian Penal Code.
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 accused No.2 under Section 439 of Cr.P.C. praying to release him on bail in CC.No.2455/2018 on the file of JMFC II Court, Mangaluru arising out of Crime No.7/2018 of Mangaluru South Police Station for the offences punishable under Sections 448 and 302 r/w. Section 34 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 on 13.1.2018 at about 8.00 a.m. when the wife of the deceased went to the hospital, she received a phone call informing that her husband has been stabbed with knife by the accused persons and he has been shifted to Fr.Muller Hospital, Kankanady. Immediately she rushed to the hospital where the doctor informed her about the death of her husband. On enquiry with her mother, complainant came to know that at about 9.05 a.m. two persons rang the calling bell and when the mother opened the door, the said two persons asked about the deceased Iliyas and they went inside the house where the deceased was sleeping and they stabbed him with knife. It is further alleged that the deceased was active member in a Target Group and he had enmity with Dawood of Dharmanagar and Safwan of Surthkal and accused with enmity have committed the murder of the deceased. On the basis of the complaint, a case has been registered.
4. It is the submission of the learned counsel for the petitioner that already accused Nos.3, 5 and 6 have been released on bail and on the ground of parity accused No.2-petitioner is also entitled to be released on bail. She further submitted that though the alleged incident has been witnessed by the mother of the complainant, she has not filed any complaint. There are variations in the statements of the complainant and her mother, the eye witness to the alleged incident. Already charge sheet has been filed and if the entire charge sheet material is looked into, the only allegation which has been made as against the petitioner-accused No.2 is that he caught hold of the deceased and at that time, it is accused No.1 who stabbed with knife on the chest of the deceased. She further submitted that the name of the petitioner was not found in the complaint and FIR. Subsequently on the basis of the further statement of the complainant, the name of the petitioner has been included. She further submitted that the petitioner is ready to abide by any conditions imposed by this Court and ready to offer sureties. On these grounds, she prayed to allow the petition.
5. Per contra, the learned HCGP vehemently argued and submitted that the petitioner along with accused No.1 entered the house of the deceased and facilitated accused No.1 to commit the alleged offence. She further submitted that the petitioner has given his voluntary statement and he is a rowdy element. If he is released on bail, again he may indulge in similar type of criminal activities. There is material to show the involvement of the petitioner in the offence which is punishable with death or imprisonment for life. On these grounds, she prays 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.
7. On close reading of the material which has been made available, it would indicate that it is accused No.1 who stabbed the deceased with knife and at that time, the petitioner was holding the deceased. Be that as it may, whether petitioner is involved in the said offence or not is a matter which has to be considered and appreciated only at the time of trial. As per the charge sheet material no serious overt acts are alleged as against the petitioner-accused Nos.. Already accused Nos.3, 5 and 6 have been released on bail and even on the ground of parity, the petitioner is also entitled to be released on bail.
Taking into consideration the above said facts and circumstances of the case, petition is allowed. Accused No.2-petitioner herein is enlarged on bail in CC.No.2455/2018 on the file of JMFC II Court, Mangaluru arising out of Crime No.7/2018 of Mangaluru South Police Station for the offences punishable under Sections 448 and 302 r/w. Section 34 of IPC, subject to the following conditions:-
i) Petitioner shall execute a personal bond for Rs.2,00,000/- (Rupees two Lakhs only) with two sureties for the like sum to the satisfaction of the trial Court.
ii) He shall not tamper with the prosecution witnesses in any manner.
iii) He shall not indulge in similar type of criminal activities.
iv) He shall not leave the jurisdiction of the trial Court without prior permission.
v) He shall mark his attendance on 1st of every month between 10.00 a.m. and 5.00 p.m. before the jurisdictional police till the trial is concluded.
Sd/- JUDGE *ck/-